I Like My Funds Extra Slushy

Monday, April 30, 2012
Readers of this blog are aware of my fixation on transparency. Readers of my other blog, Again? Really?, know that I am particularly offended by slush funds, large amounts of taxpayer money redirected by government entities to surreptitiously benefit pet causes or personal gain. The slush finds of a local government might be in the thousands or possibly a million dollars or so. It takes the federal government to create a billion dollar boondoggle.

Insured Americans will be paying a new fee as of October 1, 2012. Anthem Blue Cross sent a warning announcement last week to advise us that they will be adding the charge to our bills. “The Affordable Care Act (PPACA) established the Patient-Centered Outcomes Research Institute (PCORI) to explore the effectiveness, risks, and benefits of medical treatments. This study is also known as Comparative Effectiveness Research (CER). PCORI is a nonprofit, nongovernmental organization supported by a trust fund that is financed in part by fees from health plan insurers.”

The fees are $1 per covered person in the first year. $2 per person in the second year. And after two years? The $2 per person per year will be adjusted for medical inflation.

Bureaucracies, in general, like acronyms, but the combination of acronyms and money make for a government love affair.

Comparative Effectiveness Research came into prominence as part of President Obama’s American Recovery and Reinvestment Act of 2009. $1.1 Billion was allocated.
  • $300 Million for the Agency for Healthcare Research and Quality.
  • $400 Million for the National Institutes of Health.
  • $400 Million for the Office of the Secretary of Health and Human Services.
This wasn’t a beginning, middle and end. This was seed money.

The Department of Health and Human Services (HHS) explained that CER “compares treatments and strategies to improve health. This information is essential for clinicians and patients to decide on the best treatment. It also enables our nation to improve the health of communities and the performance of the health system.”

Gosh that sounds good.

According to the National Cancer Institute, CER has both its proponents and detractors. One key issue was brought up by Jeffrey Kindler, CEO of Pfizer, who wondered whether the results from Comparative Effectiveness studies would be “automatically linked” to insurance coverage decisions. In other words, will healthcare in the future become one size fits almost all and too bad about the rest.

In his paper “Comparative Effectiveness Research and Kindred Delusions”, Norton Hadler, MD expanded on the difference between efficacy and effectiveness.

I have nothing to add to that debate. My only question is “How Much?” How much money, your money in taxes and your money in fees, are we spending on this and who is getting it?

Billions of dollars funneled through the Department of Health and Human Services became even more of an issue last week when the Government Accountability Office (Yes, that GAO) found that the Obama administration was wasting $8.3 Billion on a questionable Medicare program.

As part of a “Demonstration Project”, HHS has created an experimental program to study the effects of money on the insurance market. This experiment is to award bonuses to high quality managed care Medicare policies known as Medicare Advantage. High quality, like intellectual honesty, was one of the first victims of this scheme. To make a long story short, the money, most paid out in the next three years, covers the cuts that were made in these popular programs by the President’s health care law. The PPACA took money away, but Health and Human Services put the money back in through the back door.

The independent Medicare Payment Advisory Commission panned the misdirection. The Republicans think that this looks suspiciously like a re-election driven decision. The New York Post didn’t bury the lead. They labeled it a political slush fund.

What we are talking about is money. We know where it comes from, US. What we don’t know is where it is going and why. Unlimited funds funneled through Kathleen Sebelius and her politicized Department of Health and Human Services are sure to arouse suspicions. Add to this an $8.3 Billion experiment and you have the potential for a real problem.



Objection to Bill of Particulars Filed in U.S. v. Khouli et al.

The defendants have more than enough information.  So says the government’s 17 page objection to a bill of particulars filed by defendants in the case of United States v. Khouli et al.

Earlier this month co-defendants Joseph A. Lewis II and Salem Alshdaifat submitted a bill of particulars requesting detailed discovery from the prosecution.  The two were indicted last year in a New York federal district court in for their alleged roles in trafficking antiquities.  They want information from the prosecution about which ports were used to import the antiquities, what documents were provided to Customs, and which representations on Customs forms were false.  Mousa "Morris" Khouli, another co-defendant and an antiquities dealer, pleaded guilty to charges on April 18.

Assistant United States Attorney Karin Orenstein on Aprl 27 filed an objection to the bill of particulars, arguing “The defendants’ demands for particulars seek granular detail of the government’s proof, and the government has already provided more than the law requires. The Indictment and the discovery, which includes a verified civil complaint and multiple search warrants, provide the defendants with all the information they need to understand the specific acts of which they are accused.”

Attached to AUSA Orenstein’s objection is a sheet outlining the information that has been provided to the defense. It lists such items as bank records; search warrant affidavits concerning homes, emails, and businesses; postal records; UPS records; photographs of antiquities; Paypal records; travel records; customs documents; insurance documents; and Go Daddy accounts.

Homeland Security's Seize and Send Policy on Display at Repatriation Ceremony

Friday, April 27, 2012
Artifact returned to Italy by ICE.
Courtesy ICE

Immigration and Customs Enforcement (ICE) this week announced successful efforts to combat crime in the United States.  In the last few days, ICE's Homeland Security Investigations (HSI) directorate headlined these results:
  • "9 suspects arrested in HSI probe targeting Fresno-area phony document mills"
  • "637 gang members and associates arrested during Project Nefarious" 
  • "5 indicted for allegedly selling counterfeit goods" 
Yesterday, however, the federal agency announced something other than arrests or indictments.  An April 26, 2012 press release proclaimed, "ICE returns stolen and looted art and antiquities to Italy."

While many of ICE's powerful investigative arms probe violations of federal law and pursue justice through the criminal court system, the Cultural Property, Art and Antiquities Program at HSI continues to repossess artifacts, hold repatriation ceremonies, and ship potential court evidence overseas. Arrests are infrequently announced, and indictments for violating federal smuggling, theft, false statement, or wire transfer laws are rare.

The contrast between ICE's typical approach to cultural property crimes and its customary handling of forfeited documents, human trafficking, counterfeit goods, and other illegal activities is striking.  A few of this week's press releases illustrate:
  • After arresting the nine men for trafficking in forfeiting documents, special agent Clark Settles said that the  "goal in these investigations is to identify and ultimately dismantle the criminal organizations behind these highly lucrative schemes."
  • After 637 gang members and associates were arrested, HSI Executive Associate Director James Dinkins announced that "[t]he goal of Project Nefarious was to identify, locate, arrest, prosecute and remove gang members and associates affiliated with human smuggling and trafficking organizations."
  • After a grand jury indicted five people for selling counterfeit goods, ICE announced that it "plays a leading role in targeting criminal organizations responsible for producing, smuggling and distributing counterfeit products. HSI focuses not only on keeping counterfeit products off our streets, but also on dismantling the criminal organizations behind such illicit activity."
Marble sculpture returned to Italy.
Courtesy ICE
But yesterday's press announcement proclaiming the repatriation of looted and stolen antiquities to Italy simply describes a "ceremony" to return "[t]wo 2,000-year-old ceramic vessels, one Roman marble sculpture, one Renaissance painting and three music sheets from choir books dating back to the 13th century ...."  Authorities did not announce any arrests or indictments despite descriptions of criminal activity by the use of terms such as "looted," "illegally imported," "smuggled," " illicit trafficking," "organized crime," and "stolen."

In other criminal investigations, HSI agents investigate cases, work with prosecutors to develop and sift through evidence, present the results to grand jurors, and hold lawbreakers accountable.  In illegal antiquities trafficking cases, however, Homeland Security Secretary Janet Napolitano said it best during Thursday's ceremony, "We will continue to work to ensure cultural artifacts and treasures that were stolen and entered this country illegally are recovered and returned to their rightful home nations."

This "seize and send" strategy requires rethinking to coincide with the "investigate and indict" mission that other HSI investigations pursue to dismantle and deter criminal activity.

ICE Director John Morton said yesterday that "ICE is serious about reining in art and antiquity thieves, smugglers, and traffickers."  Yet antiquities thieves, smugglers, and traffickers must be brought to trial.  And while ICE poignantly warned in Thursday's press release that anyone "involved in the illicit trafficking of cultural property, art and antiquities can face prison terms of up to 20 years, fines and possible restitution to purchasers of the items," criminals must first be indicted before they can face such consequences in a U.S. district court.  Only then can the "antiquity thieves, smugglers, and traffickers" who are targeted by ICE be held to account for violating federal criminal laws.

CONTACT: www.culturalheritagelawyer.com

The Latest State Department Cultural Objects Determinations

Wednesday, April 25, 2012
Given the discussion about the law known as Immunity from Seizure Under Judicial Process of Cultural Objects Imported for Temporary Exhibition or Display and the current bill on Capitol Hill to clarify that law, it is worth noting the kinds of items from abroad that receive immunity consideration from the U.S. Department of State.

The Federal Register published the latest cultural objects determinations yesterday.  The notice issued covers items destined for New York's Museum of Modern Arts's forthcoming exhibit titled "Quay Brothers: On Deciphering the Pharmacist's Prescription for Lip-Reading Puppets."  MoMa's web site explains that "[f]or over 30 years, they have been in the avant-garde of stop-motion puppet animation and live-action movie-making in the Eastern European tradition ... and have championed a design aesthetic influenced by the graphic surrealism of Polish poster artists of the 1950s and 1960s."

The determinations made by the State Department under the federal immunity law are that the imported objects are of (1) of cultural significance, (2) intended for temporary, nonprofit exhibition, and (3) in the national interest.

CONTACT: www.culturalheritagelawyer.com

Czech Republic Sued in Florida for Return of Art

Monday, April 23, 2012

National Gallery in Prague.
Source: Chmee2.  CC.
A newly created Florida entity filed a civil complaint on April 19 in federal district court against the Czech Republic and two of its cultural institutions.  The lawsuit of Victims of Holocaust Art Theft v. Czech Republic; National Gallery in Prague; Museum of Decorative Arts of Prague seeks the return of Nazi looted art, according to a complaint filed in the United States District Court, Southern District of Florida, Palm Beach Division. (Docket 12-80420-CIV)

The suit claims that 125 pieces of art were plundered during World War II, but the plaintiff specifically seeks the return, or the cash equivalent, of at least 50 pieces valued at over $50 million.  The complaint states that the “Popper Collection” was “among the valuable art and other objects that was looted and seized by the Nazi authorities . . . .”

Richard and Regina Popper, owners of the “Popper Collection,” are said to have been “stripped of their nationality and citizenship rights” and “were deported from Prague to the Lodz Ghetto and murdered in Lodz after arrival (in 1941 or 1942); however the exact date of their murder is not known.”

According to the court complaint, Victims of Holocaust Art Theft is a Florida business formed by Edward D. Fagan and Michal Klepetář, who is a descendant of Richard and Regina Popper.  Documents submitted to the Florida secretary of state's office show that Fagan, who lists a Boca Raton address, registered the fictitious name (i.e. trade name) on April 18, one day before filing the federal lawsuit on behalf of Victims of Holocaust Art Theft.

The lawsuit claims jurisdiction over the Czech Republic because of its commercial activities in the United States.

It Sucks To Be Poor

It sucks to be poor. It is nobody’s goal in life to be poor, to wonder how you are going to feed your family, keep a roof over your head, or to be unable to afford the most basic of needs or wants. I’ve been poor, not homeless or destitute, but close enough to appreciate the fear and uncertainty that comes with an overdrawn back account and a baloney and tater tot dinner.

I’ve never received government assistance, not even unemployment compensation. So I have never had to check in with a government employee, told where I could live, or what groceries I could buy. And when I needed to take my children to the doctor, I’ve always had my choice of all of the pediatricians in town.

The poor have Medicaid.

Medicaid. Fraud ravaged. Doctor hated. Taxpayer resented. Medicaid. And no one likes Medicaid less than the people it was designed to help.

There are 1.7 million Ohioans receiving state funded medical assistance. Ohio is revamping Medicaid, again.

Eleven companies recently participated in a complex bidding process to win a piece of this action. Five won the opportunity to provide coverage. Five lost and are filing appeals. One, Anthem Blue Cross the #1 insurer of Ohioans, shrugged off its loss and walked away.

Medicaid, the State of Ohio’s single payer health care system for the poor, appears to be mired in controversy. As reported in the Columbus Dispatch, there are charges of more than just irregularities, mistakes, and a shocking lack of transparency. There may have been actual fraud and false statements on the applications.

Some of the companies that were shut out contacted London based Barclays to analyze the process. They found “Scoring results indicate considerable inconsistencies among bidders…Scoring processes are always complex, especially in markets this large, but typically not to this degree.”

In a rush to save $1.5 Billion (real or imagined) in the next two years, the state may have selected up to three vendors thanks to applications enhanced with inflated statistics. Though the process was supposed to “improve the coordination of care for 1.7 million recipients and improve health”, it may, instead, have been just one more arbitrarily awarded government contract.

It is one thing to entrust your children’s health to the lowest bidder. It is even worse to be herded to a facility or provider that lacks the integrity to compete fairly. But when you are a football, when you are tossed from one player to another, you don’t have much say in the process.

But then again, it sucks to be poor.



The Foreign Cultural Exchange Jurisdictional Immunity Clarification Act (S.2212) Should Be Passed

Friday, April 20, 2012

The Decree Stele, loaned by Greece,
is one of many cultural objects
routinely granted immunity by the U.S.
Photo courtesy of US State Dept.

The Foreign Cultural Exchange Jurisdictional Immunity Clarification Act (FCEJICA or S.2212) is a good bill worthy of passage.  Its adoption by the U.S. Senate would support international cultural exchange by strengthening our country’s longstanding commitment to promote foreign lending of objects to American museums.  Foreign lending benefits the American public and provides an important mechanism to supply our country’s museums with documented archaeological artifacts.  In an otherwise sharply divided Congress, it is noteworthy that the bill was sponsored and passed in the House (H.R. 4086), and now sponsored in the Senate, by members from both sides of the aisle. 

The proposed bill clarifies the spirit of a federal law in force for over 35 years, but weakened in the last few years. Congress in 1965 passed IFSA (formally known as the Immunity from Seizure Under Judicial Process of Cultural Objects Imported for Temporary Exhibition or Display).  Lawmakers passed it because they wanted to promote the importation of art.  They wanted to let foreign art lenders know with certainty that their cultural works would not become entangled in litigation once on American soil.

IFSA’s statutory language specifically protects against potential judicial seizure of imported objects of cultural significance intended for temporary, nonprofit exhibition. The law prevents a civil litigant from seizing temporarily imported fine art to satisfy a judgment in a lawsuit, for example.

The immunity given by IFSA is not automatic.  Nonprofit museums must apply for this immunity when seeking to import foreign cultural objects for temporary exhibit.   Any immunity that may be granted by the President of the United States, through his designee, is specific to the artwork; the immunity does not apply to the museum.

To acquire this immunity, a museum must submit an application to the U.S. Department of State. The application includes a description of the item covered, its provenance, its exhibition location, a description of the object’s cultural significance, and a description of why the temporary exhibition is in the national interest.  With regard to provenance, the State Department asks an applicant to certify that it has “undertaken professional inquiry … into the provenance” and that it either knows, does not know, or does not have reason to know “of any circumstances … that would indicate the potential for competing claims of ownership ….”  If there is reason to know of any potential dispute concerning the object, the applicant must disclose it.  The President then authorizes the State Department “(1) to determine that any work of art or other object to be imported into the United States … is of cultural significance, (2) to determine that the temporary exhibition or display of any such work of art or other object in the United States is in the national interest, and (3) to cause public notices of the determinations referred to above to be published in the Federal Register.”

Since IFSA was passed, many objects from abroad have been immunized from potential seizure.  Several requests already have been granted so far this year.  For example, African objects loaned to the Smithsonian Institution's National Museum of African Arts were granted immunity.  They will be in a special exhibition called “African Cosmos: Stellar Arts.”  The “Decree Stele” from the National Archaeological Museum in Athens, Greece is another object granted immunity.  It will be on loan at the Getty Museum in California through 2015.  Meanwhile, the Jewish Museum in New York obtained immunity for imported pieces that are included in its current exhibition titled “EdouardVuillard: A Painter and His Muses, 1890-1940.”  And the Metropolitan Museum of Art's show titled The Dawn of Egyptian Artfeatures pieces immunized by IFSA in February.

Loans promote cultural exchange, which is of vital public benefit.  Cultural exchange enlightens our minds to other civilizations; inspires school children to become archaeologists, historians, and art lovers; causes us to care about our history and heritage; and promotes understanding between citizens of different nations, languages, religions, and races.  The FCEJICA will promote international cultural exchange by shielding foreign lenders and their art from unforeseen lawsuits, including those that could be frivolous. 

Because cultural exchange through foreign lending is a benefit to all Americans, it is important to eliminate reservations that foreign lenders may have when choosing to exhibit cultural objects in the United States.  Foreign lenders must be encouraged to lend art and artifacts to American museums.  Complete immunity can provide an incentive.   Complete immunity shields both the object loaned and the lender from civil lawsuits in a way that partial immunity cannot.  Indeed, partial immunity is no immunity at all. 

Partial immunity is arguably all the State Department can give under IFSA if one follows the reasoning of the federal district court’s decision in Malewicz v. City of Amsterdam (2005).  That case applied the Foreign Sovereign Immunities Act (FSIA) and undermined IFSA’s immunity.  The FSIA is a law that generally protects foreign states from lawsuits.  The law was interpreted by the Malewicz court to extend jurisdiction over foreign governments when their artwork was displayed in the U.S. even when immunity had been given to the art under IFSA.  That is because the lending of art objects was deemed a “commercial activity.”  The FSIA says that “[a] foreign state shall not be immune from the jurisdiction of courts … in which rights in property taken in violation of international law are in issue and that property … is present in the United States in connection with a commercial activity carried on in the United States by the foreign state … [or an] instrumentality of the foreign state ….”  (italics added). 

In Malewicz, the heirs of Kazimir Malevich sued Amsterdam in federal court in Washington, DC to either recover artworks that the city’s Stedelijk Museum loaned to American museums or to acquire $150 million in damages.  The heirs claimed that the foreign museum unlawfully obtained the paintings.  Amsterdam, meanwhile, argued that IFSA protected it from a lawsuit.  The federal court ruled that Amsterdam had engaged in “commercial activity” under the FSIA by loaning the art to the American institutions.  While IFSA may protect the actual artwork from seizure, the FSIA did not protect Amsterdam from related damages, said the court. 

Congress introduced S. 2212 to restore meaning to IFSA’s immunity, erasing any potential conflict between IFSA and the FSIA.  The bill adds a new section to the FSIA that protects foreign nations and their entities from lawsuits related to loaned cultural objects, excepting Nazi looted art.  This effort to strengthen IFSA is meant to assure foreign lenders that they will not be targets of civil litigation simply because they decide to have their art or artifacts exhibited in the U.S.

Securing foreign lending opportunities for American museums is a goal of IFSA and S.2212, and foreign lending serves to provide one solution to the problem of illegally trafficked antiquities.  We know that undocumented and unscientifically excavated artifacts have ended up in museum collections.  Italy, among other nations, has recovered a number of looted artifacts from prominent institutions across America in recent years. It worked out agreements whereby looted cultural objects were repatriated to the country.  The Italians, in turn, agreed to supply long term loans to museums such as the Metropolitan Museum of Art in New York and the Museum of Fine Arts in Boston.  Adoption of the FCEJICA would serve to strengthen these and similar lending arrangements.

The assurances supplied by S.2212 would give greater comfort to Italy, Turkey, Egypt, Peru, India and other archaeologically rich nations that are willing to supply authentic, untrafficked artifacts of the past to American museums.  Additionally, the FCEJICA would give source nations protection from civil suits when archaeological or ethnological objects are loaned pursuant to Article II recommendations.  Article II recommendations are often outlined when the United States adopts Memoranda of Understanding (MoU) with foreign countries under the Cultural Property Implementation Act (CPIA).  The MoU implements import restrictions covering archaeological and ethnological material in jeopardy, and Article II may say, as in the case of the MoU with Guatemala: “The Government of the Republic of Guatemala shall use its best efforts to facilitate the exchange of its archaeological objects and materials under circumstances that do not jeopardize its cultural patrimony, such as temporary loans for exhibition purposes and scientific examination.” (italics added)

The State Department should always carefully examine IFSA requests that involve ancient artifacts or at-risk cultural objects.  America naturally wants to do its best not to inadvertently immunize illegally dug-up archaeology or fine art stolen during a time of conflict.  Avoiding a situation like the one in the Malewicz case is important.  Statutory language might be adopted by the Senate that would require a reasonable assessment by the State Department of the provenance surrounding suspicious or at-risk objects—like those listed in CPIA bilateral agreements, those contained on ICOM Red Lists, or those that are suspected to have been stolen during times of war.  As described above, the State Department already requires immunity applicants to list information about provenance and potential legal claims surrounding a cultural object so that it can review this information.  Given that a review process already is in place, S.2212 might codify that the State Department shall conduct a reasonable inquiry into both the applicant's provenance investigation and the potential legal liabilities that may be connected with an object before an immunity request is approved.

There is always some language in a bill that can be tweaked, but reaching legislative perfection should not be an obstacle to passage of the FCEJICA in the U.S. Senate.  Lenders need clear and iron-clad notice from America that their artworks or artifacts on loan--or that they themselves--will not be caught up in unexpected and expensive court proceedings simply because they choose to exhibit their artifacts or fine art to Americans.

For additional perspective see Derek Finchman's Illicit Cultural Property.

CONTACT: www.culturalheritagelawyer.com