Employers use federal law to deny benefits
 
WASHINGTON - Dying of cancer, Thomas Amschwand did everything he was told to make sure his wife would collect on the life insurance policy he had through his employer.
 

"He was obsessed with dotting every `i' and crossing every `t'," Melissa Amschwand-Bellinger recalled about her husband, who died in 2001 at age 30.

But Spherion Corp., the temporary staffing company where Amschwand worked, told Amschwand-Bellinger she would not receive any of the $426,000 in benefits she believed she was due. When she went to court, Spherion succeeded in getting her lawsuit thrown out. The Supreme Court on June 27 refused to review the case.

Amschwand-Bellinger received a refund of the few thousand dollars in insurance premiums she and her husband dutifully had paid. The total, she said, would not cover the costs of his funeral.

The story has played out often under the federal Employee Retirement Income Security Act. Designed to protect employee benefits, the law has been used by employers as a shield against suits.

Federal appeals courts, interpreting Supreme Court decisions dating to 1993, consistently have said companies that offer health, life and retirement benefits under ERISA cannot be sued for large amounts of money, or damages. Instead, they can be sued only for typically smaller sums such as Amschwand's insurance premiums.

Several federal judges have bemoaned the unfairness even as they have felt constrained to rule in favor of employers.

"The facts ... scream out for a remedy beyond the simple return of premiums," Judge Fortunato Benavides of the New Orleans-based 5th U.S. Circuit Court of Appeals said in the Amschwand case. "Regrettably, under existing law it is not available."

The Bush administration has argued that the appeals courts are misreading the precedents and has asked the high court at least twice to clarify the earlier rulings. So far it has refused.

Congress, which could amend ERISA to make clear such suits are allowed, also has taken no action.

The result, in the view of ERISA experts, the administration and some lawmakers, is perverse.

"The beneficiary under the policy didn't get the promised benefit," said Colleen Medill, an expert on ERISA at the University of Nebraska-Lincoln. "To say we're just going to return your premiums, that's a total farce. That's not what they paid the premiums for. They paid them for the benefits."

Sen. Patrick Leahy, chairman of the Senate Judiciary Committee, said at a recent hearing that before ERISA became law, employees clearly could sue for benefits in state courts.

The court rulings, said Leahy, D-Vt., have left people "more vulnerable than they were before the law was passed."

Spherion's decision to deny benefits to Amschwand-Bellinger turned on an odd set of facts. Spherion, which employs about 300,000 people, switched insurers after Thomas Amschwand was diagnosed with a rare form of heart cancer. The new policy did not take effect until an employee worked one full day. Spherion never informed Amschwand of the requirement.

Amschwand asked repeatedly whether there was anything else he needed to do and was told no. He asked that the new policy be sent to him. Spherion never did so.

He died without returning to work. His widow said he easily could have worked a day if that was what it took to activate the new policy. Spherion could have waived the one-day-of-work provision, as it did for other employees but not for Amschwand.

Spherion spokesman Kip Havel issued a brief statement when contacted by The Associated Press after the high court declined to review the case. "We are pleased the court has made its decision and the matter has finally been resolved," Havel said.

The court also recently turned down an appeal from Louis Gerard "Gerry" Goeres, who sued Charles M. Schwab & Co. over hundreds of thousands of dollars in retirement plan benefits.

For 16 months, Schwab mistakenly refused to acknowledge Goeres as the beneficiary in the retirement plan of his domestic partner, Stephen Ward, a Schwab employee who died in 1999. By the time Schwab acknowledged its error, the value of the account had declined by more than $500,000. Goeres sued for the rest. Federal courts dismissed the suit. "Unfortunately, legal relief is not available," U.S. District Judge Charles Breyer said in ruling against Goeres.

"You know the Schwab commercial, `Talk to Chuck?'" Goeres said. "I thought if Chuck knew this, he'd say, 'Oh my God, this is so wrong.' I live on naive dreams."

Schwab said in court papers that Goeres could have taken legal action soon after Ward's death, when he first was told he was not the beneficiary.

Amschwand-Bellinger said the cases show the need for either the court or Congress to provide "some sort of meaningful remedy for employees when employers have a breach of fiduciary duty."

A Texas native who lives in an unincorporated Houston suburb, she has since remarried and has an 18-month-old daughter. She is president and executive director of the Amschwand Sarcoma Cancer Foundation, which she founded with her first husband.

She recognizes that she is more fortunate than many others who have fought similarly futile battles for benefits under ERISA. "What if we had had children and I was a stay at home mom?" said Amschwand-Bellinger, who previously worked for a public hospital system. "What if I was 60 years old, with no skill sets, and I had to go back to work?"

August 20, 2007
Military Uses Genetic Tests To Deny Benefit Claims

"For more than 20 years, the armed forces have held a policy that specifically denies disability benefits to servicemen and women with congenital or hereditary conditions" -- a practice that "would be illegal in almost any other workplace," the Los Angeles Times reports.

The policy appears to have grown out of an effort to prevent the military from attracting people seeking benefits who knew they would come down with a genetic illness, according to Mark Nunes, former head of the Air Force Genetics Center's DNA diagnostic laboratory at Keesler Air Force Base in Mississippi.

In 1999, a military analysis estimated that about 250 servicemembers are discharged annually for genetic health disorders. Disability payments for those people would total about $1.7 million for the first year and increase thereafter "as more veterans join the rolls," according to the Times.

Military members who opt for genetic testing can be dismissed based on their results, even though there is no way to determine if or when symptoms will develop. Many military doctors discourage their patients from genetic testing to avoid possible dismissal.

Nunes said, "If someone called me up with regard to genetic testing, I had to say, 'That might not be something you want to pursue,'" adding, "That's very hard to say."

The Times notes that Congress in 1996 banned genetic discrimination in group health plans and that former President Bill Clinton in 2000 signed an executive order forbidding the practice against the government's two million civilian employees.

The House has passed legislation (HR 493) to extend the federal law; the bill is awaiting a Senate vote. The law would not extend to the military.

Kathy Hudson, director of the Genetics and Public Policy Center at Johns Hopkins University, said, "You could be in the military and be a six-pack-a-day smoker, and if you come down with emphysema, 'That's OK. We've got you covered.'" She added, "But if you happen to have a disease where there is an identified genetic contribution, you are screwed"

Alaska high court favors benefits for gay partners
ANCHORAGE (AP) — The Alaska Supreme Court ruled Friday it is unconstitutional to deny benefits to the same-sex partners of public employees, a victory for gay rights advocates in one of the first states to pass a constitutional ban on gay marriage.

Overturning a lower court ruling, the state high court said barring benefits for state and city employees' same-sex partners violates the Alaska Constitution's equal protection clause.

"It's a good day for Alaska families," said Carrie Evans, state legislative director for the Washington, D.C.-based Human Rights Campaign.

She said the unanimous decision sets the stage for Alaska to join 11 other states that already have laws, policies or union contracts providing employee benefits in all eligible same-sex unions.

Anchorage city attorney Fred Boness said city officials would not appeal the court's decision.

But Republican Gov. Frank Murkowski was "outraged" by the ruling and directed the attorney general's office to determine the best way to overturn it, said his spokeswoman, Becky Hultberg.

The high court said the disputed benefits plans will stand until a remedy is reached in future court hearings.

Nine gay or lesbian government workers and their partners in 2002 joined the Alaska American Civil Liberties Union in appealing the lower court ruling. The case stems from a 1999 lawsuit filed against the state and the Municipality of Anchorage after voters passed a constitutional amendment blocking state recognition of gay marriage.

In the 2001 Superior Court ruling overturned Friday, Judge Stephanie Joannides said the state and city did not have to extend benefits to same-sex couples, equating them with unmarried heterosexual couples who also are not eligible.

The high court said that comparison failed to acknowledge the fact that heterosexual couples can choose to get married, while homosexual couples cannot.

Michael Macleod-Ball, director of the Alaska ACLU, said the Alaska Supreme Court ruling could have an effect on other states.

December 27, 2006
Was Employer Wrong to Deny Benefits to Incarcerated Worker?

A Minnesota insurance worker was sent to jail for a crime unrelated to her job. Her employer promised to get her out on a work-release program but failed to do so and then fired her for skipping work. She appealed her denial of unemployment benefits, claiming that she was fired through no fault of her own.

What happened. On November 27, 2000, Cassandra Jenkins began working for American Express Financial Corporation as an insurance specialist. In January 2004 she was sentenced to 30 days in jail for assaulting a nurse who was treating her broken ankle. She was scheduled to begin her sentence on April 18, 2004. She was entitled to work-release privileges, under which she would be allowed to keep working as long as her employer verified her employment. Jenkins discussed her sentence with her supervisor, Joel Hansen, who assured her that he would verify her employment to the workhouse.

When Jenkins reported to the workhouse on April 18, she discovered that Hansen had not verified her employment. She spent the next several days trying to reach Hansen and get him to contact the workhouse so that she could go to work. She managed to speak to him only once, and on this occasion he was noncommittal and told her he "would get back to her." Jenkins's social worker also called Hansen, leaving him a voice mail message telling him that all he had to do was call the workhouse to secure Jenkins's work release, but Hansen never did.

On April 22, American Express sent Jenkins a letter informing her that if she did not report to work on Monday, April 26, it would assume that she had voluntarily resigned. Jenkins never managed to have her employment verified, so she did not go to work on April 26. American Express terminated her.

Jenkins filed an application for unemployment benefits with the state Department of Employment and Economic Development. The department decided that Jenkins had been fired for misconduct and therefore was not entitled to unemployment benefits. Jenkins appealed to an unemployment law judge who determined that she had been fired for failing to report to work during her incarceration.

Jenkins appealed to the state court of appeals, which affirmed this ruling. This appellate court agreed that Hansen's failure to verify Jenkins's employment may have played some role in her failure to report to work, but found the fact that Jenkins committed a crime worthy of incarceration was enough to find that she had lost her job through her own fault. Jenkins appealed to the Supreme Court of Minnesota.

What the court said. Employees can be disqualified from benefits for numerous reasons, including discharge for employment misconduct. The state unemployment compensation statute defines employment misconduct as "any intentional, negligent, or indifferent conduct, on the job or off the job (1) that evinces a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that demonstrates a substantial lack of concern for the employment." Inefficiency, accidental acts, or simple unsatisfactory conduct are not employment misconduct under the law.

The supreme court noted that incarceration per se does not disqualify an employee from receiving compensation. In this case, Jenkins's crime of assault had nothing to do with her job and so should not have been considered employment misconduct. In any case, American Express fired her for absenteeism, not assault.

As for the absenteeism, the court found that it was unreasonable of American Express to expect Jenkins to report to work by April 26. American Express had known about Jenkins's conviction and the work-release program and had told Jenkins that she would be able to continue working. Jenkins herself made every effort to get to work, so the absenteeism was not her fault. The supreme court therefore reversed the earlier decisions and found that Jenkins was eligible for unemployment compensation. Jenkins v. American Express, Supreme Court of Minnesota, No. A04-2308 (9/14/06).

Point to remember: The employee won here because it was her employer's fault that she could not attend. This was a unique case; in most situations, getting to work remains the employee's responsibility.

Tuesday, October 23, 2007

States Illegally Deny Benefits To Poor, Report Says
By Clare Nolan, Senior Writer
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A national organization of community groups says tests of four federally-funded social safety net programs exposed many gaps in the delivery of aid to the poor and showed a concerted effort by states to cut the rolls of their anti-poverty programs.

The organization, the National Campaign for Jobs and Income, says the states have intentionally and, in some cases, unlawfully erected barriers to keep poor families from obtaining the food assistance, medical insurance and child care to which they are entitled.

A "major cause of low and declining enrollment is the negligent and sometimes, unlawful behavior of state agencies administering support programs," the report says. "States have been given too much power without sufficient oversight to manage these programs and are failing in their obligation... It is time for the federal government to intervene."

"I think we would dispute those claims without a doubt," said Gretchen Odegard of the National Governors' Association (NGA).

Both NGA and the American Public Human Services Association (APHSA), which represents state human service administrators, acknowledge that states have unintentionally cut benefits to some families as they have overhauled their welfare systems. But they said governors and the state agencies are working hard to correct mistakes and to expand their child care and health insurance services for both poor families and those living just above the poverty line.

"There has been a structural change in this country in social policy. It's going to take time," said Elaine Ryan of APHSA. "A whole new process has to be put in place."

The National Campaign for Jobs and Income, a coalition of advocacy groups in 35 states, is sharply critical of the devolution of authority over anti-poverty programs to the states, particularly the new federal welfare law.

In 1996, Congress overhauled the nation's welfare system in a bid to save money and to foster innovation, two goals that have sometimes resulted in mixed messages to states and to recipients.

The law freed the states to run their welfare programs as they saw fit, with the requirement that they move adults into jobs and cut off all assistance to most families after five years. It also made large cuts in the food stamp program.

But implicit in the law was the idea that states would create a web of new support programs to help parents find and keep jobs. The federal government vastly increased funds for child care and severed ties between the Medicaid program and welfare, so poor children could continue to receive health coverage even though their parents were working.

A year later, Congress created the Children's Health Insurance Program (CHIP), a multi-billion dollar effort to provide medical coverage for children whose parents made just enough to disqualify them for Medicaid.

Since the welfare law's enactment, falling food stamp and Medicaid rolls have raised concerns that states have erred too far on the side of reducing all their caseloads. That alarm was magnified when federal judges ruled that New York and Michigan had denied food stamps to families in violation of federal law.

Since 1996, the food stamp program has shrunk by nearly a third. The number of poor families receiving Medicaid has also dropped, although new reports indicate the states have begun to reverse that decline.

Although two million children are now enrolled in CHIP and a tripling of state and federal child care assistance has brought services to 1.5 million children, critics charge the states have dragged their feet in implementing those programs, as well.

"The analogy I have made is to Y2K," said Lissa Bell, co-author of the National Campaign's report. "The government was worried about Y2K and it didn't have a Y2K problem. It could do that with these programs too."

For this, the first of what it promises will be a series of tests of these support programs, the National Campaign recruited 150 low-income families to apply for aid in six states: Oregon, South Carolina, Washington, Idaho, Arkansas and Montana.

Grassroots organizations within each state decided which programs to test based on the complaints they had received. Families in Oregon and South Carolina applied for food stamps. In Arkansas and Montana, parents tested CHIP and Medicaid. In Washington and Idaho, families sought child care assistance.

Among the stories cited in the report are:

# A pregnant woman in Montana was told she must wait six months before she could receive Medicaid. Federal law does not permit a waiting period for Medicaid.

# A homeless father living in a shelter with his son in Oregon was not screened for expedited food stamps, in violation of federal law. He should have received aid within seven days, but instead waited more than a month.

# A single mother in Washington was denied child care assistance for her two-year-old twins even though without it she could not attend the job-search classes required by the state's welfare program.

# A Montana couple with four children were denied Medicaid because of their assets but never told about CHIP.

The National Campaign plans to release individual reports for each state, but so far has only made available its findings for Oregon. In Oregon, which the U.S. Department of Agriculture recently ranked highest in the nation in incidence of hunger, 25 families applied for food stamps and the advocacy group, Oregon Action, followed them through the process.

Almost half the families said the state's application, at 16 pages, was too long and confusing. More than half the families were not screened for expedited service. Many applicants who tried to schedule interviews were told to return the next day.

"I think the service we provide is not reflective of what these individuals have experienced," said Jim Neely, who oversees the food stamp program for the Oregon Department of Human Resources.

"We have no interest in reducing the welfare rolls," Neely said.

Neely said his department was taking some of the report's charges seriously. He said the state is currently reviewing all of its food stamp guidelines and its application form and is considering a change in policy that would make it easier for parents to make appointments at their local offices.

Both the U.S. Department of Agriculture, which administers the food stamp program, and the Health Care Financing Administration, which oversees Medicaid and CHIP, have urged the states to increase their outreach efforts to eligible families. HCFA has gone so far as to order states to go back through their caseloads and contact families who have left welfare that may still be eligible for Medicaid. Both organizations are also now conducting state-by-state reviews of how the programs are run.

Federal regulators took a step yesterday toward forcing two top former Freddie Mac executives to forfeit millions of dollars in benefits, asserting that they should not receive severance and bonuses because they played a role in improper manipulation of the company's earnings.

The Office of Federal Housing Enterprise Oversight, which is the primary regulator of Freddie Mac, announced yesterday that it had issued a notice of charges against Freddie Mac's former chairman, Leland C. Brendsel, and its former chief financial officer, Vaughn A. Clarke.

The notice of charges, which will be followed by an administrative hearing, is a necessary step before the agency can issue an order compelling Freddie Mac to revise its treatment of the two executives.

If the charges result in an enforcement order then the two men, who left the company in June, would be treated as if they were fired. According to the agency, Mr. Brendsel stands to lose nearly $34 million: $24.3 million in benefits, $3.8 million in bonuses received in 2000 and 2001 that he would have to repay and a $5.8 million penalty. Mr. Clarke would lose a bit less than $4 million: $750,000 in benefits, $537,000 in bonuses and a $2.6 million penalty.

Although the notice focused on the two men, it also sharply criticized the board at Freddie Mac as ''reckless and imprudent'' for failing to decide to fire Mr. Brendsel for cause and Mr. Clarke for loss of confidence. Freddie Mac is the nation's second-largest buyer of home mortgages after its corporate sibling, Fannie Mae.

The agency proposed in September that Freddie Mac change the treatment of the departure of the two. Mr. Brendsel retired, and Mr. Clarke resigned at the same time.

''If we get such a valid and effective order, we will comply with it,'' said David Palombi, a spokesman for Freddie Mac. ''We just haven't been ordered to do it and we're bound by the terms of the contracts'' that governed the employment of the two men, he said.

A lawyer for Mr. Brendsel did not return calls seeking comment yesterday. Steven Salky, a lawyer for Mr. Clarke, said in a statement that the agency's action was unjustified. ''This is simply a case about a difference of opinion between Freddie Mac's prior and current auditors,'' Mr. Salky said. ''Mr. Clarke served Freddie Mac in the utmost good faith.''

The two executives left the company several months into an investigation of its accounting practices, which were questioned by Freddie Mac's new auditor, PricewaterhouseCoopers. Freddie Mac restated its earnings last month, revising them upward by nearly $5 billion for a period of more than three years, and the company has agreed to pay the government a $125 million penalty.

An outside law firm retained by the board prepared a pair of reports on its investigation and the company's regulator last week released its own, which blamed Mr. Brendsel and Mr. Clarke for creating a ''tone at the top'' that encouraged the improper accounting. Former executives apparently manipulated Freddie Mac's earnings in an effort to meet investors' expectations, the reports found. Freddie Mac executives said last month that they did not expect to have financial statements for 2003 until the end of June.

In the notice of charges, Freddie Mac's regulator stated that both Mr. Brendsel and Mr. Clarke ''engaged in conduct or permitted conduct under their supervisory authority that resulted in unsafe and unsound practices that failed to meet accepted standards of prudent operations in the conduct of Freddie Mac's affairs.''

The two men set ''rigid financial objectives relating to the management of Freddie Mac's earnings,'' the report continued, and focused on maintaining steady growth in net income. To keep the manipulation from becoming apparent to the company's board, investors and regulators, the agency said, Mr. Brendsel and Mr. Clarke would omit and delete information from reports.

Why can't managed care companies be held liable for the consequences of their decisions when they refuse to authorize payment for care? Physicians, psychologists, and other health professionals, after all, can be sued for malpractice when they make bad decisions, and if they are found to have been negligent, they are responsible for compensating injured patients or their survivors. These days, with decisions about admission, discharge, and even outpatient care more likely to be made by managed care reviewers than clinicians, the former often hold the key to whether patients receive care. If they decide wrongly, and patients are harmed, should they not be held responsible for their negligent decisions?

Richard Clarke's family has been asking this question since the night in November 1994 when he was found dead in a parked car, with a garden hose leading from the tailpipe into the passenger compartment. Clarke, who had a drinking problem, was covered by a Travelers' health insurance policy purchased by his wife's employer, American Telephone & Telegraph. Eight months before his death, he was admitted to a community hospital for alcohol detoxification. The facility's recommendation for a 30-day inpatient program was referred to Greenspring, the managed care company that oversaw the mental health and substance abuse benefits in the Travelers' health plan. Although Clarke's policy specifically included one 30-day inpatient rehabilitation program per year, Greenspring rejected the request, authorizing instead a five-day hospitalization for detoxification.

Before the month was out, Clarke began drinking again. By September 1994, Clarke, the father of four children, was willing to seek voluntary hospitalization at a specialized treatment facility. Despite clinical recommendations for an extended stay, Greenspring declined to authorize more than eight days of inpatient care. Twenty-four hours later, after downing a considerable amount of alcohol, cocaine, and prescription drugs, Clarke locked himself in his garage, with the car running. His wife found him in time, and he was airlifted to an out-of-state hospital to be treated for carbon monoxide poisoning.

When medically ready for discharge, Clarke was involuntarily committed for 30 days of alcohol detoxification and rehabilitation. When Greenspring once more refused to authorize payment for care, he was sent to a state facility that is the traditional refuge of skid-row alcoholics. To no one's surprise, Clarke started drinking again soon after release. Within three weeks, he was dead.

Clarke's wife, Diane, filed suit against Travelers and Greenspring, alleging that they had been negligent in failing to approve medically necessary treatment for her husband's alcoholism. Had a treating physician declined to authorize extended hospitalization under similar circumstances, the case would have gone to trial, and Diane Andrews-Clarke's chances for a favorable judgment would have been good. But because an insurer and a managed care company were the target of her complaint, no jury will ever hear the evidence regarding their behavior. The case was thrown out of court by a federal judge (1).

Greenspring and Travelers, the judge ruled, were protected from liability by a 1974 federal law, the Employee Retirement Income Security Act (ERISA) (2). The statute was originally designed to protect the pension plans of workers by establishing national standards for funding and payment. Such a process required preempting all state laws on the subject. Almost as an afterthought, Congress extended ERISA's preemption of state laws to all laws affecting employee-benefit plans in general, including health plans (3). Preemption affected not just statutes but also common law remedies such as actions in tort, of which malpractice is a subcategory.

Thus employees unhappy over how their benefits were being administered could no longer bring suit in state court; only the federal courts had jurisdiction over such claims. And the only remedies available to them were those specified by ERISA.

These remedies are embodied in Section 502(a) of ERISA, which allows suits to be brought for recovery of benefits that were improperly denied, or to enforce other rights under the statute. But it does not permit awards of compensatory or punitive damages, as would usually be available under state law. In practical terms, this means that if Richard Clarke, after having been denied coverage for hospitalization, had paid for care from his own resources, he could have sued after the fact to recover his expenses, assuming the courts agreed that he had been entitled to coverage. Such a suit, however, would be his only remedy. In a case where care is denied and a bad outcome ensues, ERISA does not provide recovery for pain and suffering, additional medical costs, lost wages, or—in this case—wrongful death (4). In other words, Richard Clarke's family is out of luck.

By the time Clarke's suit was filed, the result could not have been unexpected. A series of federal circuit courts have rejected similar claims (4). There is an irony here that should not go unnoticed. People who obtain their health plans other than from their employers, that is, by direct purchase from an insurer, or who are otherwise "unprotected" by ERISA, such as federal or state government employees, retain their state law rights to sue for negligence by an insurer or managed care company. However, these people represent only a small minority of persons with health insurance in the United States today.

Nor are negligence claims the only type of actions impeded by ERISA. The scope of most state efforts to regulate health care benefits—including the much ballyhooed state parity laws for mental illness—is substantially limited by ERISA's restrictions. For ERISA-related purposes, there are two types of health insurance plans: those purchased by employers from insurance companies (as in Richard Clarke's case) and those "self-funded" by the employer, an increasingly attractive option.

Self-funded plans, estimated to have more than 44 million members (3), are immune from almost any form of state regulation. Mandated benefits, whether for mental health or postpartum care; antigag-rule laws; patients' rights statutes, including review and appeal procedures—all of these and more are precluded from application to self-insured plans by ERISA. Indeed, even the highly publicized new state laws allowing patients to sue health maintenance organizations (HMOs) for malpractice when coverage is denied are now being challenged under ERISA (5). Plans purchased by an employer from an insurer differ only in that mandated benefits can be required, because such requirements are considered regulation of insurance, an area not preempted by ERISA.

Despite ERISA's impact on health care, most health professionals and patients are unaware of the statute. Federal laws with strange-sounding acronyms rarely become the focus of public attention. But it is difficult to argue with the conclusion that ERISA both deprives injured patients of reasonable recourse to those responsible for their situation and provides perverse incentives to managed care companies to deny care, secure in the knowledge that they cannot be sued for their actions, no matter how outrageous. Indeed, even the judge who threw out Diane Andrews-Clarke's claim against Greenspring and Travelers noted that "in the health insurance context, ERISA has evolved into a shield of immunity which thwarts the legitimate claims of the very people that it was designed to protect" (1).

What can be done? Congress, which created ERISA, could amend the law to permit negligence actions against insurers and managed care organizations. As sensible as that might seem, a powerful coalition of groups is blocking ERISA reform on Capitol Hill. Large employers, whose plans are now covered by ERISA, fear that costs will increase if they or their agents can be sued for negligence. The insurance and HMO lobbies have similar concerns. Although proposals of this sort are made periodically, ERISA will have to be on the lips of voters in every congressional district in the country before Congress would be likely to act.

Wendy Mariner, a health law expert who tracks ERISA issues, has suggested that a more limited reform might be more palatable to business interests (4). ERISA's own remedy in Section 502(a) could be expanded to allow recovery for compensatory damages when wrongful denials of coverage occur. This strategy would keep the actions in federal court and maintain uniformity of approach across the country, without denying injured patients recourse from the negligent parties. It is doubtful, however, that most industry representatives would be willing to embrace even this reform.

With Congress unlikely to act until a fire is lit under it, the courts are the forum of last resort. Some courts have been chipping away at ERISA's shield by allowing non-staff-model HMOs to be sued under theories of vicarious liability for the negligence of the physicians or other professionals who provide care (6-8). In essence, these courts have distinguished between decisions about whether benefits should be authorized—challenges to which are preempted by ERISA—and actions affecting the quality of benefits once it is agreed that they will be provided. Allowing suits addressing the latter issue has the paradoxical effect of continuing to immunize managed care organizations when they deny care altogether, while subjecting them to the risk of liability as soon as they agree to provide some coverage. The incentives here are hardly rational.

Mariner, however, has suggested that this approach could be expanded so that decisions about whether a particular form of treatment—most often hospitalization—is indicated would be considered decisions about the quality of care, rather than benefit determinations. "A decision that a service is (or is not) medically necessary...is also a decision that the service is medically sufficient for purposes of good patient care" (4). This approach would allow the courts themselves to take the initiative in extending liability to managed care entities, even under the current version of ERISA. Whether the courts will be inclined to deviate from existing precedents and to stretch the statute quite so far remains to be seen.

For now, it seems clear the most important step toward change is to educate health professionals and the public alike about the importance of ERISA. That a statute passed almost a quarter-century ago for entirely unrelated reasons should be allowed to deprive states of the power to regulate health care and deprive patients of fair compensation for the harms they suffer is a parody of the legislative process. Something has to change.

October 6th, 2007 Military News

In a classic bureaucratic move, the Army took steps to deny benefits to Army National Guard members.

WCSH: National Guard Troops Denied Benefits After Longest Deployment Of Iraq War

MINNEAPOLIS, MN (NBC) — When they came home from Iraq, 2,600 members of the Minnesota National Guard had been deployed longer than any other ground combat unit. The tour lasted 22 months and had been extended as part of President Bush’s surge.
=================
Anderson’s orders, and the orders of 1,161 other Minnesota guard members, were written for 729 days.

Had they been written for 730 days, just one day more, the soldiers would receive those benefits to pay for school.

Even if you don’t agree with the war in Iraq, take the time to write your Members of Congress about this bureaucratic trick to avoid paying for a benefit. That’s just no way to treat someone who volunteered to put their life on the line for you.

The ultimate irony in the article was the Google Adsense ad being displayed next to the article on WCSH’s web site:

WCSH screen shot

I’ll probably have an ad like it myself after I publish this article.

Anyway, take some time to back these guys. Don’t let Pentagon paper pushers take away what they should have earned.

Californians Will Try Again To Deny Benefits to Illegals
Human Events, Jan 5, 2004 by D'Agostino, Joseph A

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'Save Our State' Initiative

California's political and judicial establishment sabotaged Proposition 187, the 1994 voter-passed ballot initiative that would have withheld many public benefits from illegal aliens. Now, ten years and millions of estimated illegal border crossings later, the same Tustin, Calif., accountant who was a major force behind Prop 187 is trying to pass a similar initiative.

Ron Prince believes that his second attempt, called the Save Our State Initiative (SOS), will fare better. The 1996 federal welfare reform law strengthens the hand of state-level immigration reformers, he argued in an interview SOS also leaves out the most legally contentious issues that were the pretext for the abrogation of Prop 187.

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Prop 187 passed with 59% of California's vote but after years of legal wrangling, it was mostly nullified when then-Democratic Gov. Gray Davis dropped the state's appeal of a federal judge's ruling that most of the proposition was unconstitutional.

"The 187 case is dead," said Prince when asked if Gov. Arnold Schwarzenegger (R.) could appeal the case. "There is nothing to appeal."

Foremost among those legal issues is access to public schools: Prop 187 would have kept illegal immigrant children out of public schools whereas SOS (which has no number yet) would not. "In the 1982 Plyler v. Doe case," said Prince, "the U.S. Supreme Court said that everyone in this country was entitled to a free public education regardless of immigration status." By leaving aside the issue of public schooling for illegal aliens, SOS avoids a major potential legal challenge.

SOS denies what are legally termed "public benefits" to foreign nationals who have broken U.S. immigration law by entering the United States illegally. The proposal uses the same definition of "public benefits" as the 1996 federal welfare reform law. "All legal challenges to the 1996 law have failed so far," said Prince. "By using the same definition, we avoid the problem of being accused of setting an immigration policy different from that of the federal government. The 1996 law says that giving welfare is an inducement to illegal immigration. But then it says states can give them benefits if they want to."

If SOS gets on the ballot, California's voters will get another chance to decide if they want to. Says SOS, "Neither the state nor any of its political subdivisions shall contradict the objectives of federal immigration policy, nor shall they provide any state or local public benefit, as defined in Title 8 of the United States Code, to any alien classified as ineligible for federal public benefits by that Code." Title 8 defines public benefits to include most welfare (including unemployment, retirement, disability, non-emergency health, and food assistance), public housing, grants, loans, and professional and commercial licenses.

The initiative would require state employees to verify the status of those who apply for public benefits, and even makes it a misdemeanor for state employees who administer public benefits to fail to report to the feds illegal aliens who try to get those benefits. State and local police would not be required to report illegals, however.

Mike Spence, president of the conservative California Republican Assembly, said that the decision to grant driver's licenses to illegal aliens by Davis and the Democratic state legislature-and the subsequent repeal of that measure in the face of massive public opposition-has moved illegal immigration back toward the top of the political agenda in California. "It's time for the GOP to deal with the issue and stop ignoring it," said Spence, an SOS supporter. "It will pass if it gets on the ballot."

Major Prop 187 backer Rep. Dana Rohrabacher (R.-Calif.) is not so sure. Though he strongly supports barring illegal aliens from public benefits and is not opposing SOS, he questioned the wisdom of making a failure by state employees to report illegal aliens a misdemeanor. "I think the focus should be on changing public policy, not arresting public employees," he said.

SOS also forbids the acceptance, by state and local officials, of the increasingly popular matricula consular ID cards that some consulates, including those of Mexico, issue to their nationals illegally residing here in order to facilitate their law-breaking-a provision not in Prop 187. It would also preserve driver's licenses for legal residents only.

Unlike Prop 187, SOS is a constitutional amendment and thus, if approved, could not be challenged on the grounds that it conflicts with the state constitution. But this also means Prince must get more signatures (598,000 total) to get SOS on the November ballot than it took to get Prop 187 on the ballot nine years ago. He has until April 15 to do it.

Some California immigration hawks fear that SOS will not qualify for the ballot this year because major grassroots networks have not yet mobilized and fundraising is slow. "I am providing most of the funding for this myself, so far, but we do take donations," said Prince. "I think it will take less money than last time because we have the Internet." Petitions to have SOS placed on the ballot can be found at www.save187.com.

Dear Participant,

You can now ask an EP expert any question you might have on treatment or management of  Afib. Journal of Atrial Fibrillation has launched a new feature "Meet the Expert", and this feature is free to all participants. This month we feature Dr. Lakkireddy from Kansas University.

http://www.jafib.com/index.php?cont=patient_register

Click on "Meet the Expert" link on the left side. Once you ask a question it will be sent to a moderator and it will take 2-3 hours before your question is listed.

regards
Goutham Edula

Managing Editor
Journal of Atrial FIbrillation