Articles Posted in Health insurance

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By Edgar M. Rivera

On May 24, 2017, the Eighth Circuit Court of Appeals affirmed the district court’s dismissal of plaintiff Brittany Tovar’s sex discrimination claim under Title VII of the Civil Rights Act of 1964 (Title VII). The court held that Defendant Essentia Health’s denial of insurance coverage for Ms. Tovar’s son’s transition-related medical procedures did not state a claim for sex discrimination under Title VII, since Ms. Tovar did not suffer discrimination based on her own sex and therefore lacked statutory standing.

Ms. Tovar, a nurse practitioner, worked for Essentia Health from 2010 to 2016. During her employment at Essentia Health, she was enrolled in an employer-provided health insurance plan that also covered her teenage child, who is a transgender boy, meaning that he was designated female at birth but identifies as male. In 2014, doctors diagnosed Ms. Tovar’s son with gender dysphoria and recommended various treatments, including medications and gender reassignment surgery, for which Ms. Tovar sought coverage under her employer’s insurance plan.

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Lev Craig

Last Friday, the parties submitted a settlement agreement for approval in Cote v. Walmart, a class action suit filed in federal court alleging that Walmart discriminated against gay Walmart employees by denying spousal health insurance coverage to same-sex married couples. The settlement would provide $7.5 million for current and former Walmart employees who could not obtain employer health insurance benefits for their same-sex spouse.

The suit was the first class action filed on behalf of gay employees after the Supreme Court’s June 2015 ruling extending marriage equality in Obergefell v. Hodges, according to the Boston-based LGBT legal advocacy group GLAD. Jackie Cote filed suit in the District of Massachusetts in July 2015, bringing claims against Walmart under Title VII of the Civil Rights Act of 1964 (Title VII) and the Massachusetts Fair Employment Practices Law on behalf of Walmart employees who were married to a same-sex spouse and did not receive spousal health insurance benefits from Walmart between 2011 and 2013.

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Edgar M. Rivera

As reported by Reuters, Democratic New York State Assemblyman Joseph Morelle has proposed introducing legislation that would allow workers at gig-economy companies to opt into a company-funded portable benefits program. Gig-economy companies use independent contractors to provide rides (like Uber and Lyft), deliveries (like UberEats), housecleaning (like Handy), and other services through websites and apps. They claim not to employ their workers but instead hire independent contractors to provide their customers services. However, independent contractors generally do not receive basic employment benefits, including health insurance, and as more workers join the gig economy, more are forced to secure health insurance elsewhere or go without. Assemblyman Morelle said that he plans to introduce the legislation early next year; it would be the first bill of its kind in the United States.

Perhaps anticipating the sting of impending legislation, Handy, a web-based home cleaning services company, has circulated a draft bill that would establish guidelines for a portable benefits plan for New York workers at gig-economy companies.  Its draft bill establishes a program whereby participating gig-economy companies would pay the equivalent of 2.5% of workers’ income into individual health savings accounts. Handy’s cleaners in New York earn approximately $20 an hour and work, on average, 10 hours a week. A 2.5% health stipend deposited into an individual account would amount to about $800 a year for a Handy worker earning $33,000—less than one third of the cost of an individual silver plan on the New York State health insurance market, according to the Kaiser Family Foundation.  n return, workers who enter into the program accept their classification as nonemployees, which proscribes them from suing for benefits like overtime pay, joining unions to collectively bargain for better benefits, and receiving mandatory employer payroll contributions, like Social Security and Medicare.

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Yarelyn Mena and Edgar M. Rivera, Esq.

On April 20, 2015, the Equal Employment Opportunity Commission (EEOC) issued a notice of proposed rulemaking (NPRM) addressing employer wellness programs that are part of a group health plan and its relation to Title I of the Americans with Disabilities Act (ADA).

A wellness programs is an employee health program that “is reasonably designed to promote health or prevent disease.” Many employers offer wellness programs in the form of programs and activities, typically through employer-provided health plans, to maintain and improve employee health as well as to reduce health care costs. While some wellness programs only ask employees to engage in healthier behavior, such as by encouraging exercise or quitting smoking, legal issues arise when a wellness programs seeks employees’ medical information, require employees complete a health risk assessment, or require employees undergo screening for health risk factors.

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Jennifer Melendez

On November 15, 2015, the National Union of Healthcare Workers (NUHW) and the health insurance company Kaiser Permanete (Kaiser) arrived at a tentative agreement ending a 5 year dispute regarding employee compensation and patient treatment.

In November of 2011, NUHW’S health care clinicians made a complaint on behalf of their patients, which prompted a 15-month investigation by the state. The investigation resulted in the California Department of Managed Health Care (DMHC) finding that Kaiser’s patients endured illegally long waiting periods for their treatments and were refused access to care, in violation of California’s Mental Health Parity Act and that Kaiser clinicians were instructed to falsify appointment times to hide those long waits. The DMHC fined Kaiser $4 million for these infractions. The DMHC states:

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The case Ewald v. Royal Norwegian Embassy et al is emblematic of recent equal pay cases in several disturbing ways. After it was decided to create a new “Honorary Consulate” in Minneapolis, Minnesota, the Norwegian Embassy (“the Embassy”) set a budget of about $150,000 to be divided between two new expert positions to be staffed by local personnel. The purpose of both positions was to “build upon and strengthen the relationship between the Midwest and Norway through focused efforts to increase collaboration in two key strategic areas: (1) business and innovation; and (2) education and research.”

The positions had different titles: one was an “Innovation and Business Development Officer,” and the other a “Higher Education and Research Officer.” However, the written plans for the two positions, their job descriptions, and almost all testimony about the rationale for creating these positions made clear that they were supposed to be parallel, “inextricably linked,” equal-level positions with “almost identical responsibilities.”

Two candidates quickly rose to the top of the two hiring pools. Anders Davidson and Ellen Ewald were informally offered the two positions, each at a salary of $60,000. There was no negotiation with either candidate, although both had earned far more in the private sector prior to accepting their new positions. In both cases, they assumed that the salary they had been offered was fixed by the Embassy’s budet and not negotiable.

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On January 28, 2013, the United States Court of Appeals for the Seventh Circuit issued its decision in the Ballard v. Chicago Park District case. The Plaintiff appealed the decision of United States District Court for the Northern District of Illinois, after being denied her claims under the Family and Medical Leave Act (“FMLA“). The question before the Court of Appeal was whether an employee’s trip with her terminally ill mother qualified as leave under the (“FMLA“).

In this case, an employee who worked at the Chicago Park District requested leave so that she could have provided physical and psychological care to a terminally ill mother while she was traveling away from home to Las Vegas. Plaintiff lived with her mother who was diagnosed with end-stage congestive heart failure and began receiving hospice support. Plaintiff was her primary caregiver: she cooked for her, administered insulin and other medication, drained fluids from her heart, bathed and dressed her, and prepared her for bed. As an end-of-life goals, Plaintiff’s mother wanted to take a family trip to Las Vegas and her social worker was able to secure funding from the Fairygodmother Foundation, a nonprofit organization. Therefore, Plaintiff requested unpaid leave under the FMLA from the Chicago Park District so that she could accompany her mother to Las Vegas. Defendant denied her request but Plaintiff went on the trip anyway, claiming she was never informed that it was denied. Several months later, Plaintiff was terminated ” for unauthorized absences accumulated during her trip.”

The FMLA gives eligible employees a right to twelve workweeks of leave in order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition. An eligible employee is entitled to leave in order to care for a family member with a serious health condition. However, the FMLA does not define the term “care” and usually Courts refer to the Department of Labor’s regulations get a definition: “medical certification provision that an employee is ‘needed to care for’ a family member encompasses both physical and psychological care. It includes situations where, for example, because of a serious health condition, the family member is unable to care for his or her own basic medical, hygienic, or nutritional needs or safety, or is unable to transport himself or herself to the doctor, etc.” Besides, the Court of Appeals also stated that the FMLA does not restrict care to a particular place or geographic location and added that “the only limitation it places on care is that the family member must have a serious health condition.”

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On May 8, 2013, the U.S. Department of Labor (DOL) issued Technical Release 2013-02, which provided guidance and an updated model election notice for group health plans for purposes of the continuation coverage provisions under Title X of the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) as required to comply with the Affordable Care Act (“ACA”), which kicks in January 1, 2014.

The model COBRA election notice was revised to include additional information regarding health coverage alternatives offered through the Marketplace. Open enrolment for health coverage through Marketplace began on October 1, 2013.

In general, under COBRA, an individual who was covered by a group health plan on the day before a qualifying event occurred may be able to elect COBRA continuation coverage upon a qualifying event (such as termination of employment or reduction in hours that causes loss of coverage under the plan).

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On September 13, 2013, the Department of Labor (DOL) issued “Technical Release No. 2013-03” entitled “Application of Market Reform and other Provisions of the Affordable Care Act (ACA) to health reimbursement arrangements (HRAs), health flexible spending arrangements (Health FSAs), and certain other Employer Healthcare Arrangements” to help clarify the rules and how they apply. This Technical Release applies for plan years beginning on and after January 1, 2014. The Technical Release encompasses questions and answers as well as examples of how it would apply to concrete cases.

The Technical Release provides guidance on the application of certain provisions of the Affordable Care Act to the following types of arrangements: (1) HRAs, including HRAs integrated with a group health plan; (2) group health plans under which an employer reimburses an employee for some or all of the premium expenses incurred for an individual health insurance policy, such as a reimbursement arrangement described in Revenue Ruling 61-146, 1961-2 CB 25, or arrangements under which the employer uses its funds to directly pay the premium for an individual health insurance policy covering the employee (collectively, an employer payment plan); and (3) certain health FSAs. The Technical Release also offers guidance under on section 125(f)(3) of the Internal Revenue Code (Code) and on employee assistance programs or EAPs.

The Affordable Care Act (ACA) provides amendments the Public Health Services Act (PHSA) to impose certain “market reform” requirements on group health plans. More specifically, two of these requirements directly affect an employer’s ability to pay for individual health insurance policies.

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