OSHA $1Million Award Against AirTran Airways Highlights Retaliation Risks

January 18, 2012

A million dollar plus backpay award announced by the Occupational Health & Safety Administration (OSHA) reminds U.S. employer of the growing importance of taking steps to manage whistleblower and other retaliation claims when dealing with employees who have reported possible safety, discrimination or other activities protected under Federal or state whistleblower or other anti-retaliation laws.

On January 17, 2012, OSHA issued an order requiring  AirTran Airways AirTran Airways, a subsidiary of Dallas, Texas-based Southwest Airlines Co., to reinstate and pay more than $1 million in backpay plis interest and compensatory damages to a former pilot who charged AriTran fired him in retaliation for his reporting numerous mechanical concerns.

According to OSHA, the reinstatement and backpay award follows an investigation by OSHA’s Whistleblower Protection Program in which OSHA found reasonable cause to believe that the termination of the pilot, whose name is withheld as part of OSHA’s policy, was an act of retaliation in violation of the whistleblower provision of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, known as AIR21.

According to OSHA, the pilot’s complaint alleged that the airline removed him from flight status on Aug. 23, 2007, pending an investigative hearing regarding a sudden spike in the pilot’s mechanical malfunction reports, or PIREPS. The airline held an internal investigative hearing on Sept. 6, 2007, that lasted 17 minutes. Seven days later, the airline terminated the pilot’s employment, claiming that he did not satisfactorily answer a question regarding the spike in reports. OSHA found that the pilot did not refuse to answer any questions during the hearing, answers to questions were appropriate, and the action taken by the airline was retaliatory.

Either party to the case can file an appeal with the Labor Department’s Office of Administrative Law Judges, but such an appeal does not stay the preliminary reinstatement order.

AirTran Airways is a subsidiary of AirTran Holdings Inc. with headquarters in Orlando. On May 2, 2011, Southwest Airlines completed the acquisition of AirTran Holdings Inc. and now operates AirTran Airways as a wholly-owned subsidiary.

OSHA enforces the whistleblower provision of AIR21, as well as 20 other statutes protecting employees who report violations of various securities, trucking, workplace health and safety, nuclear, pipeline, environmental, rail, maritime, health care, consumer product and food safety laws.  Employees who believe that they have been retaliated against for engaging in protected conduct may file a complaint with the secretary of labor for an investigation by OSHA’s Whistleblower Protection Program.

These whistleblower and anti-retaliation provisions are just a small fraction of the growing list of federal and state laws that provide whistleblower or other anti-retaliation protections to employees and others for reporting known or suspected violations or engaging in other activities protected by the applicable law.  Other examples include federal employment discrimination, securities, tax, customs, immigration, labor, family or military leave, employee benefits, privacy, antitrust, and a wide range of other laws.  Because the prior reporting of information or other exercise or attempted exercise of protected rights often can create presumptions which employers may be required to rebut to avoid whistleblower or other liability under many of these laws, employees increasingly make claims or point to prior reports or activities as a means of challenging or disputing termination or other undesired employer actions. 

To better position themselves to prevent or defend against these types of claims, employers need to be prepared both to demonstrate the appropriateness of their employment and discipline actions, as well as to rebut claims of retaliation.  As part of these efforts, employers among other things should:

Carefully document and administer employee hiring, promotion, discipline and other practices to document their administration in accordance with applicable law based on valid performance based business justifications;

Clearly communicate and educate management and other employees about the employer’s policies against retaliation and procedures for reporting suspected problems;

Review employee terminations and other actions for patterns or other evidence of correlation to prior protected activities by employees that might evidence potential discrimination or other retaliation;

Establish and communicate clear procedures for reporting potential legal or policy violations that might for the basis of retaliation or whistleblower claims;

Conduct prompt, well-documented investigations of all reports of potential compliance or safety concerns, as well as retaliation claims;

Give clear, well-documented instructions to managers and others involved in investigations or other compliance efforts against retaliation or other misconduct;

Establish and administer monitoring and oversight processes and procedures for possible retaliation or other misconduct against protected parties; and

Provide exit interview and other opportunities for employees to share possible retaliation or other concerns with responsible management trained to properly investigate and redress these concerns. 

For Help or More Information

If you need help with these or other human resources, internal controls or risk management matters, please contact the author of this article, Cynthia Marcotte Stamer.  Board Certified in Labor & employment Law by the Texas Board of Legal Specialization,management attorney, author and consultant  Ms. Stamer is nationally and internationally recognized for more than 24 years of work helping private and governmental organizations and their management; employee benefit plans and their sponsors, administrators, fiduciaries; employee leasing, recruiting, staffing and other professional employment organizations; schools and other governmental agencies and others design, administer and defend innovative compliance, risk management, workforce, compensation, employee benefit, privacy, procurement and other management policies and practices. Her experience includes extensive work helping employers carry out, audit, manage and defend worker classification,union-management relations, wage and hour, discrimination and other labor and employment laws, procurement, conflict of interest, discrimination management, privacy and data security, internal investigation and discipline and other workforce and internal controls policies, procedures and actions. 
Widely published on workforce risk management and compliance concerns, the immediate past-Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee and current Co-Chair of its Welfare Plan Committee, Vice Chair of the ABA TIPS Section Employee Benefits Committee,  a Council Representative of the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer works, publishes and speaks extensively on management, compliance, re-engineering, investigations, human resources and workforce, employee benefits, compensation, internal controls and risk management, federal sentencing guideline and other enforcement resolution actions and related matters.  She also is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly.

Other Resources

If you found this update of interest, you also may be interested in reviewing some of the other updates and publications authored by Ms. Stamer available including:

About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, compensation, data security and privacy, health care, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources available at www.solutionslawpress.com. 

THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 REGULATIONS.  ANY STATEMENTS CONTAINED HEREIN ARE NOT INTENDED OR WRITTEN BY THE WRITER TO BE USED, AND NOTHING CONTAINED HEREIN CAN BE USED BY YOU OR ANY OTHER PERSON, FOR THE PURPOSE OF (1) AVOIDING PENALTIES THAT MAY BE IMPOSED UNDER FEDERAL TAX LAW, OR (2) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED TRANSACTION OR MATTER ADDRESSED HEREIN.

©2011 Cynthia Marcotte Stamer, P.C.  Non-exclusive license to republish granted to Solutions Law Press. All other rights reserved.

 

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Posted by Cynthia Marcotte Stamer

HHS Chides Trustmark Life Insurance Company For “Excessive” Health Premium Increases After Affordable Care Act Rate Audit

January 12, 2012
 Trustmark Life Insurance Company is the latest health insurance issuer coming under fire from the Department of Health & Human Services (HHS) for making what HHS views as “unreasonable” health insurance premium increases under its new “rate review” powers created by the Patient Protection & Affordable Care Act (Affordable Care Act).

HHS Secretary Kathleen Sebelius announced today (January 12, 2012) HHS considers to be unreasonable premium rate increases proposed by Trustmark Life Insurance Company in five states—Alabama, Arizona, Pennsylvania, Virginia, and Wyoming.  According to HHS, the allegedly excessive rate hikes would affect nearly 10,000 residents across these five states.

According to HHS, a review of the health insurance premium disclosures filed by Trustmark Life Insurance Company here found that Trustmark has raised rates by 13 percent in these five states.  For small businesses in Alabama and Arizona, when combined with other rate hikes made over the last 12 months, HHS claims rates have increased by 27.2 percent and 18.1 percent, respectively.   According to HHS, HHS says that an independent review engaged by HHS found that the rate increases were unreasonable because the insurer “would be spending a low percent of premium dollars on actual medical care and quality improvements, and because the justifications were based on unreasonable assumptions.”  HHS is calling upon Trustmark Health Insurance Company to rescind the rates and issue rebates to consumers or publically explain its refusal to do so.  The new rate review procedures allow Trustmark Health Insurance Company and other carriers accused by HHS of making unreasonable rate increases various options to dispute the charges

The rate review and reduction demand by HHS reflects its efforts to use its “rate review” authority from the Affordable Care Act to discourage health insurers from raising health insurance premiums by more than 10 percent.  HHS requires health insurers to notify HHS of rate increases over 10 percent and justify these increases. HHS generally views health insurance premium increases of more than 10 percent as unreasonable.  Under these new rate review powers,

Under the new rate review rules, HHS has the power to review proposed rate reviews and to report its findings but does not have the direct authority to force health insurers to limit premium increases to less than 10 percent or to impose legal or administrative sanctions directly against insurers for making what HHS views as unreasonable premium increases. However, as many as 37 states have the authority to regulate or reject unreasonable premium increases.  In the absence of direct authority to regulate insurer rates, HHS uses its ability to publicize its rate review determinations to invite state regulators and the public to apply pressure to insurers to keep down rate increases. 

In today’s announcement, HHS credits its new rate review powers with helping to prevent health insurance premium increases,  According to HHS, states with the power to regulate insurer premiums increasingly are using this authority.  Examples of how states have used this authority include:

  • In New Mexico, the state insurance division denied a request from Presbyterian Healthcare for a 9.7 percent rate hike, lowering it to 4.7 percent;
  • In Connecticut, the state stopped Anthem Blue Cross Blue Shield, the state’s largest insurer, from hiking rates by a proposed 12.9 percent, instead limiting it to a 3.9 percent increase;
  • In Oregon, the state denied a proposed 22.1 percent rate hike by Regence, limiting it to 12.8 percent.
  • In New York, the state denied rate increases from Emblem, Oxford, and Aetna that averaged 12.7 percent, instead holding them to an 8.2 percent increase.
  • In Rhode Island, the state denied rate hikes from United Healthcare of New England ranging from 18 to 20.1 percent, instead seeing them cut to 9.6 to 10.6 percent.
  • In Pennsylvania, the state held Highmark to rate hikes ranging from 4.9 to 8.3 percent, down from 9.9 percent.

 Targeting health insurers proposing rate increases of 10 or more percent is likely to result in a significant number of reviews.  A Kaiser Family Foundation Employer Health Benefits 2011 Annual Survey found average premiums increased 8% for single coverage and 9% for family coverage through May, 2011.

Companies that HHS finds have made excessive rate increases can either reduce their rate hikes or post a justification on their website within 10 days of the rate review determination.

 For More Information Or Assistance

If you need help reviewing or updating your health benefit program for compliance with ACA or other laws or with any other employment, employee benefit, compensation or internal controls matter, please contact the author of this article, attorney Cynthia Marcotte Stamer.

A 2011 inductee to the American College of Employee Benefits Council, immediate past-Chair and current Welfare Benefit Committee Co-Chair of the American Bar Association (ABA) RPPT Employee Benefits & Other Compensation Arrangements, an ABA Joint Committee on Employee Benefits Council Representative, the ABA TIPS Employee Benefit Plan Committee Vice Chair, former ABA Health Law Section Managed Care & Insurance Interest Group Chair, past Southwest Benefits Association Board Member, Employee Benefit News Editorial Advisory Board Member, and a widely published speaker and author,  Ms. Stamer has more than 24 years experience advising businesses, plans, fiduciaries, insurers. plan administrators and other services providers,  and governments on health care, retirement, employment, insurance, and tax program design, administration, defense and policy.   Nationally and internationally known for her creative and highly pragmatic knowledge and work on health benefit and insurance programs, Ms. Stamer’s  experience includes extensive involvement in advising and representing these and other clients on ACA and other health care legislation, regulation, enforcement and administration. 

Widely published on health benefit and other related matters, Ms. Stamer’s insights and articles have appeared in HealthLeaders, Modern Health Care, Managed Care Executive, the Bureau of National Affairs, Aspen Publishers, Business Insurance, Employee Benefit News, the Wall Street Journal, the American Bar Association, Aspen Publishers, World At Work, Spencer Publications, SHRM, the International Foundation, Solutions Law Press and many others.

For additional information about Ms. Stamer and her experience, see www.CynthiaStamer.com.

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Posted by Cynthia Marcotte Stamer

Labor Department Final Rule Defines Recreation Vehicle For Longshore & Harbor Workers’ Compensation Act

January 10, 2012
The U.S. Department of Labor’s Office of Workers’ Compensation Programs has issued a final rule implementing the Longshore and Harbor Workers’ Compensation Act’s exclusion for recreational vessel workers. The rule defines what constitutes a “recreational vessel” when applying the exclusion.

The LHWCA provides workers (or their survivors in the case of death) compensation for injuries related to maritime employment on the navigable waters of the United States or adjoining areas. 

Before 2009, the LHWCA excluded workers who repaired or dismantled recreational vessels fewer than 65 feet in length from coverage if they were covered by a state workers’ compensation program. The American Recovery and Reinvestment Act of 2009 expanded this exclusion by eliminating the 65-foot limitation.  Now, workers who repair recreational vessels of any length or dismantle them for repair are excluded from LHWCA coverage if they are covered under a state workers’ compensation law.

The final rule generally uses the U.S. Coast Guard’s standards for defining a recreational vessel. However, it adds two provisions the Labor Department intends to make it easier to apply these standards in the LHWCA context. First, a manufacturer or builder may determine whether a vessel is recreational within the meaning of the regulation based on the vessel’s design rather than on its end use. Second, noncommercial vessels that are recreational by design and owned or chartered by the federal or a state government fall within the recreational vessel definition.

Read the final rule here.

For Help or More Information
If you need help with worker classification or other human resources or internal controls matters, please contact the author of this article, Cynthia Marcotte Stamer.  Board Certified in Labor & employment Law by the Texas Board of Legal Specialization,management attorney, author and consultant  Ms. Stamer is nationally and internationally recognized for more than 24 years of work helping private and governmental organizations and their management; employee benefit plans and their sponsors, administrators, fiduciaries; employee leasing, recruiting, staffing and other professional employment organizations; schools and other governmental agencies and others design, administer and defend innovative compliance, risk management, workforce, compensation, employee benefit, privacy, procurement and other management policies and practices. Her experience includes extensive work helping employers carry out, audit, manage and defend worker classification,union-management relations, wage and hour, discrimination and other labor and employment laws, procurement, conflict of interest, discrimination management, privacy and data security, internal investigation and discipline and other workforce and internal controls policies, procedures and actions. 
Widely published on worker classification and other workforce risk management and compliance concerns, the immediate past-Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee and current Co-Chair of its Welfare Plan Committee, Vice Chair of the ABA TIPS Section Employee Benefits Committee,  a Council Representative of the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer works, publishes and speaks extensively on management, worker classification, re-engineering, investigations, human resources and workforce, employee benefits, compensation, internal controls and risk management, federal sentencing guideline and other enforcement resolution actions, and related matters.  She also is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly.

Other Resources

If you found this update of interest, you also may be interested in reviewing some of the other updates and publications authored by Ms. Stamer available including:

About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, compensation, data security and privacy, health care, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources available at www.solutionslawpress.com. 

THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 REGULATIONS.  ANY STATEMENTS CONTAINED HEREIN ARE NOT INTENDED OR WRITTEN BY THE WRITER TO BE USED, AND NOTHING CONTAINED HEREIN CAN BE USED BY YOU OR ANY OTHER PERSON, FOR THE PURPOSE OF (1) AVOIDING PENALTIES THAT MAY BE IMPOSED UNDER FEDERAL TAX LAW, OR (2) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED TRANSACTION OR MATTER ADDRESSED HEREIN.

©2011 Cynthia Marcotte Stamer, P.C.  Non-exclusive license to republish granted to Solutions Law Press. All other rights reserved.

 

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Posted by Cynthia Marcotte Stamer

Portion of Health Care Costs Paid By Government Programs Rose As Employer Provided & Other Private Health Care Coverage Declined In 2010

January 9, 2012
Declining enrollment in private insurance resulted in continuing growth in government financing of health care expenditures in 2010 according to the Annual Report of National Health Expenditures (Report).  The Report notes that since 2007, the economic recession and legislative changes led to a noticeable change in the shares of health care spending financed by businesses, households, and governments.
 
The federal government financed 29 percent of the nation’s health care spending in 2010, an increase of six percentage points from its share in 2007 of 23 percent, and reached $742.7 billion.  Part of that increase came from enhanced Federal matching funds for State Medicaid programs under the American Recovery & Reinvestment Act which expired in 2011.   
 
U.S. health care spending grew 3.9 percent in 2010 to $2.6 trillion or $8,402 per person according to the Report.   Review the details of the Report here.

National Health Expenditures 2010 Highlights

U.S. health care spending grew 3.9 percent in 2010.  Coupled with record slow growth of 3.8 percent in 2009; the 2009-2010 represents the two slowest rates of growth in the fifty-one year history of the National Health Expenditure Accounts.  The Report reflects the following breakdown of these expenditures;

  • Hospital Care: Hospital spending increased 4.9 percent to $814.0 billion in 2010 compared to 6.4-percent growth in 2009. Average annual growth in hospital spending between 2007 and 2010 was 5.5 percent. CMS reports this increase was slower than the trend between 2003 and 2006, when spending increased an average of 7.4 percent per year.  Growth in private health insurance spending for hospital services, which in 2010 accounted for 35 percent of all hospital care, slowed considerably in 2010.  The Report states that these trends occurred at the same time median inpatient hospital admissions declined and emergency department and outpatient hospital visits grew more slowly than in 2009.
  • Physician and Clinical Services: Spending on physician and clinical services increased 2.5 percent in 2010 to $515.5 billion, a deceleration from 3.3-percent growth in 2009. The 2010 deceleration reflects a decline in utilization, driven by a drop in total physician visits between 2009 and 2010 and a less severe flu season than in 2009.
  • Other Professional Services: Spending for other professional services, which includes providers of services such as physical therapy, chiropractic medicine, and mental health, decelerated slightly in 2010, increasing 3.6 percent to $68.4 billion after growth of 3.8 percent in 2009.
  • Dental Services: Spending for dental services increased 2.3 percent in 2010 to $104.8 billion compared to growth of only 0.1 percent in 2009. Out-of-pocket spending for dental services (which accounts for over 40 percent of dental spending) increased 0.5 percent in 2010 following a decline of 5.2 percent in 2009.
  • Other Health, Residential, and Personal Care Services: Spending for other health, residential, and personal care services grew 5.3 percent in 2010 to $128.5 billion, a deceleration from growth of 7.7 percent in 2009. This category includes expenditures for medical services delivered in non-traditional settings (such as schools or community centers), ambulance providers, and residential mental health and substance abuse facilities.
  • Home Health Care: Spending growth for freestanding home health care services slowed in 2010, increasing 6.2 percent to $70.2 billion following growth of 7.5 percent in 2009, as Medicare and Medicaid spending growth slowed in 2010.
  • Nursing Care Facilities and Continuing Care Retirement Communities: Spending for freestanding nursing care facilities and continuing care retirement communities increased 3.2 percent in 2010 to $143.1 billion, a deceleration from growth of 4.5 percent in 2009, driven by slower growth in Medicare and Medicaid spending.
  • Prescription Drugs: Retail prescription drug spending grew only 1.2 percent to $259.1 billion in 2010, a substantial slowdown from 5.1-percent growth in 2009. The slowdown was driven by slower growth in the volume of drugs consumed, a continued increase in the use of generic medications, loss of patent protection for certain brand name drugs, fewer new drug introductions, and a substantial increase in Medicaid prescription drug rebates.
  • Durable Medical Equipment: Spending for durable medical equipment, which includes items such as eyeglasses, contacts and hearing aids, increased 7.3 percent to $37.7 billion in 2010 after increasing 0.8 percent in 2009.
  • Other Non-durable Medical Products: Spending for other non-durable medical products, such as over-the-counter medicines, reached $44.8 billion, an increase of 2.6 percent in 2010, the same rate of growth as in 2009.

 Health Spending by Major Sources of Funds

The Report indicates that the portion of health care expenditures financed by private health insurance continued to decline as private health plan enrollment declined.  As a result, the proportion of health care expenditures paid by government programs continued to rise.  The federal government financed 29 percent of total health spending in 2010, a substantial increase from its share of 23 percent in 2007. Meanwhile, the shares of the total health care bill financed by state and local governments (16 percent), private businesses (21 percent), and households (28 percent) declined during the same time period.  Specifically, the Report indicates the following:

  • Medicare: Medicare spending grew 5.0 percent in 2010 to $524.6 billion, a deceleration from growth of 7.0 percent in 2009. Spending for fee-for-service (FFS) Medicare grew 5.0 percent in 2010 following growth of 4.5 percent in 2009. Medicare Advantage (MA) spending increased 4.7 percent in 2010, a steep deceleration from 15.6-percent growth in 2009 that resulted from an adjustment to payment rates in 2010.
  • Medicaid: Total Medicaid spending grew 7.2 percent in 2010 to $401.4 billion, a deceleration from 8.9-percent growth in 2009, driven primarily by slower growth in enrollment. Federal Medicaid expenditures increased 8.9 percent, while state Medicaid expenditures grew 3.9 percent. This difference in growth was due to approximately $41 billion in enhanced federal aid to states—a result of increased Federal Medical Assistance Percentages (FMAP) mandated by the American Recovery and Reinvestment Act of 2009 (ARRA).
  • Private Health Insurance: Growth in total spending for private health insurance premiums slowed in 2010 to 2.4 percent from 2.6 percent in 2009, continuing a deceleration that began in 2003. Growth in aggregate benefit payments also slowed, from 3.7 percent in 2009 to 1.6 percent in 2010. The slowdown reflects a decline in private health insurance enrollment, increases in cost sharing, and a shift by some consumers to plans with lower premiums. However, for the first time in seven years, growth in total premiums exceeded growth in total benefits; as a result, the private health insurance net cost ratio increased from 11.4 percent in 2009 to 12.1 percent in 2010.
  • Out-of-Pocket: Out-of-pocket spending grew 1.8 percent in 2010, an acceleration from growth of 0.2 percent in 2009. Faster growth in 2010 partially reflects higher cost-sharing requirements for some employers, consumers’ switching to plans with lower premiums and higher deductibles and/or copayments, and the continued loss of health insurance coverage.

The Report found household health care spending equaled $725.5 billion in 2010 and represented 28 percent of total health spending, slightly lower than its 29 percent share in 2007.  Growth in total private health insurance premiums slowed in 2010 to 2.4 percent from 2.6 percent in 2009, continuing a slowdown that began in 2003.  Despite this deceleration, for the first time in seven years, the growth in premiums exceeded the growth in insurer spending on health care benefits, with the net cost of insurance increasing by 8.4 percent or $11.3 billion in 2010. Out-of-pocket spending by consumers increased 1.8 percent in 2010, accelerating from 0.2-percent growth in 2009. 

The state and local government share of total health spending declined from 18 percent in 2007 to 16 percent in 2010 and totaled $421.1 billion, in part due to the temporary assistance in the Recovery Act.

 Project COPE: Coalition On Patient Empowerment & Coalition For Responsible Health Care Quality

Project COPE: Coalition on Patient Empowerment & the Coalition for Responsible Health Care Quality  are coalitions of individuals and organizations that share the belief that every American and American organization has a stake, and something to contribute to our ability to find and implement the best options for ensuring that the U.S. health care system provides quality, affordable health care.

Health care impacts every individual and every organization in America.  Consequently, every American citizen and organization including but not limited to health care providers, employers, insurer, and community organizations should take part.    The government, health care providers, insurers and community organizations can help by providing education and resources to make understanding and dealing with the realities of illness, disability or aging easier for a patient and their family, the affected employers and others. At the end of the day, however, caring for people requires the human touch.  Americans can best improve health care by not waiting for someone else to step up or speak up. 

Project COPE urges and invites each individual and organization speak up to help communicate and act to make health care work for themselves, their families and others when you can and share your input to help preserve and continue to develop real meaningful improvements to our health care system by joining Project COPE: Coalition for Patient Empowerment here by sharing ideas, tools and other solutions and other resources. 

For Help or More Information

If you need help reviewing and updating, administering or defending your group health or other employee benefit, human resources, insurance, health care matters or related documents or practices, please contact the author of this update, Cynthia Marcotte Stamer.

A Fellow in the American College of Employee Benefit Council, immediate past Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Group and current Co-Chair of its Welfare Benefit Committee, Vice-Chair of the ABA TIPS Employee Benefits Committee, a council member of the ABA Joint Committee on Employee Benefits, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer is recognized, internationally, nationally and locally for her more than 24 years of work, advocacy, education and publications on cutting edge health and managed care, employee benefit, human resources and related workforce, insurance and financial services, and health care matters. 

A board certified labor and employment attorney widely known for her extensive and creative knowledge and experienced with these and other employment, employee benefit and compensation matters, Ms. Stamer continuously advises and assists employers, employee benefit plans, their sponsoring employers, fiduciaries, insurers, administrators, service providers, insurers and others to monitor and respond to evolving legal and operational requirements and to design, administer, document and defend medical and other welfare benefit, qualified and non-qualified deferred compensation and retirement, severance and other employee benefit, compensation, and human resources, management and other programs and practices tailored to the client’s human resources, employee benefits or other management goals.  A primary drafter of the Bolivian Social Security pension privatization law, Ms. Stamer also works extensively with management, service provider and other clients to monitor legislative and regulatory developments and to deal with Congressional and state legislators, regulators, and enforcement officials concerning regulatory, investigatory or enforcement concerns. 

Recognized in Who’s Who In American Professionals and both an American Bar Association (ABA) and a State Bar of Texas Fellow, Ms. Stamer serves on the Editorial Advisory Board of Employee Benefits News, the editor and publisher of Solutions Law Press HR & Benefits Update and other Solutions Law Press Publications, and active in a multitude of other employee benefits, human resources and other professional and civic organizations.   She also is a widely published author and highly regarded speaker on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, Modern and many other national and local publications.   You can learn more about Ms. Stamer and her experience, review some of her other training, speaking, publications and other resources, and register to receive future updates about developments on these and other concerns from Ms. Stamer here.

Other Resources

If you found this update of interest, you also may be interested in reviewing some of the other updates and publications authored by Ms. Stamer available including:

About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, compensation, data security and privacy, health care, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources available at ww.solutionslawpress.com. 

THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 REGULATIONS.  ANY STATEMENTS CONTAINED HEREIN ARE NOT INTENDED OR WRITTEN BY THE WRITER TO BE USED, AND NOTHING CONTAINED HEREIN CAN BE USED BY YOU OR ANY OTHER PERSON, FOR THE PURPOSE OF (1) AVOIDING PENALTIES THAT MAY BE IMPOSED UNDER FEDERAL TAX LAW, OR (2) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED TRANSACTION OR MATTER ADDRESSED HEREIN.

©2011 Cynthia Marcotte Stamer, P.C.  Non-exclusive license to republish granted to Solutions Law Press.  All other rights reserved.

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Posted by Cynthia Marcotte Stamer

Help Careflite Celebrate New Facility 1/11

January 1, 2012

Help Careflite Celebrate New Facility 1/11

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Posted by Cynthia Marcotte Stamer

Careflite Dedicates New Facility January 11, 2012

January 1, 2012

Careflite Dedicates New Facility January 11, 2012

NTHCPA members and friends invited to attend the celebration!

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Posted by Cynthia Marcotte Stamer

Manufacturer’s Excessive I-9 Documentation Triggers Discrimination Liability

January 1, 2012

The Justice Department’s December 30, 2011 announcement of its negotiation of a settlement with small Georgia rug manufacturer Garland Sales Inc. (Garland) shows all businesses run big risks for violating Federal Civil Rights and other employment discrimination laws. 

The settlement highlights the growing activism of the Obama Administration in prosecuting national origin discrimination againstU.S.businesses and government agencies, as well as the careful tightrope that U.S.employers must walk to comply with federal employment eligibility verification (I-9) requirements without engaging in improper discrimination.

Garland Settlement

The Justice Department announced December 30th thatGarland has agreed to pay $10,000 in back pay and civil penalties, and to undergo training on proper employment eligibility verification practices to resolve allegations of illegal national origin discrimination and retaliation against Hispanics. 

The Justice Department had charged Garland violated federal discrimination laws by imposing unnecessary documentary requirements on individuals of Hispanic origin when establishing their eligibility to work in the United States, and by retaliating against a worker for protesting his discriminatory treatment. 

According to the Justice Department complaint, when a naturalized U.S. citizen of Hispanic descent, applied for a job with Garland in May 2009, he presented his unexpired driver’s license and an unrestricted Social Security card—a combination of documents sufficient to prove his identity and his authorization to work in the United States. The complaint alleged that Garland demanded that the he provide his “green card,” even thoughU.S.citizens do not have green cards to prove eligibility to work.   When Garland made further requests for documents, the worker objected to the company’s demands. Garland then rescinded the job offer.   The worker, along with another individual who was denied employment with Garland when the company rejected the individual’s valid documentation, will receive full back pay out of the $10,000 settlement.

The Justice Department’s complaint also charged that Garland required newly hired non-U.S. citizens and foreign-bornU.S.citizens to present specific and added work authorization documents beyond those required by federal law.   While the Immigration and Nationality Act (INA) requires that all employers require employees to present proof of eligibility to work as a condition of employment, it also specifically dictates what collection of documentation that employers must accept as establishing eligibility to work absent some culpable knowledge by the employer of the falsity of the documentation.  Employers that fail to collect and keep the required documentation face significant civil and criminal liability. 

While meeting the required I-9 documentation requirements is a critical responsibility, employers also must exercise care to avoid imposing excessive documentation requirements that would violate the INA’s non-discrimination rules. 

The INA requires employers to treat all authorized workers in the same manner during the hiring process, regardless of their national origin or citizenship status.   In the absence of factual evidence that would cause an employer to reasonably question the validity of documentation that otherwise would satisfy the I-9 documentation requirements, employers generally must accept any combination of documents sufficient to establish eligibility to work under the I-9 rules as sufficient.   

Discrimination Obama Administration Priority

Enforcing discrimination laws is a high priority of the Obama Administration.  Business leaders increasingly must recognize the need to tighten procedures to manage discrimination risks.  

The Garland settlement joins a lengthy list of settlements and other actions by the Obama Administration against businesses and government entities for alleged violations of U.S.civil rights and other nondiscrimination laws.  See, e.g. New Obama Administration Affirmative Action Guidance Highlights Organization’s Need To Tighten Nondiscrimination Practices; OFCCP Proposed Increased Disability Hiring Targets, Other Tougher Government Contractor Rules another Sign Of Rising Employment Discrimination Risks;  Incentives To Get Employee Into Wellness Education Requires Legal Risk Management; New School Racial Accommodation Guidance Gives Important Insights For Schools & Other Organizations On Obama Administration Affirmative Action Enforcement; Justice Department Landlord Suit Shows Businesses Face Rising Disability Discrimination Enforcement Risks.

These regulatory, audit, enforcement and other actions show that private businesses and state and local government agencies alike should exercise special care to prepare to defend their actions against potential disability or other Civil Rights discrimination challenges.  All organizations, whether public or private need to make sure both that their organizations, their policies, and people in form and in action understand and comply with current disability and other nondiscrimination laws.  When reviewing these responsibilities, many state and local governments and private businesses may need to update their understanding of current requirements.

Because the scope and applicability of disability and various other federal nondiscrimination and other laws have been expanded or modified in recent years by statutory, regulatory or enforcement changes, risk management efforts should begin with an assessment of the adequacy of existing policies and practices in light of the latest rules and enforcement actions.  Based on this assessment, business and governmental organizations should update policies and procedures as required, tighten documentation, and conduct ongoing, well-documented audits and training to mitigate exposures. 

In addition to following these general requirements, when dealing with eligibility to work documentation under the I-9 requirements,U.S.employers also should adopt and follow evenhandedly clearly established and communicated policies requiring employees to present required documentation. Employers should treat the I-9 eligibility requirements as satisfied if applicants and employees presenting a combination of documents sufficient under the INA to meet the eligibility to work documentation requirements unless the documents on the face provide a reasonable basis for calling into question the validity of the documentation or the employer otherwise has specific, credible factual information that would prompt a reasonable employer to question the veracity of the documentation presented.  The national origin of the applicant or employee should not be the basis for requiring additional proof or questioning the validity of documentation presented.  

Employers with highly diverse workforces or otherwise concerned about being questioned about compliance with I-9 work documentation requirements should consult with qualified legal counsel about the potential advantages of participating in the E-Verify Program or establishing and administering other uniformly administered practices to verify identity and the validity of documentation presented.  In all cases, such employers should make sure that their I-9 verification practices are carefully tailored and maintain proper documentation to make sure their ability to comply with both the verification and the nondiscrimination requirements of federal law. 

For Help With Compliance, Risk Management & Defense

If you need help in auditing or assessing, updating or defending your organization’s compliance, risk manage or other  internal controls practices or actions, please contact the author of this update, attorney Cynthia Marcotte Stamer here or at (469)767-8872.

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, management attorney and consultant Ms. Stamer is nationally and internationally recognized for more than 24 years of work helping employers and other management; employee benefit plans and their sponsors, administrators, fiduciaries; employee leasing, recruiting, staffing and other professional employment organizations; and others design, administer and defend innovative workforce, compensation, employee benefit  and management policies and practices. Her experience includes extensive work helping employers carry out, audit, manage and defend union-management relations, wage and hour, discrimination and other labor and employment laws, privacy and data security, internal investigation and discipline and other workforce and internal controls policies, procedures and actions.  The Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer works, publishes and speaks extensively on management, re-engineering, investigations, human resources and workforce, employee benefits, compensation, internal controls and risk management, federal sentencing guideline and other enforcement resolution actions, and related matters.  She also is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications. For more information about Ms. Stamer and her experience or to get access to other publications by Ms. Stamer see here or contact Ms. Stamer directly.

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