Tag Archives: medical

Hobby Lobby’s Aftermath

Edward Zelinsky (Cardozo) has just posted on SSRN his article (42 Rutgers Law Record 109-25) The Aftermath of Hobby Lobby: HSAs and HRAs as the Least Restrictive Means.

This is his Abstract:

In Burwell v. Hobby Lobby Stores, Inc., the U.S. Supreme Court held that, under the Religious Freedom Restoration Act of 1993 (RFRA), closely-held corporations’ employer-sponsored medical plans need not provide forms of contraception to which the shareholders of such corporations object on religious grounds. The question now arises how the President, the Congress and the Departments of Health and Human Services (HHS), Treasury and Labor ought to respond to the Hobby Lobby decision.

The best alternative is to require any employer which objects to providing contraception to fund for their respective employees independently-administered health savings accounts (HSAs) or health reimbursement arrangements (HRAs). An HSA or HRA permits the covered employee to spend employer-provided, pre-tax health care dollars on any medical service the employee chooses without implicating the employer in the employee’s spending decision. The HSA/HRA alternative respects the religious rights of sponsoring employers since, unlike conventional insurance or self-insured health plans, the sponsoring employer’s plan does not provide a menu of choices which frames the employees’ decisions. Simultaneously, the HSA/HRA approach respects the autonomy of employees to spend health care dollars on whatever medical services such employees select including services to which the employer objects.

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Fifth Circuit Holds Lactation Discrimination is Unlawful Sex Discrimination

The E.E.O.C. (Equal Employment Opportunity Commission) issued a press release about an important decision coming from the Fifth Circuit Court of Appeals.

In this decision, the court held that the company unlawfully discriminated against a female employee when they fired her.  In this case, the female employee was lactating or expressing milk.  The female employee asked her employer if she would be able to pump breast milk at work.  The company then fired the employee.

The court relied on the Title VII of Civil Rights Act, which was amended by the Pregnancy Discrimination Act of 1987.  The Pregnancy Discrimination Act provided that a company could not discriminate against a female worker on the basis of pregnancy, childbirth, or a related medical condition.

The Fifth Circuit Court of Appeals dismissed the argument that “pregnancy-related conditions” ended on the day the mother gave birth.  In its decision, the court explained that lactation was a physiological condition distinct to women who have undergone a pregnancy.  In other words, women, not men, lactate or express milk.  Therefore, a company discriminates based on sex when it fires a woman for lactating.

via Fifth Circuit Holds Lactation Discrimination is Unlawful Sex Discrimination.

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EEOC’s First GINA Suit Settlement

The first settlement between the EEOC and an employer over GINA is important because it brings attention to this relatively new law.  EEOC charges alleging GINA violations have increased each year.  Consequently, it is important for employers to ensure their policies and procedures are compliant with GINA procedures.

The Genetic Information Nondiscrimination Act (GINA) went into effect in 2009.  Some of GINA’s regulations are as follows.

  • It is illegal for employers to discriminate against employees or applicants based on their genetic information.
  • Employers cannot request or obtain genetic information, which includes any information about an employee or an applicant’s family history.
  • GINA also applies to third parties.  So, employers cannot request or obtain family medical history, even through a third-party medical provider or examiner.
  • There are exceptions for voluntary health risk assessments.  However, if the employee is receiving an incentive for completion of the Health Risk Assessment, the employer must make clear that an employee need not answer any of the questions about family medical history in order to obtain the incentive.

On May 7, 2013, the U.S. Equal Employment Opportunity Commission (“EEOC”) reached a milestone of sorts as it filed – and then settled – its first complaint ever alleging genetic discrimination under the Genetic Information Nondiscrimination Act of 2008 (“GINA”).

The EEOC filed suit in Oklahoma federal court against Fabricut Inc., one of the world’s largest distributors of decorative fabrics, alleging that Fabricut violated GINA and the Americans With Disabilities Act (“ADA”) by unlawfully asking a job applicant for her family medical history in a pre-employment, post-job offer medical examination, and allegedly rescinding her job offer based on the belief that she had carpal tunnel syndrome.

The EEOC and Fabricut reached a settlement, which is the first settlement in a GINA case.  In the consent decree, Fabricut agreed to pay $50,000 but did not admit to violating GINA or the ADA.

via EEOC’s First GINA Suit Serves As Reminder of Pre-Employment Exam Pitfall | Proskauer Rose LLP – JDSupra.

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FMLA and Adult Children?

On January 14, 2013, The Department of Labor issued a new interpretation that clarifies its position on the ability of employees to take leave under the FMLA to care for an adult child who has a disabling medical condition.  You can read the DOL’s guidance for adult children here.

The FMLA allows employees to take leave to care for a son or daughter with a serious health condition.  However, the scope of allowable leave narrows once an employee’s son or daughter reaches 18 years old.  At that point, a parent is entitled to take FMLA leave when all four of the following occur:

(1) the adult child has a disability as defined by the ADA;

(2) the child is incapable of self-care due to that disability;

(3) the child has a serious health condition; and

(4) the child is in need of care due to the serious health condition.

Prior to this interpretation, there was some question as to whether the adult child’s disability must have developed before the child reached 18 years of age for the parent to be eligible for FMLA leave.  The Department of Labor has now clarified that the age of onset of the disability is immaterial so long as the child at issue has a disability under the ADA.

This interpretation reflects the impact of the ADAAA’s expansion of the definition of “disability” on the FMLA and will enable more parents to take FMLA-protected leave to care for their adult sons and daughters with disabilities.

via New Department of Labor Interpretation on FMLA Leave for Adult Children | Baker, Donelson, Bearman, Caldwell & Berkowitz, PC – JDSupra.

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Failure-to-warn not preempted by federal law

The Ninth Circuit (en banc) held that a state-law failure-to-warn was not preempted by the Medical Device Amendments to the Food, Drug, and Cosmetic Act.  The Ninth Circuit explained that the Amendments parallels the state-law claim, and therefore does not preempt, either expressly or impliedly.

What does this mean?  The federal court of appeals made a decision whether a federal court or a state court had jurisdiction over the failure-to-warn claims.  The failure-to-warn state-law claims arise when a medical manufacturer fails to warn the patients or its physicians of known-dangers of the medical device.

The arguments in the lawsuit were rooted on the MDA explicit preemption clause – which provided that federal courts had the power to hear the case exclusively.

So why was that preemption clause irrelevant to this situation?  The Supreme Court had previously ruled, in 3 preemption cases under the MDA, that the MDA does not preempt a state-law claim for violating a state-law duty that parallels a federal-law duty under the MDA.

 

If anything else, this is a very interesting read if you are interested in preemption rationales – express, field, and conflict.

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California Can Make Cuts To Medi-Cal Health Care Program

The Ninth Circuit held that California could make cuts to the Medi-Cal Health Care program and vacated all injunctions against California.  The opinion can be accessed here.  As the three-judge panel stated,

Medicaid, as a voluntary program, does not create property rights.

In 2011, plaintiffs (a Medi-Cal beneficiary, 5 pharmacies, a pharmacy organization, an independent living center, and a CA association of independent living centers) sued California and the U.S. Dep’t of Health and Human Services to block the cuts under the Medicaid Act.  The district court granted injunctions against California, blocking the enactment of the cuts.  The Ninth Circuit, on appeal, vacated these injunctions.

The Ninth Circuit stated that Chevron U.S.A v. Natural Resources Defense Council requires deference to Sebelius’ interpretation of California’s amendment to its Medicaid plan – called a state plan amendment.  The Ninth Circuit stated,

Considering all the evidence of Chevron-esque delegation in these cases, we hold that the balance tips to the side of deference – both to the secretary’s implicit interpretation that states are not required to follow any specific methodology in submitting SPAs [state plan amendment] and to its explicit determination that the SPAs at issue comply with federal law.

The decision notes that Medicaid “is a colossal undertaking,” with joint funding from the U.S. government and the states.

Congress explicitly granted the secretary authority to determine whether a state’s Medicaid plan complies with federal law.

The secretary understands the [Medicaid] Act and is especially cognizant of the all-important yet sometimes competing interests of efficiency, economy, quality of care, and beneficiary access.

The Ninth Circuit also concluded that plaintiffs’ claims that California violated the supremacy clause was unlikely to prevail under Douglas v. Independent Living Center (2012).  The Court explained,

Even assuming that the supremacy clause provides a private right of action – the secretary has reasonably determined that the state’s reimbursement rates comply with § 30(A) [of the Medicaid Act].

via Courthouse News Service.

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