Tag Archives: constitution

Defending the Right to Bear…Toilet Lids

You would think a judge would know better. But then again, because he was also the local cemetery sexton, perhaps he was too busy to educate himself on the finer points of law regarding workers’ compensation fraud.

A former Seneca County village judge has been convicted of falsely claiming two men attacked him outside his courtroom two years ago. A jury found him guilty of insurance fraud, falsifying business records, defrauding the government and falsely reporting an incident.

The weapon he claimed to have been assaulted with? That would be the ubiquitous and sorely-in-need-of-regulating toilet tank lid. Yes, in what was sure to whip up a frenzy with the anti-toilet crowd, another seemingly innocent victim had suffered needless injury. Personally, as a pro-toilet guy, I feel compelled to urge calm and remind everyone that toilet lids don’t kill people; people kill people. While there is no specific constitutional amendment that protects the right to bear toilets, I can state unequivocally that they are essential for both number one and number two.

I sense I have strayed from my initial point.

The judge told police in August 2013 that he was attacked from behind while locking up the Waterloo Village Court. He claimed to have been choked with something and hit over the head with a heavy object. Village police, using what can only be described as excellent police investigative techniques, found the shattered lid of a toilet tank at the scene.

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Photo by Seneca County District Attorney’s Office

Ultimately, however, a story emerged that made it appear our jaded jurist made up the affair as part of a nefarious scheme to obtain prescription painkillers through a workers’ compensation claim. The district attorney who prosecuted the case said, “The jury heard evidence that this was a way for him to get a lifetime supply of painkillers.”

Can’t argue with him there. If you are looking for a way to get an endless supply of top-grade narcotics, then workers’ comp is where you want to be. We give that crap away like candy at Halloween.

Perhaps the fact that this guy spent nine days on a pain pump at a Rochester hospital, while doctors and nurses testified he did not sustain any injuries whatsoever from choking, a blow to the head or any kind of assault, should have been a clue. I find myself asking, then, why the pain pump? But then I remember, “Ah, yes, this was a workers’ comp case.”

Authorities report that the judge’s medical records showed, prior to the bogus assault, he’d been on prescription painkillers for lower-back pain and for gout throughout his body. He also had 20 to 30 previous insurance claims for alleged accidents.

The judge, who is not a laywer, had no known employment other than the acting village judge position — except, of course, for his position as cemetery sexton, where he is under indictment for allegedly stealing gasoline from the village. Perhaps he needed it to pick up all those prescriptions.

Honestly, we have a guy here who most likely has an obvious addiction problem and needs help beyond the two to seven years in prison he is currently facing. My bigger concern is the Waterloo village board. Despite the police department’s determination that the judge’s assault claim was false, the board re-appointed him to another term as acting village judge. Why they would do that is beyond my limited comprehension.

The lessons here are twofold. First, and most importantly, toilet lids are safe when used by responsible adults. We do not need a plethora of restrictions and regulations just because one person abused them. Second, this village judge and cemetery caretaker might be a criminal and addict, but that does not make him stupid. That designation, it would seem, is reserved for the village board, which clearly has its share of idiots.

Workers’ Comp Is Under Attack

This is the Year of Awareness — awareness by the general public about workers’ compensation issues.

There is the series by ProPublica, with three installments so far and more to come. You might not like it, but Michael Grabell and his team are accurately portraying pain points in workers’ compensation.

The Federal Occupation Safety and Health Administration’s review of the literature over the past couple of decades also fuels the fire about the inadequacy of workers’ compensation, and the spill of employer obligations onto the general taxpaying population.

Last year, the Texas Tribune ran a series, “Hurting for Work,” that criticized that state’s work injury protection system (or lack of it).

And a Florida trial judge has taken the position that workers’ comp is no longer of constitutional grade.

Now, Mother Jones has published an article it says exposes the true intent of the opt-out movement: to diminish benefits across the nation. Opt-out supporters contest that conclusion and say they only want employers (in this case, only big business can afford the resources to opt out) to be able to provide better benefits in a more consolidated manner to their workers. Proponents are not, however, shy about confirming that their intent is to take opt-out nationwide, to all states.

The latest test case is Tennessee, where Sen. Mark Green’s SB 721 has gone through several amendments in an attempt to address critics — albeit, in my opinion, these amendments fall far short.

There are two major problems with opt-out, and in particular with SB 721 if it is to be used as a model: 1) the cap on lifetime medical benefits; and 2) the lack of accountability to public regulators.

Most state workers’ compensation systems have a limitation on both temporary disability indemnity and permanent disability indemnity. There has been for a long time a debate as to the adequacy of indemnity benefits to keep the paycheck-to-paycheck worker sustained during recovery, and those benefits differ greatly from state to state. This debate is sure to continue regardless of what “reform” ever gets passed.

This debate also applies to the adequacy of permanent disability indemnity– whether it adequately compensates for the loss of an eye, etc. Again, where one gets hurt makes a huge difference in how much money a disability is “worth,” and the debate about this will never settle.

The provision of medical benefits for the lifetime of an injured worker, however, has never been on the table — that is a topic that is simply sacrosanct, for the very simple reason that it was part of the original grand bargain.

State reforms have, however, over the past two decades done as much as possible to eviscerate lifetime medical by requiring adherence to guidelines, by scaling based on co-morbidities, by forcing third-party reviews and by trimming reimbursement or rebalancing fee schedules, among other tactics.

These efforts have been in reaction to perceptions that employers are unfairly paying for someone else’s problem, or to abuses by unscrupulous providers. Broad-brush attempts to correct these problems reel in unsuspecting victims, just as tuna nets capture innocent dolphins.

The Mother Jones article is critical of the lobbying efforts of the Association for Responsible Alternatives to Workers’ Compensation, implying that its big-company sponsorships and spending is sinful.

It’s not — it’s just political reality. Just because a bunch of people with resources get together on a specific mission is not a reason to castigate either the people or the mission. It’s done on both sides of nearly any debate. That’s how we do things in America.

Painful as it is for this industry, though, the fact is that workers’ compensation is under attack — from all sides.

Employers are sick and tired of the cost of the system and how little control they have over it. They’re paying for it and don’t see much if any value or return on investment.

And guess what? Workers who go through workers’ compensation are likewise sick and tired over the cost of the system and how little control they have over it.

Is this the fault of us, the professionals who have the task of administering benefits?

In part, yes.

But the larger issue is what society wants, and what all this attention lately is telling me is that society wants a way to provide security to both business and workers — in a manner that is better than what workers’ compensation has devolved into.

I don’t view opt-out as evil. I do view it as a necessary element in the debate about the adequacy of workers’ compensation to deliver on its original promise: protect employers from economic ruin when someone gets hurt, and protect the worker who got hurt.

If you take ARAWC’s mission at face value, what the group wants to do is laudable. It is saying that state workers’ comp systems no longer are a viable piece of the social contract, that private industry can do it better.

Maybe it can, if there are reasonable protections that meet the essential elements of work injury protection — and that means taking care of an injury for life and not stacking dispute resolution in favor of one party or the other.

But this column isn’t about ARAWC, or opt-out; it’s about an awareness that is developing.

Workers’ compensation used to hide in the shadows of healthcare and disability. Ask anyone just a few years ago about work injuries and you’d get an earful about “workman’s compensation” and how a neighbor is cheating the system.

Now the public is beginning to ask: What are all these businesses doing for their pay when there’s all these people who are being thrown to the curb for trash pick-up day? Why are businesses paying for services that don’t seem to be delivered on time or in enough quantity? How is it that an insurance company that agreed to take care of an injured person for life can delegate that obligation to public welfare?

As I see it, the public assault on workers’ compensation, the trend that is developing toward opt-out systems and the overall malaise that seems to have settled over work comp portends a much-needed, long-deserved debate.

The public is asking questions. Hard questions. Because the public isn’t seeing the value in work comp that had been promised (and delivered) for so long.

We’re entering into a whole new era of business vs. labor dispute. The haves and the have-nots are drawing lines in the sand.

The last time this happened, the federal government threatened imposition. It could happen again.

What we rely on for work injury protection systems will be vastly different in 10 years than what exists now. It’s clear to me this is what’s happening.

Less clear is what will actually exist in 10 years.

This article first appeared at WorkCompCentral.

Case for Reinventing Insurance in India

Since independence, all governments of India have committed to gradual rather than revolutionary means for spreading democratic and socialist principles (as attested notably by the preamble to the constitution of India). Independent India averted the revolutions (and most of the debates) that have shaped the role of the state in the western world for some 500 years. In recent history, India never had to face its Thomas Hobbes, Jean-Jacques Rousseau, John Stuart Mill, Georg Wilhelm Friedrich Hegel, Karl Marx, Beatrice and Sidney Webb, Franklin Delano Roosevelt or Margaret Thatcher, John Maynard Keynes or Milton Friedman. India was saved the horrors of the French, American, Russian, Turkish, Cultural (Chinese) or Iranian revolutions (to mention but a few). India was largely spared the two World Wars and most of the “…isms” (fascism, communism, Marxism, capitalism, etc.). For every political fad that swore by TINA (“There Is No Alternative”), India responded with its inimitable TATA (“There Are Thousands of Alternatives”). It had its gradual transition away from non-democratic practices (e.g., abolition of privy purses in 1971 and of debt bondage in 1976) to a welfare democracy. Even the embrace of the “Washington consensus” (a combination of open markets and prudent economic management) under the guidance of Manmohan Singh has not changed the essential nature of the state.

This “Fabian” model meant that the state was committed to provide welfare, not merely security, to the citizens, and that central government was in the main responsible for funding, producing, procuring, allocating and distributing most goods and services. This has been done in large measure through subsidies to public enterprises, producers of inputs, private-sector producers and consumers. The goods and services whose availability and price have been modified through subsidies include food, water, energy, financial services, labor, education, healthcare, fertilizers, information and media. As the public demanded more and more, the state promised more and more, sometimes through milestone measures (e.g., the largest debt waiver and debt relief program for farmers, in 2008) but mainly through quasi-permanent subsidies, which have led to a sizable fiscal deficit (almost 75% of the 2014-15 budget estimate, and 4.1% of GDP). The net cost of these handouts and subsidies is much higher than their nominal value, for three reasons: the interest payable to fund the deficit, the losses because of intermediation (e.g., it has been reported that for every kilogram of subsidized grains delivered to the poor, the government released 2.4 kg from the central pool) and the societal effects of enhanced inequity (an IMF working paper titled “The fiscal and welfare impacts of fuel subsidies in India” argued that the richest 10% of the households benefited from fuel subsidies seven times more than the poorest 10%).

This is why a policy of “less government” could have much scope by divesting ownership of public sector undertakings (PSUs) in manufacturing, services and distribution and reducing subsidies substantially. However, the existing system has created many winners that would presumably be motivated and suitably represented to protect their vested interests by militating for status quo. Additionally, certain social services must be improved considerably (mainly water-sanitation-health, financial protection, food security and education), but acting on those needs would lead to more rather than less government. Similarly, actions to remedy inequitable targeting and inefficient distribution of subsidies could bring “more governance” only if preceded by more government intervention and spending.

So, what is the road to “less government and more governance” that would both engage the many who today enjoy representation without taxation and protect future taxpayers from the financial and societal ramifications of today’s consumption? We submit the answer is in “localism.”

“Localism” means encouraging people to be involved in elaborating and governing local solutions, with only subsidiary support from government. Most of India’s population is rural and in the informal sector. For this vast majority, the world is local, and local is the measure for most things. It is a moot point to argue whether people wish to be in the informal sector (to be excluded from the framework through which the government collects taxes and imposes regulations) or whether they are victims of circumstances (of being de facto excluded from the practical measures through which the government delivers universal rights for all citizens). The essential point is that people belong to local groups through which they access benefits that are not otherwise available as public goods. Therefore, communities reinforce the norms and networks that enable individuals to act collectively, influence decisions of single community members on the economic and social engagements they can/must/must not enter into, who can/cannot do so and on how benefits are distributed. Compliance with consensus flows from members’ reliance on the community’s patterns of reciprocity. As the community reaches most everybody on a continuing basis, it can be mobilized to play a role in “more governance” of local activities and structures.

Experience from rural India and from other countries confirms that underserved rural communities have been able to operate community-based mutual-aid schemes that create welfare and distribute benefits, which are funded by resources of the members. Such collective action of groups, by groups and for group members is a major paradigm shift from the mentality of reliance on government handouts, decisions and entitlements. The change in mindset is from being dependent to being dependable; the change in the financial model is from relying on inflow of charity to relying on pooling of own funds, which are otherwise invisible and inaccessible, to obtain welfare gains. The argument in favor of empowering community-based mutual aid is not merely that it is more opportune, but that it is more legitimate. Recalling the words of Abraham Lincoln (a speech from 1854, quoted in G.S. Boritt, 2004: Lincoln and Democracy): “the objective of government is to do for a community of people whatever they need to have done but cannot do at all or cannot so well do for themselves in their separate and individual capacities.” If now the case is that communities of people can do for themselves what the government cannot so well do for them, is it not then self-explanatory that the government should do all it can to support such action at the local level? Moreover, the argument in favor of encouraging the proliferation of local action is consistent with the democratic system of India, where interest groups are well established.  In his book The Logic of Collective Action: Public Goods and the Theory of Groups (1965), M. Olson pointed out that small local groups can form more easily and function more effectively to advance their interests. Olson also asserted that it is easier for the government to support many small groups than few large ones, and by supporting community-based self-interest the state can also advance its interests more easily and less expensively. If the reason for seeking “less government” is to encourage more self-reliance and hard work and a decrease in dependence on acquired rights and corruption, then does it not follow that government should provide tangible support to encourage voluntary action? The pooling of part of people’s resources for the advancement of community-based welfare gains serves the interest of the members of such groups (who can take charge of rationing and of priority-setting relating to the use of their funds) and also of the government (which could leverage the community-based risk management by limiting its intervention to subsidiary coverage of only rare events).

The development of community-based health insurance in India as a mutual-aid activity, replacing entitlements or debt, is one of the most effective mechanisms for voluntary social change.

Just as after independence India abolished several homegrown systems based on inequality of rights (e.g., chaudhary, deshmukh, jagir, samanta and zamindar) and favored equality through democracy, so asset creation should take primacy over money lending (in all its forms, from village shark to microfinance and to banks), for the same reason. India also abolished bonded labor (which also involves interlinking debt and exploitative labor agreements), even if this practice is not yet dismantled completely, according to the International Labor Organization (ILO). And the infamous phenomenon of farmer suicides is also linked, at least in part, to debt: Farmers are held morally deficient for inability to repay loans, when in fact the reason for that insolvency is crop failure (occasioned by the inherent risks of agriculture: too much or too little rain, too hot or too cold climate, pests etc.). Many other countries developed crop insurance to protect both farmers and farming. In India, agricultural insurance is used mostly to securitize loans rather than farming (farmers must pay the premium when they borrow, but the payout goes to the lending bank).

Disconnecting crop insurance from borrowing and connecting it with “what a responsible adult does” to avert the risks of agriculture can bring about safer agriculture and more governance with less government. This change is best accomplished when embraced by local communities, not merely single individuals. When agriculture is a safer economic activity, more farmers are likely to continue farming (and thus provide food security). When crop insurance becomes an act of mutual aid, something everybody in our village does, it is easier to mobilize the community to also encourage asset creation, and better financial protection. The virtuous cycle of more community-based cooperation fosters multiple positive changes, including improved targeting of government support for financial protection, better advisory to farmers on how to improve their agricultural productivity and thus food security and enhanced equality. These are objectives that have never been achieved by debt/credit extension or debt relief, because such programs missed completely the opportunity to leverage the collective energy that, what the community can do together, none of its members can do alone.

Creation of such local asset pools may start with modest amounts, as many villagers are cash-poor, and will first want to gain trust that the new form of collective action will deliver welfare to many members of the group, not just to a few powerful or privileged persons. However, the accumulation of funds will grow over time, especially if such growth is stimulated by the government. The government can encourage such solidarity-based collective action by passing enabling regulations to recognize mutual and cooperative insurance schemes (as part of the revision of the insurance law). Indonesia has recently changed its insurance law to recognize mutual and cooperative insurance at par with commercial insurance, to facilitate the development of mutual micro-insurance in rural communities. The European experience has shown that today’s large financial institutions originated from exactly such community-based local initiatives. As these were allowed and supported to grow, they served as the basis for universalization of health insurance, agricultural insurance and natural catastrophe insurance. In some countries (e.g. Switzerland, France, the Netherlands, Belgium or South Africa) ,the local schemes have morphed into large private or cooperative insurance companies. The local origin of the activity was essential to ensure that local groups can define their local priorities (which enhance local willingness to pay) and operate their scheme with locally dependable persons (which enhances flow of information, notably through gossip, about the fair and equitable treatment of all members of the scheme).

Government support for community-based asset creation can provide the government with information that it does not have currently but that it needs to enhance governance and the government’s revenue side. The shift from remote governance to local governance relies on local trusted elites, a new kind of elite, different from the capitalist elite and the bureaucratic elite. The local elite needs to be given a good start (by imparting private sector methods for social sector activities, minus the profit-taking), and the government must still provide worst-case protection. But for the rest, government should encourage communities to devote their talents to create public goods, to fend for themselves, to concentrate on assuming responsibility for their own welfare.

This is so much better than the present situation, in which many people entertain huge, unrealistic expectations and contradictory demands from the government based on messages, disseminated for years, that welfare is a right; and when they receive welfare or debt/credit benefits, rather than being grateful, many people feel that their due has reached them too little and too late. Anchoring the support to local asset-building by community-based collective action enhances the notion that we can do more on our own and allows each local group to design and do itself some of the work that hitherto it waited for the government to do. Supporting “localism” means that welfare creation is the legitimate domain of each community, delivered bottom-up rather than entirely top-down, supported by the government rather than the exclusive responsibility of the state to each individual. Localism will enhance governance because communities, governing their own priorities and resources, are very good regulators of their local scheme, because they are responsible for doing, not debating, and their actions are transparent locally. This transition from external to community leadership entails transition to performance-related legitimacy and away from formal title or appointment. It can also be the transition from short-termism (with the next elections as implied statute-of-limitations) to the long-term, recognizing that to achieve universal access to financial services, or to health insurance, or to secured livelihoods, or to relevant agricultural insurance or better sanitation may take decades. Notwithstanding the patience needed to get results, localism can provide the platform for less government and more governance now.

Women's Health Services And The Patient Protection & Affordable Care Act

Effective August 1, 2012, federal regulators expanded the list of prevention-related services that the Patient Protection & Affordable Care Act (Affordable Care Act) requires that non-grandfathered group health plans cover in-network at no cost to covered persons to include eight more prevention-related health services for women including coverage for the mandate to cover certain contraceptive services that has engendered much debate and opposition from various religious organizations and others.

Employers and other sponsors and insurers of group health plans should review and update their health plan documents, contracts, communications and administration practices to ensure that their health plans and policies appropriately cover these and other prevention-related services that current federal regulations mandate that group health plans (other than grandfathered plans) must cover to comply with the Affordable Care Act.

Affordable Care Act Requires Non-Grandfathered Health Plans Cover Lengthy List of Prevention-Related Care With No Cost Sharing

As part of the sweeping reforms enacted by the Affordable Care Act, Congress has mandated that except for certain plans that qualify as “grandfathered,” group health plans and insurers generally must pay for 100% of the cost to cover hundreds of prevention-related health care services for individuals covered under their health plans without any co-payments or other cost-sharing.

Federal regulations have mandated since 2010 that group health plans and insurers provide in-network coverage in accordance with federal regulations implementing the Affordable Care Act’s prevention-related health services mandates for more than 800 prevention-related services listed in regulations originally published in 2009. See Agencies Release Regulations Implementing Affordable Care Act Preventive Care Mandates. The Affordable Care Act gives federal authorities the power to expand or modify this list.

Following publication of the original list, the Obama Administration engaged in lengthy discussion considerations about the scope of contraceptive and other women’s health services that would qualify as prevention related services including lengthy discussions and negotiations about mandates to provide contraceptive services viewed as highly controversial by many religious organizations and several other employers. See Affordable Care Act To Require Health Plans Cover Contraception & Other Women’s Health Procedures.

Obama Administration Adds Contraceptive & Other Women’s Health Services To Required Prevention-Related Coverage List Effective 8/1/2012

The Obama Administration moved forward on its promise to add contraceptive services and a broad list of other women’s health services to the list of prevention-related health services that employer-sponsored health plans must cover without cost to employees despite objections from religious organizations and others that the contraception mandate violates the Constitution’s freedom of religion protections.

The Obama Administration’s announcement earlier this year that it intended to move forward with plans to mandate that group health plans — including those of certain employers affiliated with religious organizations to cover contraceptive counseling and other services as prevention-related services has prompted outcry and legal challenges from a broad range of religious organizations and others. See e.g., University of Notre Dame v. Sebelius; Hercules Industries, Inc. v. Sebelius. On July 27, 2012, a Colorado District Court granted a temporary injunction barring enforcement of the contraceptive coverage mandate against a small, Catholic family-owned business challenging the mandate as a violation of the Constitutional religious freedoms of its owners. See Hercules Industries, Inc. v. Sebelius.

While these and other litigants continue to challenge the contraceptive mandates, Obama Administration officials continue to voice their commitment to standby and enforce the contraceptive and other prevention-related services mandates as implemented by current regulation. Employer and other health plan sponsors and fiduciaries that do not wish to risk exposure for violating these mandates should review and update their health plan documents, summary plan descriptions and other communications, and administrative and other procedures as necessary to comply with the applicable requirements of the regulations.