Michigan Civil Service Extends Healthcare Benefits

It is safe to say that healthcare and the availability of benefits are important to all working people in Michigan.  Nothing wreaks havoc on our day-to-day life more than an unexpected illness, especially when we lack the healthcare benefits necessary to secure the proper treatment.  

A recent decision by the Michigan Court of Appeals held that the Michigan Civil Service Commission (MCSC) could expand the eligibility of health care benefits for state employees to their co-residents, if those persons are at least 18 years old, NOT relatives, and have resided within the same household as the state employee for at least 12-months (but not as a renter or tenant).  

This potential coverage expansion applies to employees who do not have an eligible spouse. Thus, the coverage would apply to boyfriends, girlfriends, and/or same sex partners, as long as they meet the criteria for coverage.

The issue arose when the MCSC allowed for the additional healthcare coverage, and the Attorney General sued on the basis of a violation of Equal Protection; the expanded coverage discriminated against married state employees by excluding married employees from being able to cover non-spouses or other blood relatives. The Attorney General suggested that the policy was a way to circumvent Michigan’s “Marriage Amendment,” which prohibits the recognition of any “agreement” other than “the union of one man and one woman in marriage.” 

The Court of Appeals found the Attorney General’s argument unpersuasive and affirmed the trial court's dismissal of the case.  The appeals court held that the new policy, “does not in any way prohibit incidentally benefiting such agreements, particularly where it is clear that an employee here could share benefits with a wide variety of other people.”   The Court further explained that the policy does not, “depend on the employee being in a close relationship of any particular kind…beyond a common residence.”

Further, the Court of Appeals determined that the matter deserved a heightened standard of review, and as such, the policy is “rationally related to advance a legitimate state purpose.”  Specifically, the Court held that as the MCSC drafted the eligibility criteria after negotiating with the unions, “it is not the place of the courts to second-guess the wisdom, need, or appropriateness of the state action.” Lastly, the appellate court recognized the Civil Service Commission as having “plenary and exclusive authority” in setting eligibility guidelines for state workers, “because they are provided in exchange for services rendered by state employees.”

In sum, if you are an unmarried Civil Service employee, you may be able to provide healthcare benefits for anyone who has been living with you, as long as they have done so for at least 12 continuous months, they are not a tenant or renter, they are not a blood relative, and they are at least 18 years old.

Apparently, our court of intermediate appellate review does not wish to tread upon the authority of the state bureaucracy when it comes to providing health care benefits for its own.  We here at the Law Blogger think perhaps that is as it should be under our separation of powers.

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Posted in: Attorney General,civil service,health care,Michigan Civil Service Commission,Michigan Court of Appeals

SCOTUS' Judicial Review of Federal Health Care Legislation

This is a guest blog post on SCOTUS' historic and extensive judicial review of the health care legislation.  Now that the dust is settling after oral arguments in March, we here at the Law Blogger have enlisted Wayne State University Law Professor Robert Sedler, who teaches Constitutional Law, to provide his expert analysis on this topic.  Professor Sedler has commented widely on this issue currently pending before the U.S. Supreme Court.

The constitutional challenge made to the health care statutes has been to the so-called “individual mandate” in PPACA as being beyond the constitutional power of Congress under the commerce clause. The opponents contend that this provision is unconstitutional and that the rest of the act cannot be severed from this provision, so that the entire Act fails.

The High Court took the unusual step of reserving three days in March for oral arguments in review of the case; normally advocates get an hour to present their arguments and attempt to convince the bench.

Sometimes in oral argument, the position of judges on the issue in question is clear; sometimes it is not; and sometimes, there are surprises both ways.

In the arguments in this case, the questions of six Justices were so one-sided that their position was clear, and this coincided with their ideological disposition.  For example, Justices Scalia and Alito sharply questioned the government's lawyer [the Solicitor General; the petitioner in this case] and either didn't ask questions, or asked only soft questions of the respondents’ lawyers. Justice Thomas never asks questions, but he is certain to vote with Scalia and Alito.

Scalia and Alito made it clear that they consider the individual mandate unconstitutional and are disposed to invalidate the entire law.  Justices Ginsburg, Breyer, Sotomayor and Kagen did just the reverse, strongly questioning the respondents’ lawyers and using the questions to make their points, just as Scalia and Alito did in their questioning of the government's lawyer. The liberal bloc will doubtless vote to uphold the individual mandate.

Justice Roberts was tougher on the Solicitor General, although he asked some questions of the challengers’ lawyers.  For his part, Justice Kennedy asked hard questions of the lawyers on both sides. and, as is so often the case, may be the swing Justice.

The possible outcomes are as follows:

        The individual mandate is constitutional. Kennedy joins the four liberals. Roberts joins the three conservatives in dissent, or may concur with Kennedy to make it 6-3 rather than 5-4.

        Justices Kennedy and Roberts join the three conservatives to hold the individual mandate unconstitutional and that the rest of the act cannot be severed, so that the entire act falls.

        Justices Kennedy and Roberts hold that the individual mandate is unconstitutional, but that all of the rest of the act is severable. This is what the Eleventh Circuit held.

        Justices Kennedy and Roberts hold that the individual mandate is unconstitutional, but that the rest of the act can be severed except for the requirement that the insurance companies insure everyone despite a pre-existing condition, and that ratings for individual policies be community wide. This was the government's position.

Predictions as to what the High Court will do - and there have been many- are completely speculative and unnecessary. The Court will decide the case by the end of June, with several of the Justices reading their concurring or dissenting opinions from the bench in the Chamber of the Supreme Court.  At that time, on that date, we will know the fate of the federal health care statutes.

Law Blogger Note:  although the preliminary voting among the Justices in conference took place at the end of March, the Justices sometimes change their minds, and thus their vote.  No one but the Justices themselves attend these case conferences.  Also, leaks among the law clerks and court staffers are  exceedingly rare.  We will all have to stay tuned.

 

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Posted in: health care,individual mandate,judicial review,Law Blogger,Law Professor Robert Sedler,lawyer,SCOTUS,Solicitor General,Wayne State University Law School

Prescription Privacy Rights

When we fill a prescription, most of us believe that action, along with our identity, is private. In fact, the name and dosage of the drug, the prescribing physician, and your own name and social security number become a commodity bought and sold in the medical data-mining industry.

A little-known provision buried in February's federal stimulus legislation, however, now requires pharmacy benefit managers, bankers, and medical claim processors to comply with Federal privacy and security regs. The new law is being fitted with federal regulations designed to give private rights some teeth; and violations a real bite.

Both Walgreens and CVS have been defending recent litigation claiming violations of patients' rights to privacy relative to their medical prescriptions. These corporate defendants have asserted that the information sold either has been encrypted or "de-identified"; a process where the patient's name is removed from the rest of the data.

In addition, the data-mining industry asserts that de-identified health data is critical for medical as well as for quality assurance measures such as tracking the side effects of drugs. The problem is manifest when computer-savy lawbreakers "re-identify" the data by cross-referencing several databases to link one's identity to one's roster of prescriptions. Once repackaged in this manner, the data becomes a valuable commodity in the medical data industry.

Another portion of the stimulus package of note to this post is the $20 billion incentive for physicians to digitize their records over the next five-years. Companies such as Google, Microsoft and WebMD all stand to gain from the information processing aspects of this digital push. Both WebMD and Microsoft acknowledge that the new Federal privacy rules apply to their companies. Google asserts, on the other hand, that its users are subject only to their privacy policy which is agreed to as a precondition to logging on.

Thus, the stage is set for a clash between the proponents of national medical database digitization and our basic right to privacy. The recent high-profile case of Farah Fawcett brought attention to the problem posed by data thieves. Ms Fawcett's cancer treatment records were illegally obtained and sold to the media.
While the digitization and transfer of data are now crucial to the health industry, strict privacy safeguards are needed. The question is, will they be enforced?

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Posted in: CVS,health care,prescription,privacy,stimulus legislation,Walgreens