presented by joanna fawzy morales, esq....presented by joanna fawzy morales, esq. ceo, navigating...

©Cancer and Careers, 2012©Cancer and Careers, 2012

Presented by Joanna Fawzy Morales, Esq.CEO, Navigating Cancer SurvivorshipPrincipal, North Star Alliances

Phone 424.258.4NAV Fax 424.258.7064Email [email protected] www.NavigatingCancerSurvivorship.orgThis publication is designed to provide general information on the topics presented. It is provided with the understanding that the author is not engaged in rendering any legal or professional services by its publication or distribution. Although these materials were reviewed by a professional, they should not be used as a substitute for professional services. © 2012 Navigating Cancer Survivorship

LEGAL ISSUES & HEALTH INSURANCE

©Cancer and Careers, 2012

o Chris is 24 and is a young adult cancer survivor. He is very excited about graduating in a few weeks from college.

o Chris has completed treatment, but he is still having some trouble with mild depression and fatigue, anxiety, and memory problems, so he was taking a lighter load each semester, setting back his graduation date.

o He is ready to start looking for a job and is concerned about how to enter the job market with a history of cancer and his ongoing health issues.

o He is wondering if he has to disclose his medical history and if people will still hire him if he does.

o What options does Chris have?

CHRIS


Federal Americans with Disabilities Act (ADA)o Discrimination protections for patients and caregiverso Reasonable Accommodations for patients

State Fair Employment Lawso Discrimination protections for patients and caregiverso Reasonable Accommodations for patients

Employer Policieso Employee Manualo Employment Contracto Independent Contractor’s Contracto Union Contract

EMPLOYMENT LAWS


Eligibilityo Private employers with 15 or more employeeso Be a “qualified individual”o Have a disability under the ADA’s definition:

- “A physical or mental impairment that substantially limits one or more major life activities”

- Major life activities: eating, breathing, walking, talking- ADA Amendments: concentrating, thinking, sleeping, operation

of major bodily functions

AMERICANS WITH DISABILITIES ACT


3 ways to use the ADA:1) Currently 2) History 3) Regarded

Benefits of the ADA:o Protection from Discriminationo Reasonable Accommodations

AMERICANS WITH DISABILITIES ACT


Generally, not required, but . . .o Need to disclose to use ADA’s protectionso Need to disclose to use reasonable accommodationso Need to disclose to use medical leaveo Does disclosure mean sharing a diagnosis?

If you decide to disclose, employers or prospective employers can only ask:

o Can you perform essential functions of the job?o How will you perform essential functions of the job?

DISCLOSURE RIGHTS


What are Reasonable Accommodations?o Adjusting your work spaceo Changing your work schedule

- Telecommuting- Rest breaks- Flexible schedule- An extended period of leave

o Use of technology

REASONABLE ACCOMMODATIONS


o When do you ask?o How do you ask?o Who do you ask?o Is your request confidential?o What is the interactive process?

- Job Accommodation Network: www.AskJan.org

REASONABLE ACCOMMODATIONS


1. Define the situationo Essential functions of the job?

2. Perform needs assessmento Modify job, policy, facility, equipment?

3. Explore alternative placement optionso Reassignment to vacant position?

4. Redefine the situation5. Monitor accommodations

REASONABLE ACCOMMODATIONS"INTERACTIVE PROCESS"


Disclosureo If, when, and howo Required for use of ADA protections

Reasonable Accommodation Requestso If, when, and how

Medical Examso If, when, and how

JOB APPLICANTS


o What can you be asked?o What can’t you be asked?o What do you do when they ask you something

they shouldn’t?o How do you share your medical information if

you want to?o What should you be aware of if you do?

APPLICATIONS & INTERVIEWS


o Similar to ADAo Can be more protective

o Broader definition of disability- Ex: CA, IA, IL, NY, WA, WI

o Specifically list cancer as a disability- Ex: CA, ME, OH, VT

o Cover employers with fewer than 15 employees

STATE FAIR EMPLOYMENT LAWS


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COWY

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AR (but 15 for RA’s)

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STATE FAIR EMPLOYMENT LAWSEMPLOYER SIZE


o Jason is 43 and has been diagnosed with cancer.o Jason has been an executive at a bank in CA for 3 years and often

works 80+ hours a week. He often comes home for dinner with his family and then works late at night from his home office.

o The bank branch where he works has 22 employees, but there are two other branches in town, one with 18 employees and one with 20.

o Jason doesn’t know yet, but thinks he will need to take time off work for treatment.

o However, he is worried about losing his job. He has lots of vacation time and about 20 hours of sick time. He is also thinking about asking if he can work from home.

o What are his options?

JASON


Federal Family & Medical Leave Act (FMLA)o Up to 12 weeks of unpaid, job-protected, health

insurance protected leave, per yearo For patients and caregiverso Eligibility:

- Employee: 1250 hours, 12 months- Employer: private 50+ employees (75 miles) & all govt

employer (fed, state, local)

TAKING TIME OFF WORK


FMLA Tipso Can be used in segmentso Deciding the year periodo Can work with the ADAo Employers can require use of PTO, vacation, & sick leave o Asking for FMLA & giving notice

- Foreseeable v. unforseeable



State Paid Leave for Caregiverso Ex: California & New Jerseyo Ex: WA – but only to care for a child



o Alex’s daughter has cancer. He works at a large company and would like to take time off work, but his employer said this is a “bad time.”

o When Alex asked about taking FMLA leave, the employer gave him a large stack of paperwork to fill out. Included in the stack of papers was a document that Alex include the contact information for his daughter’s physician and a release form to allow the employer to get a copy of his daughter’s medical record.

o Alex is not only a private person and has not shared what his family is going through at work, but his daughter has a hereditary cancer and Alex is concerned about sharing her diagnosis with his employer.

o What are Alex’s options?

ALEX


Employers entitled to medical certification for RA’s & FMLABut diagnosis may not be required!!

o Patients should talk to their healthcare team!!

Be careful of forms and state lawsEmployers CANNOT:

o Ask for copies of medical recordso Contact the health care provider for additional information

- FMLA: Only to “authenticate” and “clarify”- ADA: Maybe not w/o employee’s permission

ADA v. FMLA

MEDICAL CERTIFICATION


o Name, address, phone #, and fax # of health care provider

o Health care provider's type of practice/specialization

o Approximate date health condition began and how long it will probably last

o Description of serious health condition sufficient to support the need for FMLA leave

- E.g., symptoms, diagnosis, doctor visits, medications, continuing treatment, etc.

o “Sufficient documentation” to substantiate that employee has a disability under the ADA and needs the requested accommodation

o “Sufficient” = Describes: - nature, severity, and duration of

impairment,

- activity the impairment limits,

- extent to which the impairment limits the ability to perform the activity or activities, and

- shows why a reasonable accommodation is needed

WHAT CAN AN EMPLOYER ASK FOR?FMLA v/s ADA


US DOL: FMLA CERTIFICATION OF HEALTH CARE PROVIDER FOR FAMILY MEMER'S SERIOUS HEATH CONDITION


HEALTH CARE PROVIDER SECTION


Contact the U.S. Equal Employment Opportunity Commission o EEOC.govContact the State Fair Employment AgencyContact the U.S. Department of Laboro DOL.gov/WHDContact the Job Accommodation Networko AskJan.orgSpeak with an Employment Attorneyo NCLSN.org or LawHelp.org

QUESTIONS ABOUT WORKPLACE RIGHTS


Disability Insuranceo Private Disability Insurance

- Purchase through employer- Purchase directly from company

o State Disability Insurance- CA, NY, NJ, RI, HI, and PR

INCOME OPTIONS


Federal Disability Insuranceo Social Security Administrationo Long-term disability insurance programs

- Social Security Disability Insurance (SSDI)o Work historyo Tied to Medicare

- Supplemental Security Income (SSI)o Income/assetso Tied to Medicaid

INCOME OPTIONS


Payments are based on work historyo Worked and paid into the system 5 of the last 10 years

(if older than 31)o Check your Social Security Statement

Show why you can’t worko Work with your health care teamo Talk about your job responsibilities

Compassionate Allowances

TIPS FOR SSDI & SSI

©Cancer and Careers, 2012©Cancer and Careers, 2012

o Acute Leukemiao Adrenal Cancer - distant metastases or

inoperable, unresectable or recurrento Anaplastic Adrenal Cancer - distant

metastases or inoperable, unresectable or recurrent

o Astrocytoma - Grade III and IV (Brain)o Bladder Cancer - distant metastases or

inoperable or unresectableo Bone Cancer - distant metastases or

inoperable or unresectableo Breast Cancer - distant metastases or

inoperable or unresectableo Chronic Myelogenous Leukemia (CML) - Blast

Phaseo Ependymoblastoma (Child Brain Tumor)o Esophageal Cancero Gallbladder Cancero Glioblastoma Multiforme (Brain Tumor)o Head and Neck Cancers - distant metastasis

or inoperable or uresectableo Inflammatory Breast Cancer (IBC)o Kidney Cancer - inoperable or unresectableo Large Intestine Cancer - distant metastasis or

inoperable, unresectable or recurrent

o Liver Cancero Mantle Cell Lymphoma (MCL)o Non-Small Cell Lung Cancer - metastases to or

beyond the hilar nodes or inoperable, unresectable or recurrent

o Ovarian Cancer - distant metastases or inoperable or unresectable

o Pancreatic Cancero Peritoneal Mesotheliomao Pleural Mesotheliomao Salivary Tumorso Small Cell Cancer (of Large Intestine, Ovary,

Prostate, or Uterus)o Small Cell Lung Cancero Small Intestine Cancer - distant metastases or

inoperable, unresectable or recurrento Stomach Cancer - distant metastases or inoperable,

unresectable or recurrento Thyroid Cancero Ureter Cancer - distant metastases or

inoperable, unresectable or recurrent

COMPASSIONATE ALLOWANCES


o Many applications are initially deniedo Must appeal in writing within 60 days of receiving

denial letter (5 days after date on the letter)o 4 Levels of Appeal:

- Request for Reconsideration- Hearing by an Administrative Law Judge

o Applications who appeal to this level have a much better chance of getting their claim approved

o Consider representation

- Review by the Appeals Council- Federal Court Review

SSDI APPEALS


HEALTH INSURANCE OPTIONS

HEALTH INSURANCE OPTIONS


o Maria is 38 years old and is currently receiving cancer treatment. She has insurance coverage through her health insurance plan at work.

o Maria was told last month that she is going to be laid off next month. She has a job lined up to start in a few weeks, but it is only part time, so she is not eligible for benefits.

o She was told that it might become full time after 6 months and then she would have health insurance coverage.

o What are Maria’s options now?o Is there anything that she should be concerned about if the job

becomes full time?

MARIA


WWW.HEALTHCARE.GOV


1. Which best describes you?o Family / Children o Healthy Individual o Individual with Medical Condition o Pregnant Woman o Person with Disability o Senior o Young Adult (under 26) o Small Employer / Self-Employed

2. Which best fits your situation?o I'm losing the health insurance I had through worko I've tried to get health insurance, but I was rejected for

coverage because of my medical conditiono I need health insurance

ANSWER 5 QUESTIONS


3. How old are you?o 18 or undero 19-25o 26-64o 65 or older

4. Do any of the following apply to you? (check all that apply)o Disabilityo Breast or cervical cancero Dependent under 21o Nursing home or long term careo Special healthcare needo Pregnancyo Veteran statuso American Indian or Alaskan Native

5. Do you find it difficult to find health insurance?

ANSWER 5 QUESTIONS


YOUR OPTIONS


COBRAo Job-locko Employer-sponsored health insuranceo Employers with 20+ employeeso Length depends on qualifying evento Cost up to 102% of applicable employee rate

State COBRAConversion

EMPLOYER-SPONSORED HEALTH INSURANCE


COBRA QUALIFYING EVENT MAXIMUM COBRA COVERAGE

Employment ends or hours reduced

18 months

Loss of dependent child status 36 months

Employee enrolls in Medicare 36 months

Divorce or legal separation 36 months

Death of employee 36 months

WHEN TO USE COBRA


o Employee doesn’t pay premiums o Employee becomes eligible for Medicareo Employee commits fraudo Employer stops offering a health plan to all

employeeso Employer goes out of business

WHEN COBRA ENDS EARLY


o Reduces job-locko Prohibits discrimination based on pre-

existing medical conditions o Applies when moving from:

- Group to group - COBRA to a HIPAA plan

o 63 DAYS

HEALTH INSURANCE PORTABLITY & ACCOUNTABILITY ACT (HIPPA)


1. HIPAA Guarantee Issue Plano 3 options for plans, depending on the state:

- Every insurance company that writes individual policies in that state, must offer a HIPAA plan

- Conversion - State’s high risk pool

o Eligible:- Exhaust COBRA or State COBRA - Can’t get a group plan, Medicare, or Medicaid

- No gap more than 63 days

WHEN COBRA ENDS


2. Pre-existing condition exclusion period (PECEP)o Denial of coverage for a period of timeo Group plans can’t deny employees insurance, but they can

impose a PECEPo PECEP = 12 months maximum

- Some states less, for example: CAo 1-2 employees = up to 12 months

o 3+ employees = up to 6 months

o Look back = 6 months o PECEP runs concurrently w/ waiting

period for benefits

WHEN HANGING INSURANCE PLANS


3. Creditable Coverage: o Almost any type of comprehensive health insurance

o Except some student health insurance plans

o Goes with you from one health insurance plan to another

o Reduces or eliminates a PECEP imposed by a new group plan

o No gap in coverage more than 63 days

REDUCING OR ELIMINATING PRE-EXISTING CONDITION EXCLUSIONS


Example #1:

Your patient had health insurance through his employer for 8 months while at a previous job. Your patient is changing jobs and the new employer group health plan is imposing a pre-existing condition exclusion period (PECEP) of 12 months.

12 month PECEP imposed by new group health plan –

8 months of prior creditable coverage =

only 4 months left of a PCEP

Therefore, your patient will only have a 4 month exclusion period.

HOW TO USE CREDITABLE COVERAGE


Example #2: Your patient had health insurance through her employer for 12 months while at a previous job. Your patient is changing jobs and the new employer group health plan is imposing a pre-existing condition exclusion period (PECEP) of 12 months.

12 month PECEP imposed by new group health plan –

12 months of prior creditable coverage =

0 months left of a PCEP

Therefore, your patient will not have an exclusion period.

HOW TO USE CREDITABLE COVERAGE


o Mike is 54, lives in TX, and was just diagnosed with cancer.

o He has a job, but it does not have health insurance coverage.

o He has been uninsured for 2 years and knows that he has a few years before he can be eligible for Medicare.

o What are his health insurance options?

MIKE


o AKA: Major risk insurance planso For people who are unable to get individual health

insuranceo Not available in every stateo Plans are different in each state:

- TX: Health Insurance Risk Pool - CA: Major Risk Medical Insurance Program

o Can be annual caps, lifetime maximums, & waiting listso To find plans in your state:

www.HealthCare.gov

HIGH RISK INSURANCE POOLS


o Patient Protection & Affordable Care Act (PPACA)- Health care reform

o Eligible:- U.S. Citizens or lawful resident; and- Have a pre-existing illness or condition; and- No creditable coverage for 6 months

o Premiums, deductibles, co-pays, etc. varyo Annual out of pocket costs capped at $6,050 (in network)o www.pcip.gov

PRE-EXISTING CONDITION INSURANCE PLANS (PCIP)


PATIENT PROTECTION & AFFORDABLE CARE ACT (ACA)


o Children under 19 can no longer be denied health insurance coverage- Adults have to wait until 1/1/14

o Children & young adults can stay on their parent’s plan until age 26- Ex: 2.5 million more young adults have insurance

- Not dependent on IRS on full time student status

- Can even be married!

PATIENT PROTECTION & AFFORDABLE CARE ACT


oPreventative care- No co-payments, no deductibles for many plans

oNo lifetime limits on coverageoRegulates annual limits on coverageoNo rescissionsoSmall business tax credits

- Ex: 2 million workers get their insurance from an estimated 360,000 small employers who received the credit in 2011



In 2014 and beyond:o Elimination of Medicare Part D prescription drug donut holeo Individual mandate

- Exceptions for religious or affordability reasons

- Provides subsidies based on income level (up to 400% FPL) to offset costs

o State Health Insurance Exchanges- Standardized plans:

bronze, silver, gold, platinum, catastrophic

51



U.S. Supreme Court heard oral arguments March 26-28, 2012, on constitutionality of certain provisions in the ACA

4 issues:1. Can the SC even hear this case before 2015?2. Did Congress overstep authority by creating the individual

mandate?3. Is the individual mandate “severable” from the rest of the ACA?4. Did Congress overstep authority by requiring states to expand

Medicaid?

LEGAL CHALLENGES TO THE ACA


What if the Supreme Court strikes down the individual mandate?

5 possibilities:1.SC to review ACA provision by provision2.Appoint a special master under SC supervision3.SC remand back to 11th Circuit Court of Appeals4.Appeals Court remand back to District Court5.SC could declare mandate unconstitutional, then order

Congress to pass legislation to replace it, staying its order in the meantime

LEGAL CHALLENGES TO THE ACA


2012 is an election year!

o Change in presidency?o Change in membership of Congress?o New Congress repeals any part or all of ACA?o New Congress or presidential administration defunds

part or all of ACA?o New presidential administration chooses not to enforce

certain ACA provisions at the agency level? o States refuse to implement ACA?

55

LEGISLATIVE CHALLENGES TO THE ACA


ADDITIONAL INFORMATION


o HIPP programo IHSS (for caregivers)o Private programs

- Patient Services, Inc.

o Cancer organizations- Cancer Care- American Cancer Society- Leukemia and Lymphoma Society- The Pink Fund- The SAM Fund

FINANCIAL ASSISTANCE OPTIONS


o Clinical trialso Insurance coverage of treatmento Insurance appealso Drug shortageso Estate planningo Consumer rightso Insurance coverage for fertility preservation and infertilityo Medical decision makingo Access to pain management and palliative careo Insurance coverage for long-term or hospice careo Genetic testing and discrimination

OTHER CANCER-RELATED LEGAL ISSUES


Legal Assistance:o National Cancer Legal Services Network www.NCSLN.orgo LawHelp www.lawhelp.org

Employment Rights:o Equal Employment Opportunity Commission www.EEOC.govo Job Accommodation Network www.AskJan.orgo U.S. Department of Labor www.dol.gov/ebsa

Disability Insurance Options:o Social Security Administration: www.SSA.gov

Health Insurance Options:o www.HealthCare.govo www.PCIP.gov

RESOURCES


Joanna L. Fawzy Morales, Esq.

Email: [email protected]

Website: www.NavigatingCancerSurvivorship.org

LinkedIn: www.LinkedIn.com/in/CancerRights

Twitter: @CancerRights

CONTACT INFORMATION

presented by joanna fawzy morales, esq....presented by joanna fawzy morales, esq. ceo, navigating...

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