Employer strategies for modifying or terminating retiree benefits in the 1990s

Over the past decade, access to health care coverage has become a crucial national concern. At the same time, the rising cost of health care, the aging of the population, and new accounting requirements for retiree medical benefits have caused employers to reevaluate their commitment to providing unrestricted health care benefits to the retirees. This article discusses the key federal appellate court decisions concerning an employer's decision to modify or terminate retiree medical benefits. It then explores alternatives for meeting the statutory, legal, and accounting challenges faced by employers who now offer retiree health care coverage.     

Age Discrimination in Employment Act; retiree health benefits. Final rule

The Equal Employment Opportunity Commission is publishing this final rule so that employers may create, adopt, and maintain a wide range of retiree health plan designs, such as Medicare bridge plans and Medicare wrap-around plans, without violating the Age Discrimination in Employment Act of 1967 (ADEA). To address concerns that the ADEA may be construed to create an incentive for employers to eliminate or reduce retiree health benefits, EEOC is creating a narrow exemption from the prohibitions of the ADEA for the practice of coordinating employer-sponsored retiree health benefits with eligibility for Medicare or a comparable State health benefits program. The rule does not otherwise affect an employer's ability to offer health or other employment benefits to retirees, consistent with the law.     

Retiree health and welfare benefits: controversy over their duration

As the cost of providing health-care benefits skyrockets, employers have begun to reduce or even to terminate health-care and life insurance benefits for retirees, often with little awareness of the possible repercussions. Retiree groups and unions have countered these actions with claims based on such theories as the "status benefits" argument--that retirement benefits should be viewed as earned compensation for years of service--or the "vested rights" view--that retirement rights may not be altered without the pensioner's consent. Crucial to these conflicts are the terms of the collective bargaining agreement. Case law indicates that employers can never feel themselves fully protected even if the agreement contains provisions explicitly stating the benefits' scope and duration. The authors demonstrate this point in their review of recent retiree benefits cases. They then explore in detail the problem of contract and document ambiguity, and offer guidelines for ascertaining intent. They conclude with a discussion of strategies for litigating retiree benefits cases.     

Genetic discrimination: the use of genetically based diagnostic and prognostic tests by employers and insurers

Genetic discrimination is detrimental to public health programs, as well as to society generally. Advances in genetic testing and screening, accelerated and prompted by the Human Genome Initiative, increase society's ability to detect and monitor chromosomal differences. These technologies and their resulting genomic data will enhance medical science, but may also encourage discrimination. Although few employers or insurers currently utilize genetic screening, testing or data, rising employee benefit costs and market forces create powerful incentives for usage. Current municipal, state and federal laws, including the Americans with Disabilities Act (ADA), may not sufficiently protect employees and insureds from genetic discrimination. While municipal and state protections should not be overlooked, the ADA's sweeping scope may currently provide the most comprehensive safeguard. Federal laws banning discrimination on the basis of race or sex might also successfully redress some forms of genetic discrimination. Genetic technologies' advent necessitates efforts to rectify state and federal statutory coverage gaps, strictly regulate employers and produce comprehensive guidelines regarding its use.     

The struggle over retiree medical benefits: who's on top?

Over the past decade, there has been an explosion of litigation addressing an employer's right to unilaterally amend or terminate medical benefits provided to retirees. The sheer volume of these cases and the variety of facts and legal theories have combined to obscure the patterns and trends that actually are emerging from this litigation. This article will describe the context of the struggle over retiree benefits and discuss those leading decisions in which the federal courts of appeals have established their rules for deciding retiree benefits cases.     

Compensation: problems with the concept of disability and the use of American Medical Association Guides

The Western Australia Liberal Government made radical changes to the Workers Compensation and Rehabilitation Act 1981 (WA) in 1993. One of the significant changes was the greater application of the American Medical Association Guides to the assessment of permanent injury. In 1999 further amendments to the same legislation required the application of the Guides to workers who wished to proceed with common law claims for negligence against their employers. Recent cases have shown the difficult in reconciling the language of the law with commonly used medical terms. This article surveys the use of the American Medical Association Guides in compensation legislation in Australia with some specific comments on the Western Australian system. It makes some suggestions for reform of the Western Australian system.     

Biological monitoring: the employer's dilemma

The industrial workplace contains many potential health hazards that not only can cause great harm to workers, but also can destroy the employers' economic stability. Often these hazards are documented and dealth with, but frequently they are unknown. When health-conscious employers monitor the physical well-being of their employees in an effort to avoid the terrible personal and economic costs these hazards can produce, they may be supplying their employees with the documentation necessary to recover financially for their industrial illnesses. This Article analyzes this dilemma confronting employers. It describes the many factors employers must consider when deciding whether to institute a monitoring process that takes full advantage of technological developments in medical care. The Article suggests an approach employers may take until some of the disincentives surrounding the implementation of monitoring are removed.     

Legal medicine and the medical establishment

Formal medical discipline-based regulation and professional support for legal medicine practitioners have been a long time coming. While informal associations and societies of like-minded doctors and dentists have existed for some time, they have not had the sort of "establishment credibility" that is required to influence policy-makers and drive formal processes for professional training and regulation in this area. The recent creation of formal medical College status for medico-legal specialists within the medical establishment is described and the advantages discussed. The creation of formal career pathways, organised training structures and policy advisory systems in legal medicine for government has the potential to support recruitment to this difficult and challenging area of medical practice. This can only be of benefit to the legal profession who rely on these medical practitioners in so many areas. The standards setting, recertification, revalidation and accreditation activities of a formal Royal Medical College are likely to have significant influence on the work of health and legal policy regulators at a time of considerable change.     

Data Analytics and the Erosion of the Work/Nonwork Divide

Numerous statutes and common law doctrines conceive of a dividing line between work time and nonwork time and delineate the activities that must be compensated as work. While technological innovations and increasing desires for workplace flexibility have begun to erode this divide, it persists, in part, because of the ways in which the division protects employers and employees alike. Nonetheless, the explosion of data analytics programs that allow employers to monitor and rely upon a worker's off‐duty conduct will soon weaken the dividing line between work and nonwork in dramatically greater and more troubling ways than ever before. The emergence of programs allowing employers to track, predict, rely upon, and possibly control nonwork activities, views, preferences, and emotions represents a major blurring of the line between work and nonwork. This article contends that these advances in data analytics suggest a need to reexamine the notion of work versus nonwork time and to question whether existing protections adequately consider a world in which these lines are so significantly muddled. As a society, we need to acknowledge the implications of the availability of massive quantities of employees’ off‐duty data and to decide whether and how to regulate its use by employers. Whether we, as a society, decide to allow market forces to dictate acceptable employer behavior, choose to regulate and restrict the use of off‐duty data for adverse employment decisions, or find some middle ground that requires disclosure and consent, we should choose our own course rather than allowing the technology to be the guide.     

Medicare program; changes to maintenance of effort requirements (section 421 of the Medicare Catastrophic Coverage Act)--HCFA. Notice

This notice announces the effect on employers of the repeal of section 421 (Maintenance of Effort Provision) of the Medicare Catastrophic Coverage Act of 1988 (MCCA). The enactment of Public Law 101-234 (Medicare Catastrophic Coverage Repeal Act of 1989) on December 13, 1989 repealed many of the provisions of MCCA and restored the Medicare benefit levels to those available prior to January 1, 1989. Consequently, employers are relieved of their Maintenance of Effort responsibilities effective January 1, 1990.     

Legal recourse for the cancer patient-returnee: the Rehabilitation Act of 1973

Recent advances in medical research have dramatically improved the survival rate for individuals with a history of cancer. Large numbers of these "cancer patient-returnees" encounter job discrimination since many employers believe that to hire or maintain them would pose substantial future business risks. This Note argues that cancer patient-returnees may seek relief under the Rehabilitation Act of 1973. The Note concludes that an employer's costs arising out of future risks are too insignificant to justify denial of job opportunities to cancer patient-returnees under the Act.     

医德重建：传统医德危机及其解决途径探析

目前,我国面临的医德危机是非常严重的。如何解决这一危机就成了一个不容回避的重大课题,不少学者提出要用传统医德来规范医务人员,并以此作为解决该危机的良方。然而,这种以人格伦理为特质的传统医德尽管有其一定的合理性,但其在实践中的有效性却受到了人们的质疑。本文试图从传统医德自身的局限性、医务人员利益意识的觉醒以及因社会失范而导致的越轨三个方面来分析我国医德危机产生的根源,并为此提出了三条对策。     

Age discrimination in retirement: in search of an alternative

American employers have traditionally relied on age as the criterion for mandatory retirement. Yet advances in medicine indicate the inadequacy of age as a measure of job competence and suggest the potential for a more reliable measure. With current social and economic conditions pressing many employees to seek to work beyond mandatory retirement ages set by their employers, transition to more reliable measures has become a vital matter. This Note explores the potential for implementing medically-based alternatives to the age proxy. It initially addresses problems of medical feasibility and economic practicality, and considers how the divergent interests of employees and employers can be accommodated. The balance of the Note examines the present roles of Congress, agencies, and courts in facilitating age-blind mandatory retirement policy. It suggests the need for reform of the federal Age Discrimination in Employment Act and recommends a more effective distribution of roles among governmental institutions.     

The politics of organ transplantation: a parable of our time

This paper reviews the historical development of federal government policy for kidney, heart, and liver transplantation. It examines several political dimensions of whole organ transplantation: the role of the print and broadcast media; the management of organ procurement; the certification of transplant centers; the evaluation of new surgical procedures; and the issues of financing, distributive justice, and rationing of scarce medical resources. The author finds that the media, though powerful in affecting transplant policy, have not been subjected to critical analysis. Organ procurement modifications, driven by a need orientation toward closing the gap between actual and desired levels of performance, may have adversely affected performance. The case of liver transplantation suggests the need for improved institutions and mechanisms for evaluating new surgical procedures. Finally, states that confront the need to meet a binding budget-balancing requirement may allocate funds away from expensive medical procedures that benefit the few toward basic services that benefit the many; the Oregon and Virginia Medicaid programs exemplify this point.     

The health of health practitioners: remedial programs, regulation and the spectre of the law

The past two decades have seen an emerging awareness by regulators and some of the health professions about the phenomenon of the impaired practitioner. One response, particularly from the medical profession, has been to design various models of health programs principally to cater to psychiatrically unwell and substance dependent practitioners. However, the health conditions of practitioners are more diverse than these categories, particularly in the era of a stressed and ageing health care workforce. The potential exists for practitioners, their treaters and employers to be legally liable for foreseeable risks posed to patients and clients by practitioners whose health is problematic and/or deteriorating. There is much to be said for practitioners, health service administrators, educators and regulators dealing more effectively with all categories of impaired practitioners before the intervention of the civil law which may not be adequately informed or sophisticated and is most unlikely to be collaborative in its approach.     

论我国医疗损害技术鉴定制度构建

《侵权责任法》仍未解决我国医疗鉴定体制的二元化问题。医学会医疗事故技术鉴定和法医医疗损害司法鉴定两种模式各有利弊,法医鉴定模式并不比医学会鉴定模式优越。在专业技术问题的判断上,日本、德国、荷兰、美国的医疗损害鉴定模式都采同行评价的原则。构建我国医疗损害技术鉴定制度应坚持充分利用现有鉴定资源、尽可能融合当前两种鉴定的优点、法律问题与技术问题分离的宏观理念,并坚持公开、救济、辩论、鉴定专家半职业化、鉴定方法科学和法律指导的基本原则。在制度的具体构建上,鉴定名称应选择医疗损害鉴定或医疗损害技术鉴定;新的鉴定机构应在现有医学会医疗事故技术鉴定机构的基础上组建,并要求法医专家参与,调整鉴定专家来源、专家鉴定组和鉴定专家库组成,完善鉴定程序,确定鉴定理论、鉴定方法,明确鉴定原则,扩充医疗损害技术鉴定的内容;也可以借鉴日本的鉴定模式,由医学会建立专家库,由法院启动、组织鉴定。     

Income and employment taxes; self-insured medical reimbursement plans--Internal Revenue Service. Final regulations

This document contains final regulations relating to self-insured medical reimbursement plans and the withholding of income tax under these plans. Changes to the applicable law were made by the Revenue Act of 1978 and the Technical Corrections Act of 1979. These regulations provide necessary guidance to the public for compliance with the law and affect both employers who maintain self-insured medical reimbursement plans and certain employees who receive medical benefits under these plans.     

Minimizing employee benefits litigation through effective claims administration procedures

With the marked increase in employee benefits litigation, employers and benefit plan sponsors are searching for ways to avoid such lawsuits, minimize their exposure in such lawsuits, and maximize their ability of prevailing in such lawsuits. Benefit claim processing and administration have become fertile areas for lawsuits. Consequently, improving benefit claim processing and administration obviously becomes important, and an area where affirmative actions by the employer and plan sponsor will produce many litigation-related benefits. This article will discuss, in a very simple and straightforward manner, various actions an employer or plan sponsor can take which will decrease the number of lawsuits, minimize the potential exposure if a lawsuit is filed, and maximize the ability of prevailing if a lawsuit is filed.