Cancer, the Law and You
Barbara Ullman Schwerin, Esq., Director of the Cancer Legal Resource Center, a joint program of the Western Law Center for Disability Rights and Loyola Law School
There are many different laws in place that offer protection regarding employment, health insurance and disability. There are also many resources available. Knowing these resources and becoming educated may help you to prevent problems and avoid the need for legal assistance. Educating yourself about the laws and your rights can empower you.
The Cancer Legal Resource Center (CLRC) is a resource for patients and family members to get information on cancer-related legal issues. It is based on an education model rather than a litigation model. The Center is staffed primarily by law school students who are supervised by attorneys and most interventions are telephone-based. They do not provide legal advice or services, but rather help people resolve issues with information. They have a volunteer panel of attorneys and other professionals who specialize in different areas of the law and provide additional information when needed.
This article serves to introduce patients and families to some of the laws that are in place at federal and state levels as well as to provide guidance related to health insurance information.
PROTECTION FOR INDIVIDUALS WITH DISABILITIES
The Americans with Disabilities Act (ADA)
The ADA is a federal law. Its goal was to level the playing field for people with disabilities by ensuring equal opportunity for employment. The law applies to a "qualified individual with a disability." A "qualified individual" is someone who can perform the essential functions of the job with or without a reasonable accommodation. "Disabled" is defined as (1) a physical or mental impairment that substantially impacts a major life function such as walking, talking, breathing, caring for oneself, working, or completing the tasks of daily living; (2) being regarded as having an impairment; or (3) having a history of an impairment. The law also reviews the disability in its corrected (referred to as mitigated) state.
The ADA applies to employers with 15 or more employees and pertains to all phases of the employment process. The employer must provide "reasonable accommodations" provided that it does not create an undue hardship to the employer. Reasonable accommodations can include reassignment to a vacant position, light duty, flexible hours, or possibly an extended period of leave time. Caregivers may not get reasonable accommodations under this law such as leave time. Employees generally must initiate a request for a reasonable accommodation. Human resources often oversees the accommodation process. In addition, all requests for accommodation are confidential. The United States Supreme Court has cut back on what this law may provide for an individual. For example, state employees cannot sue for monetary damages against their state employer but they can sue for injunctive relief, such as getting their job back; local governments, however, may still be responsible for monetary damages.
The California Fair Employment and Housing Act (FEHA)
California has provided additional protective legislation for disabled persons over and above the ADA. The definition of disability is broader under FEHA than under the ADA; a disability needs to be a limitation in a major life function but it does not need to be substantial. Further, corrective (mitigating) measures are not considered unless the mitigating measure itself limits a major life activity. In addition, FEHA includes a clause related to cancer. "Medical condition" means any health impairment related to or associated with a diagnosis of cancer or a record or history of cancer. This provision in the law does not necessarily exist in other states. The California FEHA applies to employers with 5 or more employees.
What should you know about job searches after cancer?
Many people wonder how much they are obliged to disclose when interviewing for a new job. An employee does not need to disclose any information about their medical condition unless they need to request a reasonable accommodation. An employer cannot ask about the medical condition, but they can ask if the employee can perform the essential functions of the job with or without a reasonable accommodation. If an employee has a visible disability, the employer can ask prospective employees to demonstrate their ability to do the job.
Employers can ask employees to take medical examinations only if they require it for all employees entering that same position and make a conditional offer based on the employee passing the medical examination. The employer cannot rescind the offer unless the medical exam shows that the person cannot perform the essential functions of the job with or without a reasonable accommodation. It is important that prospective employees listen carefully to questions and answer them accurately. Misrepresenting information may be grounds for dismissal.
Family and Medical Leave Act (FMLA)
The Family and Medical Leave Act is a federal law that provides individuals with up to 12 weeks of unpaid medical leave in a year to care for a seriously ill spouse, parent or child, or for an employee's own serious medical condition. In California this law also applies to registered same sex domestic partners. This law applies to businesses with 50 or more employees. The leave is unpaid; however, it is job protected so that the employee returns to the same or an equivalent position. It also ensures that benefits remain intact with the same payment ratio regarding employee and employer share of costs. To be eligible under this act an employee must have been employed for one year and worked a minimum of 1,250 hours in that year. It is especially beneficial for patients with cancer because the leave time can be taken as needed or all at once. Patients may be eligible for 12 weeks under this law (FMLA) and then could possibly take an extended medical leave as a reasonable accommodation under the ADA or FEHA or the employer’s own medical leave policy.
Disability insurance provides some income for employees on leave for disability. The insurance may be provided through an employer, a private disability policy or through governmental disability benefits.
California State Disability Insurance (SDI)
If you have paid into SDI, or if you are self-employed and have elected to pay, you may be eligible to collect some disability payments. There is an eight-day waiting period and your doctor has to complete the “Doctor’s Certificate.” An SDI claim should be mailed within 49 days from the first day you are disabled. SDI is available for up to a maximum of one year.
California Family Temporary Disability Insurance (FTDI)
California is the only state that provides up to six weeks of wage replacement benefits to employees who take time off to care for a seriously ill child, spouse, parent, or domestic partner. Only 6 weeks of leave are covered in any 12-month period. FMLA leave time must be taken concurrently. An employer may require an employee to take up to 2 weeks of unused vacation prior to receipt of FTDI. FTDI does not provide job protection during the leave unless the employer is obligated under the FMLA or CFRA (California Family Rights Act) and the employee has met the FMLA requirements. In addition, continuation of health benefits is not provided unless the employee meets FMLA or CFRA criteria.
Social Security Disability Insurance (SSDI)
SSDI provides long-term disability benefits for individuals who are disabled (a physical or mental impairment expected to last 12 months or longer) and have a work history. Applications must be made at the Social Security Administration (SSA). The SSA qualifies you as disabled based on your doctor’s documentation of your condition in his/her records. It is very important that your doctor actually records relevant information on an ongoing basis. It is important for your physician to note in your chart the impairments that you have as a result of the cancer and its treatments. Qualification for benefits is based on your individual work history. To be eligible you generally must have made payments into Social Security for 40 quarters of work over a ten-year period. You will collect approximately the amount that you would get if you worked to age 65. Benefits are not paid until the sixth full month after the date your disability began. A person will be eligible for Medicare 24 months after becoming eligible for SSDI.
It can sometimes be difficult to be qualified as “disabled” and your application may be turned down. If this happens, first file a Request for Reconsideration. If you are denied again you can request an appeal before a judge. Getting an attorney to represent you can be helpful, but do not pay this attorney in advance out of your pocket. The attorney should accept a contingency fee that will be a percentage of your back payments paid if you win your appeal.
Supplemental Security Income (SSI)
SSI is designed for disabled people (a physical or mental impairment expected to last 12 months or longer and have a work history) and is based on low income and limited resources. A person who qualifies for SSI will generally be immediately eligible for Medicaid (Medi-Cal).
PROTECTING HEALTH INSURANCE BENEFITS AND RIGHTS
Many patients are concerned about their health insurance. There are some laws that help protect a patient's ability to keep his/her health insurance even though s/he may not be working or have left their job.
Consolidated Omnibus Budget Reconciliation Act (COBRA)
COBRA is a federal law that affords individuals the opportunity to keep their group health insurance coverage in situations where it might otherwise be lost. It applies to employers with 20 or more employees. Prior to January of 2003 COBRA could last for 18 months; however, it can generally now be used for up to 36 months. COBRA can cost up to 102% of the applicable employee rate. Many people are shocked when they find out the real cost of their group health insurance. They often do not realize how much their employers pay for the employees’ health insurance. When a family is faced with group health insurance loss and COBRA as the option, it may be a good time to look at all possibilities to see how the premiums might be reduced. For example, if an entire family was on the health insurance plan of the individual who is no longer working but needs to maintain their coverage, it may be more economical to move other people off the COBRA insurance and only insure the one individual. Children may be eligible for Medi-Cal or Healthy Families or can be moved to their own individual plan. Also, if another member of the family has access to group health insurance benefits, the entire family may be able to enroll on that person's insurance plan.
California has a program called Cal-COBRA. It is similar to COBRA; however, in California it applies to employers with 2-19 employees. It, too, could be used for up to 18 months until January of 2003, when it changed to 36 months. The cost is generally 110% of the applicable employee rate.
A third plan, Senior COBRA, is a California program that is being phased out. Senior COBRA is for people who are under 65 and do not yet qualify for Medicare. To qualify for Senior COBRA, you must be 60 years old or more when you elect COBRA or Cal-COBRA and have been employed at least five years for that employer. It allows COBRA or Cal-COBRA to be kept until age 65 when the employee is eligible for Medicare. It also allows the employee's spouse to be eligible for up to five years. It is not available after January 1, 2005 for new enrollees. They will be eligible for a HIPAA plan (see next section on “Guarantee Issues”).
Health Insurance Portability and Accountability Act of 1997 (HIPAA)
Some people who have had cancer feel locked into a job for fear of not being able to get health coverage due to pre-existing conditions. HIPAA was enacted to address this "job lock" and facilitate job change. This law does several things:
HIPAA allows people to receive “creditable coverage” for the time that they have had health insurance. This "creditable coverage" goes with the person from one employer's group health insurance to another. Second, it sets limits on the pre-existing condition exclusion. The maximum allowable period of time for a pre-existing condition is 12 months, although in California this period is usually 6 months. Finally, it sets a 6-month limit for how long an insurance company can "look back" to see if a pre-existing condition exclusion can be imposed. Once a person has had group health insurance for at least one year and maintains continuous group coverage, they generally should not have to meet another pre-existing exclusion period. If a new employer offers group health insurance and there is a waiting period, a person can use COBRA or Cal-COBRA coverage to maintain group health insurance during the waiting period, which maintains the necessary continuous coverage.
HIPAA includes a "Guarantee Issue" provision for the person who goes from group to individual coverage. It allows this change without having to go through "medical underwriting," which is where an insurance carrier can look at the individual's medical history. To utilize this aspect of the law, COBRA or Cal-COBRA must be exhausted, the person must be ineligible for Medi-Cal or Medicare, not eligible for other group coverage and apply no later than 63 days after the loss of coverage. While there are limits to the premium amounts, the coverage is often expensive. Also, the plans offered to people in this situation can vary from state to state. It may be helpful to talk to an independent insurance person to help identify appropriate options.
Women's Health and Cancer Rights Act of 1998 (WHCRA)
This act is a federal law that mandates that if a health insurance plan provides coverage for mastectomies it must also provide coverage for reconstructive surgery and surgery on the healthy breast to achieve symmetry if needed. It also must cover complications from mastectomies, including lymphedema. California already had similar protections.
GENERAL INFORMATION ABOUT HEALTH INSURANCE PLANS
There are a variety of different health insurance plans.
HMO: A Health Maintenance Organization usually costs less but has more restrictions. There are HMOs such as Kaiser, where all or most of the care is provided in one location or by doctors that are employed by one company.
IPAs: "Independent Physician Associations" are plans in which physicians and hospitals are part of an HMO network. Most often services are coordinated through a primary care physician and patients must select their care from physicians who are specified as part of this plan. Sometimes one's choices are limited, but the plans tend to cost less.
PPOs: "Preferred Provider Organizations" are usually large and have many health care providers and hospitals. Patients usually have more choice and can select from all of the participating providers. PPOs usually cost more, either by having larger co-payments or a higher percentage that is not covered.
POS: "Point of Service" plans are a cross between HMOs and PPOs. They usually allow a person to select within the network and have smaller co-payments or to choose from the larger group with a higher percentage of costs.
Whatever the health plan, a person is entering into a contract with the health insurance company. The summary of benefits and evidence of coverage (Book of Coverage) state what will and what will not be covered. If insurance is obtained through an employer, the employer establishes the contract with the health insurance plan on behalf of the employees. Their group contract applies when an individual employee signs up for coverage. It is important to examine the benefits and understand what the plan provides and what it excludes. If more than one option is offered, look at the costs, look at the benefits and examine the exclusions. Use this information to make informed decisions. Under HIPAA, people can leave one plan and enroll in another during open enrollment with their creditable coverage.
Medicare is available for individuals 65 years of age and older or those otherwise designated as disabled. At the time that someone becomes eligible for Medicare they have the option of using standard Medicare or selecting Medicare Advantage (a Medicare HMO), the new name for Medicare plus Choice.
Medicare Advantage uses specific doctors and hospitals and referrals to specialists are required. There may be an additional monthly premium beyond the Part B premium. There are usually set co-payments to see doctors. One of the advantages of Medicare Advantage was the prescription drug coverage. This is changing as a result of the new law.
Standard Medicare generally does not cover prescription drugs with the exception of some oral chemotherapy drugs. It does not cover custodial long-term care in the home or in a nursing facility. It does not cover dental care, vision or hearing care, routine checkups, shots or routine foot care.
"Medigap" policies cover expenses not covered by Medicare and are for those newly eligible for Medicare. You have the right to purchase these plans for six months after first signing up for Medicare Part B. There are a limited number of plans available. The premiums associated with them depend on the services covered.
The policies are referred to as J policies and should have the same types of coverage from different insurance companies, but the premiums may vary. The H, I and J policies have some prescription drug coverage. However, these will not be offered after 1/1/2006 for new enrollees. Open enrollment for Medigap policies begin on the first day of the month in which you are both age 65 and enrolled in Medicare Part B. During open enrollment an insurance company cannot deny you an insurance policy or charge you more for a policy because of past of present health problems. For information on Medigap use the following resources: www. Medicare.gov, HICAP 1-800-434-0222 or www.calmedicare.org.
For questions about Medicare, call 1-800-MEDICARE. Keep in mind these policies change, so always seek information from appropriate sources.
PRESCRIPTION DRUG COVERAGE THROUGH MEDICARE
& OTHER SOURCES
Starting January 1, 2006 a new Medicare prescription drug plan (Medicare D) will allow enrollees to choose a drug plan. The premium will be approximately $37 per month although this could go down if more people participate. There will be a $250 deductible. Medicare will pay 75% up to $2250 and the individual will pay 25%. Between $2250 and $5,100 (approximately $3600 out-of-pocket) the individual will be responsible for 100% of the costs. After the individual reaches $3600 in personal out of pocket expenses, Medicare will pay 95% of the drug costs.
There will be some financial assistance for people with limited incomes and Medicare will make determinations related to income limits. Patients who have Medicare and Medical (Medi/Medi) will automatically be moved to Part D Medicare coverage and will lose their MediCal drug coverage. Information will be made available through the mail and it is important to read the materials as there will be deadlines when people need to make choices.
Medi-Cal is available for individuals with low income and limited resources. You can apply at the local Social Security office if applying for SSI. Some people qualify for Medi-Cal through the Aged and Disabled Federal Poverty Level Program. Some Medi-Cal coverage has a “share of cost” component. Medi-Cal covers doctor’s visits, x-ray and lab test, hospital and nursing care as well as prescription drugs. To apply for Medi-Cal, contact the Department of Public Social Services.
Health Insurance Premium Payment Program (HIPP)
If you have health insurance coverage, cannot afford the premiums and are eligible for Medi-Cal you may qualify for HIPP. HIPP pays your insurance premiums to keep your private health insurance. For more information call 800- 952-5294 or 866 298-8443.
Major Risk Medical Insurance Plan (MRMIP)
MRMIP is partially funded through the state of California to residents who are unable to get individual health insurance. It offers limited health insurance. The individual must be ineligible for COBRA, Cal-COBRA and HIPAA. Qualified participants pay part of the premium which can be costly. The coverage is limited to 36 months then people can move to HIPAA’s “guarantee issue” plan.
Over the last few years, health care reform has led to some guidelines, which provide greater protection for consumers.
Recent health care legislation in California added coverage for routine patient costs involved in cancer clinical trials. An enrollee must be recommended for the clinical trial by their physician and the clinical trials generally must be approved by NIH (National Institute of Health), FDA (Food and Drug Administration), DoD (Department of Defense) or the VA (Veteran’s Administration). All four phases of clinical trials are included.
California expanded the availability of external review of health plan decisions. External review may be used for all decisions to deny, modify or delay treatment on the grounds that it is not medically necessary. It also states that the plan's literature must disclose the outside review process and how to access it. Before getting to an outside review an enrollee must exhaust the plan's internal grievance process by filing a formal grievance, having the decision upheld or having a grievance remain unresolved after 30 days (3 days for cases involving an imminent or serious threat to the patient). When these conditions are satisfied, a person can pursue outside review through the Department of Managed Health Care (DMHC). There are different rules for investigational or experimental denials, which do not require that the plan's grievance process be exhausted first.
The California Department of Managed Health Care (DMHC) oversees HMOs, Blue Cross and Blue Shield. It assists with complaints, provides independent and external review, and makes recommendations on consumer issues. They can be reached at www.dmhc.ca.gov (1-888-HMO-2219).
The California Office of the Patient Advocate works with DMHC to make sure Californians receive quality health care. They provide educational guides such as California’s HMO Guide and the HMO Report Card which rates HMO’s and medical groups. It ensures that the HMO Help Center provides quality care. It can be reached at 1 866-466-8900 or on the web at www.opa.ca.gov.
Health care service plans are required to provide a second medical opinion upon request by a patient or treating physician. It may be a second opinion from another qualified doctor in the same medical group. The law does not require that the medical plan provide the care that may be recommended by another doctor who provides the second opinion. If there is no qualified doctor within the plan, a doctor outside the network will be called in at the plan's expense. The patient is responsible only for any applicable co-payment. If there is an imminent or serious threat to the patient, it must be done within 72 hours.
One of the best ways to avoid problems is to be informed and prepared. It is also important to be responsible for your needs. Here is a list of ideas to incorporate into your care:
Communicate with health care providers about your needs. Ask the doctor to explain the reason for decisions that she/he is making.
Write down questions for your physician in advance so you are better prepared for the visit. If you have many questions, ask that the appointment be scheduled for a longer time so that your questions can be answered.
Write down the answers to your questions. Bring a family member to listen with a second set of ears or ask your health care provider if you may tape record the visit.
Maintain copies of your own medical records. Get a notebook and keep them organized.
When you communicate with your health plan, keep a written log of conversations. Note the name (first and last), date and position or title of the person who is giving you the information. Make sure that the person who is saying "no" also has the authority to say "yes."
Send all correspondence to your health plan by certified mail, return receipt requested or, if using a fax, get a fax receipt confirmation.
Enlist your doctor as an ally.
Try to establish a relationship with the claims manager assigned to your case. Get to know that person so that they understand you as a person. They are sometimes your best allies in getting through the system.
Review the grievance/appeal plan and understand the process.
For questions, contact:
Cancer Legal Resource Center
919 Albany Street
Los Angeles, CA 90015-1211
(213) 736-1455 main number
(213) 736-1428 facsimile
(219) 736-8310 (TTY)