Cancer-Related Employment and Insurance Issues: What all Patients and Caregivers Need to Know
About the Lecture
A cancer diagnosis can bring with it a myriad of legal, financials, and insurance issues. Navigating these issues can be complicated, overwhelming, and stressful. But it doesn’t have to be. This presentation identifies the most common cancer-related legal issues that arise for survivors and caregivers, including: health insurance and health care options; employment rights and taking time off work; and access to disability insurance and paid family leave benefits. Jen Flory explains the laws that protect people and provide access to benefits to help people navigate these cancer-related legal issues. She also covers the ways that the Affordable Care Act (health care reform) applies to people coping with cancer.
Jen Flory is the Director of the Cancer Legal Resource Center, a joint project of Disability Rights Law Center and Loyola Law School Los Angeles. Prior to joining CLRC, she was the Supervising Attorney of the Health Consumer Center at Neighborhood Legal Services of Los Angeles County where she supervised the center’s consumer assistance hotlines and the legal work of three Medical Legal Community Partnerships. Jen started her legal career as an advocate at Western Center on Law & Poverty, specializing in medical debt and preserving public benefits for low-income Californians. Jen has also worked as an immigration attorney in London and taught writing in community colleges. She is a graduate of USC Gould School of Law and holds an M.A. in Comparative Literature from Penn State and a B.A. in English and Spanish from Chapman University in her hometown of Orange, California. She spends all her free time outdoors.
This is a summary of a lecture presented on December 4, 2012.
Most people don’t think about cancer and the law, but when you or someone you love is diagnosed with cancer, it becomes very important to understand how and if the law protects your employment and insurance-related issues. “What is a cancer-related legal issue?” These include, but are not limited to, health insurance, estate planning, landlord/tenant concerns, employment, life insurance, government benefits, family law, financial resources, custody/guardianship of minor children, real estate, disability insurance, immigration, toxic torts, genetic discrimination, and consumer law. The three most common issues with which patients have to deal are: health insurance, employment and disability insurance. A few of these topics are presented here with the understanding that health care reform, effective in 2014 and beyond, may drastically change some of these issues.
Consolidated Omnibus Budget Reconciliation Act (COBRA)
COBRA gives workers and their families who lose their health benefits the right to choose to keep their same group health insurance plan for 18 to 36 months. COBRA requires that the person pay 102% of the premium, thus the individual must pick up the cost of what they were paying, what the employer was paying plus an additional 2% administrative fee. In order to qualify for COBRA an employer must have 20 or more employees. The qualifying events that allow someone to use COBRA for purchasing their health plan are: 1) Termination of employment, 2) primary person leaves the plan due to aging out to Medicare, divorce, or death of a spouse who was the worker carrying the insurance or 3) a child aging out because they turned 26 years of age (this was added as a result of the health care reform). In the first event COBRA lasts 18 months; for each of the other qualifying events the coverage can be for up to 36 months.
California also has a CAL-COBRA which is a state law and it covers smaller groups of employees, 2-19 and lasts 18 months. It also extends COBRA to 36 months for those who do not quality for 36 months. The cost can be up to 110% of the applicable employee rate.
Health Insurance Premium Payment Program (HIPP)
HIPP pays for private COBRA insurance premiums for people who do not let their health insurance lapse, can’t afford the premiums and are eligible for Medicaid or Medi-Cal as it is called in California.
Health Insurance Portability and Accountability Act (HIPAA)
While many associate the HIPAA act with privacy issues, it also contains many important protections related to health insurance. It prohibits discrimination against individuals based on pre-existing medical conditions. It also creates a Federal right to convert a group plan to an individual plan. This is called a “Guarantee Issue Plan,” and often needs to be asked for by that name. This would come into play if someone has exhausted their COBRA coverage and now wants to purchase an individual policy. As long as they have had existing coverage, or have not had a lapse in coverage for more than 63 days, they can convert their group plan into a “guarantee issue” individual plan. HIPAA also limits the exclusion periods for pre-existing conditions and gives credit for previous health insurance, thus preventing someone from having to go through a new review prior to coverage if their insurance has not lapsed. The health plan should give a “Certificate of Creditable Coverage” to the new insurance plan when a group plan is terminated.
Major Risk Medical Insurance Program (MRMIP)
This is a state run insurance program for people with pre-existing conditions. There is currently no waiting period for this. The cost is based on age and what kind of coverage a person desires. The more coverage elected, the greater the cost of the insurance. This is appropriate for anyone who has been turned down for insurance.
Pre-Existing Condition Insurance Plan
New since the affordable care act, this is a plan to help individuals get insurance who have not had insurance for at least 6 months or more. It is for people who are uninsured and have a pre-existing condition. There are a variety of providers with a variety of options and costs. More information can be found at www.pcip.gov.
Pre-Existing Conditions: 2014
Starting in 2014, insurers cannot consider pre-existing conditions of a physical or mental nature, health status, medical history, genetic information or gender. What 2014 will bring regarding the price of insurance is still unclear as of this date. California is setting up health insurance exchanges for people to purchase health insurance. The costs are still unknown.
Low Income Resources
Medi-Cal is the California version of Medicaid. Individuals must be low income and fit another category as defined by the program, e.g., pregnant women with minor children or individuals with disabilities, etc. It is best to apply for the program and see if an individual qualifies. A person cannot have a lot of assets, although they can generally have a house and a car. Los Angeles has a program for individuals who cannot afford health care and do not fit the Medi-Cal categories called Healthy Way LA. This program will end in 2014 when it is combined with the regular Medi-Cal program
Many people with cancer wonder about what kinds of protections are available to them in the workplace as they are dealing with a serious illness such as cancer. The American Disabilities act (ADA) is a federal law that protects individuals from discrimination at all phases of employment. There are also many state laws which may vary from state to state. While someone with cancer may not want to be considered a disabled person, in the eyes of the federal law they are protected under these laws.
The ADA applies to employers that have 15 or more employees. It applies to employees who have a disability and to employees who are “qualified” for the job and can perform the essential functions of the job with or without accommodations. Disability is defined in this setting as a physical or mental impairment that substantially limits a major life activity. “Major Life Activity” is defined as walking talking, breathing, eating, caring for oneself, activities of daily living, reproduction and sometimes working. A “Substantial Limitation” is defined as being unable to perform a major life activity and the factors that are evaluated include the nature and severity of the limitation, the expected or actual duration and the impact of the disability. The ADA protects people who have a disability, have a history of a disability, are regarded as having a disability and, in some cases, are caregivers. A caregiver could be discriminated against because they are perceived as someone who might not show up at work (an example of this is the parent of a disabled child); this could be the basis of their protection under the ADA;
Title I of the ADA requires an employer to provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment, except when such accommodation would cause an undue hardship. This law sets forth an employer’s legal obligations regarding reasonable accommodation; however, employers may provide more than the law requires.
The Equal Employment Opportunity Commission has a guideline that determines what “reasonable accommodation” means and who is entitled to receive it. “Reasonable accommodations” can include a modification of the physical work environment, restructuring of the job and possibly an extended period of leave time. These can include things such as flexible scheduling, allowing someone to work at home, or creating a workspace that accommodates the disability. There is an organization, Job Assistance Network (www.askjan.org), which works with employers and employees to come up with reasonable accommodations. A medical provider must state what the needs of the disabled person are, what they can and cannot do, and certify that what the person needs is reasonable. Medical providers do not need to turn over medical records or reveal specific diagnoses.
California also provides protections through the Fair Employment and Housing Act. It is broader than the ADA because it applies to companies with five or more employees, it is a little more liberal than the ADA and they specifically define how cancer can be a “limitation on major life activity.”
Family Medical Leave Act (FMLA)
FMLA provides protection to employees who are ill or who have a covered family member who is ill. It insures that employers provide 12 weeks of protected leave per year so that employees can return to their job and maintain their health benefits. It is not guaranteed as paid leave; leave pay is up to an employer. A “covered individual” is self, parents, minor children or spouses. A covered employee must have worked for 12 or more months prior to the leave and must have worked at least 1,250 hours in the previous year. The 12 weeks can be taken intermittently or can be taken all at one time. A “covered employer” includes all public employers (local, state, and Federal) and some large private employers who have 50 or more employees located within a 75 mile radius.
The California Family Rights Act runs concurrently with FMLA. It is very much the same as FMLA but includes registered domestic partners as equivalent to a spouse.
Disability Insurance Programs
Disability insurance programs come in three forms: private insurance plans, state short-term insurance, and federal long-term insurance. Private insurance plans must be purchased privately which means some people have them while others do not.
State Disability Insurance (SDI)
SDI lasts for up to one year and provides 55% of a person’s wages. In order to qualify the person has to have been unable to perform regular/customary work for at least eight calendar days and have a loss of wages. They also must have earned at least $300 from which SDI taxes were withheld during the previous 12 months. Claims must be filed within 49 days of the disability date. This is run through the Employment Development Department (EDD) of the State of California.
Family Temporary Disability Insurance (FTDI)
FTDI provides six weeks of wage replacement benefits for employees who take time off to care for a seriously ill child, spouse, parent, or domestic partner. It has the same requirements as SDI. It only allows for six weeks of paid leave per any 12 month period.
Federal Disability Insurance
There are two types of Federal Disability Insurance, Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI). In order to quality for either of these, a person cannot perform any “substantial gainful activity” due to a physical or mental impairment. There is an expectation that this impairment will last for one or more years or result in death. There are a list of diseases and conditions known as compassionate allowances. Compassionate Allowances (CAL) are a way of quickly identifying diseases and other medical conditions that invariably qualify under the “Listing of Impairments” based on minimal objective medical information. Cancer that has metastasized or is inoperable is included in this list. More information can be found at ssa.gov/compassionateallowances. Medical evidence of disability comes from medical records. It is important that the physician actually writes down what is wrong and what a person is able to do/not do in the medical record in order to qualify for this disability insurance. These records may need to be produced. If the disabilities are discussed but not appropriately documented then the disability benefit could be denied.
SSDI is based on prior work history, whether a person has paid into Social Security and whether they are unable to continue working due to a disability. SSDI payments are not made immediately; there is a waiting period of at least six months from the date of disability; however retroactive payments are possible. Once someone has been on SSDI for 2 years, they also become eligible for Medicare health insurance. As an example:
- Disability began May 1, 2010, the person applied for SSDI on January 1, 2011.
- The first SSDI check came in June, 2011.
- The check will be for 8 months which excludes the 6 month waiting period.
Supplemental Security Income (SSI) is based on whether or not a person has assets and income. It is not related to work history. People eligible for SSI are automatically eligible for Medi-Cal.
While the law is not perfect, there are a variety of programs through which persons with cancer can access health and disability insurance, and people with cancer or a history of cancer should not be discriminated against in the workplace. People who need more specific information about which laws apply to their particular situation are encouraged to contact the Cancer Legal Resource Center at 866-THE-CLRC (866-843-2572) or visit our website www.cancerlegalresourcecenter.org
• EEOC (800)669-4000 or www.eeoc.gov
• Department of Fair Employment & Housing www.ca.dfeh.gov
• Job Accommodation Network www.askjan.org
• Pre-Existing Condition Insurance Plan www.pcip.gov
• Social Security Administration – Compassionate Allowances www.ssa.gov/compassionateallowances
• CLRC (866-THE-CLRC) www.CancerLegalResourceCenter.org
The mission of the Cancer Legal Resource Center is to provide information and resources on cancer-related legal issues to cancer patients, survivors, caregivers, health care professionals, employers and others coping with cancer. It is a joint program of the Disability Rights Legal Center and the Loyola Law School of Los Angeles. It provides confidential services which are primarily educational in nature.