Monday, April 30, 2012

Healthcare Reform: Know Thine Enemy

The Kaiser Family Foundation has a quick survey that assesses your knowledge of the health reform law known as the Affordable Care Act (and more informally as Obamacare).  Regardless of your opinions of the ACA, you should take the survey to find out how much you know.

After you've taken the survey, you might want to read the Kaiser Family Foundation analysis about the results. Despite  two years of national debate since the ACA was passed, many people still have false impressions about what the law requires. Unfortunately, Nancy Pelosi's statement that "We have to pass the bill so you can find out what's in it" was woefully short of the truth.

According to the Kaiser Family Foundation, Democrats are more likely than Republicans to score higher on the survey, to approve of the law, and to think they will be better off when the ACA is fully implemented. But the Kaiser Family Foundation points out that there is no causal connection between approval of the law and knowledge of its terms -- it could be that knowledge leads to approval, or that approval leads to people learning more about it.

I scored a 10 out of 10 on the quiz, and I disapprove of the law. At least I can claim my disapproval is based on an informed opinion.

The law has some good provisions (e.g., letting children stay on their parent's plan until age 26), and we do need healthcare reform in this nation, but the ACA is not the appropriate vehicle for change.

Here are some of my complaints about the law:
  • The ACA maintains the burden on employers to subsidize healthcare for employees, without changing the tax-free nature of employers' obligation in order to equalize employer provided healthcare with that purchased on the outside market. It shouldn't matter where an individual gets healthcare; the tax impact should be the same.
  • The ACA mandates a level of benefits that many employers and individuals may not want to pay for, which leads to arguments over what should be covered.  Instead, we should let insurers develop their own plans and let those compete in the marketplace.
  • The ACA does little to reduce the cost of healthcare in this country, nor to promote transparency in healthcare pricing by providers. I'd rather see competition among plans and published prices for medical services and products, so individuals can see which plans really provide what type of care they need.
You may agree or disagree with me, but I hope you take the time to become informed.

The Supreme Court's decision on the ACA (likely to come in June) will not be the final word on healthcare reform in the U.S. We will be discussing healthcare reform for many years, whether the law in its current state is upheld or not. Let's have the debate on an informed basis.

Monday, April 23, 2012

Favorite Firing: The Absent Nurse in the ICU (Second in a Series)

The Ninth Circuit Court of Appeals, one of the more liberal courts in the nation, declared in Samper v. Providence St. Vincent Medical Center, that attendance is an essential job requirement for some jobs.

This case arose under the Americans with Disabilities Act  (ADA) – a law with the laudable purpose of protecting the job rights of people with disabilities and requiring employers to provide reasonable accommodations to employees with disabilities.

The Facts:  A nurse in a neonatal intensive care unit (NICU) had fibromyalgia and missed a lot of work.  When she was absent, she could not care for the premature babies in the NICU – which was the essential function of her job.

As required by the ADA, the nurse and the hospital discussed accommodation of her inability to comply with the hospital’s attendance policy because of her disability.  The nurse wanted to be given an unspecified number of unplanned absences from her job, and to opt out of complying with the attendance policy at all.

The hospital had few nurses who could back up the employee in question, and said they could not accommodate her request.  The hospital worked with her through several years of poor attendance, and even permitted her to re-schedule her shifts on short notice. 

Finally, however, when even this flexible scheduling did not work to improve the nurse’s attendance, the hospital concluded they needed to move her to another department.

She refused the job transfer, continued to be absent, and even missed the meeting with her supervisor to discuss her attendance. Then she was fired for poor attendance, and she sued the hospital.

The Moral:  Even the liberal Ninth Circuit determined that attendance was an essential job requirement for a nurse.  As the Court said,
“Both before and since the passage of the ADA, a majority of circuits have endorsed the proposition that in those jobs where performance requires attendance at the job, irregular attendance compromises essential job functions.”
The Ninth Circuit agreed with its fellow courts.

In essence, the court held that you can’t take care of babies without being where the babies are:
“This at-risk patient population cries out for constant vigilance, team coordination and continuity.”
Good to know.  Employers do not need to “gut” their reasonable attendance policies, according to the Ninth Circuit.

But employers should keep in mind that this case does not provide leeway for employers to always  fire employees for poor attendance.  Some jobs can be done from home, or the scheduling of work time could be more flexible than a nurse’s shift.  A reasonable accommodation in these cases might well require that an employer not follow its attendance policy.

The health care sector is a growing part of the U.S. economy, and aging baby boomers will need more personal services in the years ahead.  These caregiving roles will always require attendance as an essential function of the job. 

By contrast, more and more jobs that are done today in offices will be able to be done from home as technology develops.  Attendance during particular hours will become less important in these jobs.  Even jobs requiring teamwork or customer service may be able to be accomplished through virtual contact, using social media, Skype, or other means of long-distance interaction.

Which of these competing views of the workplace will grow faster? An interesting question for the demographers. Are there any opinions among my readers?

* * *

I’d like to occasionally post about employee terminations that illustrate the state of the modern workplace.  As I wrote in the first “favorite firing” post, if you have any ideas for stories to publish, please email me or leave a comment below.  But please disguise the facts to protect the innocent (and not-so-innocent) unless the situation is well-publicized, and then include a link to support your story.  Only verified stories will be published.

Monday, April 16, 2012

Tax Reform Desperately Needed To Reduce Complexity

I finished my federal and state tax returns this past week and got them mailed – always a huge relief.  I do my family’s taxes myself; I figure anyone with a law degree should be able to handle this task of citizenship.

But every year it gets harder.  The Internal Revenue Code is now 3.8 million words.  The instruction book for Form 1040 alone is 189 pages.

This year my federal and state returns, with all of their supporting worksheets, created a 297 page PDF file.  This level of complexity is preposterous.

What bothers me the most is that year in and year out my household pays approximately 20% of our adjusted gross income in federal taxes.  Some years it’s 19%, some years it’s as high as 22%.  But it’s always in that range, no matter how variable our income or deductions.

Why can’t I pay a flat tax rate of 20% or thereabouts?  I’d give up some of my deductions to reduce the complexity of our tax returns.

We need tax reform desperately in the United States.  Here are a few of the reasons:
  • Only 53% of Americans pay any federal income tax.  Yes, I know there are payroll taxes, but more Americans should share in the burden of paying income tax.  Maybe then they would care more about who represents them in Congress.
  • The Alternative Minimum Tax hits more and more middle-class Americans every year, despite annual “fixes.”  (The AMT was the Warren Buffett tax of 1969.)
  • Our current tax code skews the economy.  For example, the mortgage deduction pushes people into home ownership and contributed to the 2008 recession.  The differing taxation levels on bond interest, stock dividends and capital gains incentivizes behavior based on factors other than the value of the investment.
  • Neither the current Obama nor Republican tax reform proposals address the ballooning deficit in a serious and detailed way.  We are not adequately funding our growing entitlement morass.

I believe in a progressive federal income tax system. But I don’t believe it needs to be this complex.  No one – not even Mitt Romney nor Warren Buffett, and I am certainly not in their league – should have to fill out 297 pages of worksheets and forms to file a tax return.

Are you chafing about filing your tax returns? 

Here are two posts I recommend – one from Smart Money on “10 Things I Hate About Tax Day,” and the other a calmer, more philosophical approach at Janet Sunderland’s blog, Spiritual Crossroads, entitled “Taxing the Brain.”

Monday, April 9, 2012

Change Yourself to Change Your Business

Recently I’ve been thinking a lot about change.  I'm involved in a project that I don't really want to deal with.  I believe in the mission of my organization, and I know the project is necessary, but I don't like how we got to the point of needing this project, and I'm resisting full participation.

How can I change my attitude?  No one else is going to do it for me.

At one place I worked, we used to say “Change is good . . . You go first!”  That saying was indicative of how hard change is.  It’s easy for a leader to say “we need to change.”  It’s much harder to get people to really change.  And if you can’t get yourself to change, how are you going to get the people you manage to change?

Last week I read a post on TLNT: The Business of HR that was titled “The World Has Changed – So Why Isn’t HR Able to Change With It?”   People have been asking that question since I was new to HR decades ago. 

The answer then, as now, is for HR managers to get out of their silo and work with the business leaders to move the business where it needs to go.  But that, of course, requires that HR managers change, that they actually learn about the business and not just learn more about HR. That's what I need to do – focus on why this work is needed and learn from the organization's leaders.

People resist change.  A recent post on the Fulcrum “Build Best Bosses Blog”  talked about six steps to dealing with resistance:

     1. Consciously acknowledge to yourself that you are encountering resistance.
     2. Center yourself – whatever works for you.
     3. In your own mind, consciously grant them permission to take the position they are adopting.
     4. Explore, investigate, become curious about their resistance – enter a dialogue.
     5. Declare your own perceptions, expectations, requirements and rationale.
     6. Resolve/decide/act as you see fit.

Maybe these are the steps I need to take with myself.  Maybe I need an internal dialogue about why I feel the way I do, then declare my expectations of myself and act accordingly. 

Changing myself to change my leadership . . . the theme of a third post I read last week by Mary Jo Asmus of Aspire Collaborative Services.

What are you resisting in your work today?  How will you counter your own resistance?

Monday, April 2, 2012

My Varied Perspectives on Health Care Reform

This past week’s Supreme Court arguments over the Affordable Care Act fascinated me – as an attorney, as a conservative, as a former benefitplan administrator, and as a corporate executive.

1.      Limits on the Commerce Clause

As an attorney, I was fascinated by the discussion on the limits of the Commerce Clause. In two years, we’ve moved from Nancy Pelosi asking “Are you kidding me?” when a reporter questioned whether the ACA was constitutional to a very serious debate in the Supreme Court over whether the federal government can require its citizens to purchase a product from private insurers.

As a conservative, I want to limit the intrusion of government – particularly the federal government – in the lives of Americans. The Constitution enumerates certain powers for the federal government, and reserves all other powers for the states or for individuals. Where are the limits of the Commerce Clause? We should find out something in June.

2.      The Desirability of Uniform Benefit Plans

However, much as I would prefer to see limits on what the government requires of its citizens, as a former administrator of health and pension plans for a corporation with employees in all fifty states, I recognize that uniformity makes plan administration much simpler.

Using the states as a testing lab for different healthcare reform options – as Republicans have been arguing – complicates plan administration significantly. The Employee Retirement and Income Security Act (ERISA) has a strong preemption clause, which permits companies that self-insure to develop national benefit programs. As a plan administrator, I appreciated ERISA’s preemption clause.

By contrast, companies that have a fully insured product must meet a variety of state mandates and other insurance regulations. Most businesses that have fully insured health plans have very little ability to opt out of state requirements they don’t like or think are too expensive, such as infertility treatments or organ transplants.

One thing to watch as the Department of Health & Human Services issues regulations under ACA is how onerous the requirements will be on all health insurance plans. We’ve seen one situation recently – the inclusion of birth control and abortificants as mandated preventative health care for women. The more treatments that are mandated under ACA, the more expensive health care insurance will be for all of us.

Uniformity is nice, but so is the ability to choose a plan that makes the most sense for the individual.

3.     De-Linking Health Care from Employment

As a conservative and a benefit plan administrator, I would prefer that health insurance not be associated with employment. Obviously, that would have eliminated the Benefits Department where I worked for a portion of my career, but it would have permitted my company to focus its attention more on the needs of the business and less on the rising cost of employee benefits. When the CFOs of companies spend as much time on tweaking their employee health care plans as on financing product and equipment improvements, something is wrong.

On the other hand, I recognize that a major reason that the health care system works today is that employers subsidize their workers’ health insurance. Employers get away with offering the same price to everyone – one of the requirements the ACA attempts to impose – because they subsidize the cost.

Younger employees are willing to buy into employee health insurance plans because of the subsidy which makes it worth their while (and, of course, older employees get an even better deal). In smaller businesses and non-profit employers, which cannot subsidize their employees’ costs to the same extent that large businesses can, employees are less likely to buy into insurance at work. They get coverage through a spouse’s employer or they do without health insurance.

4.     It’s Not Over till It’s Over

So what will the Supreme Court do? What will Congress do after the Supreme Court decision, whichever way it lands?

No matter what, there have been too many questions raised about the Affordable Care Act in the last two years. The 2,700 pages enacted in March 2010 will not remain intact.

What are your predictions?