Health reform will free many from “job lock”

A report this week from the nonpartisan Congressional Budget Office contains a section that mentions how health-care reform offers many people relief from “job lock.”

That’s a reference to those who stick with a job simply to maintain their employer-based health insurance. Until the Affordable Care Act, they had no other option. Now, many people – perhaps 2 million or more – will be able to take advantage of new subsidies for health insurance and the new marketplaces for individual policies.

Simply put, many people have options for health insurance that no longer depend on a job. They’ll be able to retire earlier, adjust their work life with home life, work fewer hours, start a business or pursue other vocations. It’s their choice.

Those are good things, right? But opponents of the Affordable Care Act have trotted out the usual histrionics, shouting about “job killing” and destruction of the economy, accusations that have no factual basis. Some even call it “willful stupidity.”

The deceptive rhetoric ties in with the detractors' stated desire to return to the good old days of allowing insurance companies to reject health care to individuals because of a previous illness. They’d also create more havoc for consumers by allowing health policies to be sold across state lines, which would weaken protections and hurt in-state firms.

The caution and suggestion here is to dig a little deeper below the headlines. But don’t take just our word on this. Check out what a professor of pediatrics from the Midwest had to say about the newest criticism of the Affordable Care Act.

And see how health reform is already helping and will further assist Washington citizens in our updated report on the uninsured in our state.

Limitations periods for claims of negligent supervision allowing sexual assaults to occur

Choc v. Hudbay Minerals Inc., [2013] O.J. No. 3375 (S.C.J.) is a case that may be of interest to institutional defendants of sexual assault claims.

In this action the plaintiffs, who are indigenous Mayan Q’eqchi’ from Guatemala, brought three related actions against the Canadian mining company, Hudbay Minerals and its subsidiaries.  The plaintiffs allege that security personnel working for Hudbay’s subsidiaries committed a number of abuses including a shooting, a killing and gang rapes during the forced removal of the plaintiffs from areas claimed as ancestral homelands.    

This decision is in respect of motions brought by the defendants, Hudbay Minerals, HMI Nickel and CGN with respect to three related actions by the plaintiffs.  One motion sought the dismissal of one of the actions on the basis that it was statute-barred by the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B [“Limitations Act”].  The action sought to be dismissed was brought by 11 women who asserted they were each gang-raped by mining company security personnel during their forced removal on January 17, 2007.  The action was not commenced until March 28, 2011, more than 4 years later.

The defendants argue that the basic limitation period, of two years after the day on which the claim is discovered, pursuant to section 4 of the Limitations Act, is applicable.  The defendants contend that the plaintiffs’ claim is not based on assault or sexual assault but is framed in negligence based on the alleged failure of Hudbay to supervise employees and agents of its subsidiaries.  They argue there is no issue of discoverability and the plaintiffs knew of the alleged claims as of January 17, 2007.   

The plaintiffs argue that section 10 of the Limitations Act which provides an exception to the two year limitation period for claims based on an assault or sexual assault is applicable.  If the claim falls within the scope of section 10, then the limitation period will not have started running because the plaintiffs will be presumed to have been incapable of commencing the proceeding, unless the contrary is proven. 

The motions judge held that section 10 was applicable in the circumstances of the case as the claim is based on alleged sexual assaults.  Although the claim was based in negligence for the defendants’ failure to properly supervise and train their personnel, ultimately, without the sexual assault there would not have been a claim.  The sexual assault was “the main ingredient of the cause of action of negligence”.  As such the claim properly fell within the scope of s. 10 of the Limitations Act.

Counsel should be aware that even if a claim is framed in negligence, the standard two year limitation period may not apply.  Rather, the offence giving rise to the action may put the claim into one of the exceptions.

Affordable Care Act in Washington: helping consumers, stimulating job diversity

The Washington state Legislature today held a hearing on Senate Bill 6464, which would allow Washington consumers to purchase catastrophic plans from states outside of Washington. In November, Insurance Commissioner Kreidler said allowing catastrophic plans is not “a good deal for Washington state.” Furthermore, allowing consumers to purchase out-of-state plans opens the door for health insurers to skirt Washington’s regulations that protect consumers.

Washington citizens have been covered by health insurance through the Washington Healthplanfinder for a little more than a month now. Let’s take a look at the numbers so far:

  • We recently published a report on uninsured and underinsured people in Washington for 2012. Approximately 14.5 percent of Washington citizens were uninsured before 2014, exceeding 990,000 people.
  • More than 325,000 people have purchased health insurance through Washington Healthplanfinder.
  • 33.1 percent of eligible Washingtonians have purchased health insurance through Washington Healthplanfinder, leading the country alongside Vermont, with 33.4 percent, in percentage of people insured, according to the Kaiser Family Foundation.
  • Washington expanded Medicaid, now called Apple Health, to cover more than 516,000 people who qualify for free health insurance. Washington will eventually expand its coverage to more than 800,000 people who qualify.
  • Other benefits under the Affordable Care Act are no out-of-pocket costs to consumers for preventive care; people with chronic medical conditions like multiple sclerosis, heart disease or cancer no longer can be denied coverage; and health insurers can no longer hold consumers to an annual or lifetime maximum limit on what they will pay for.

Today, the U.S. Congressional Budget Office released a report projecting the Affordable Care Act will allow people to leave traditional full-time jobs—the ones that historically have provided medical insurance—because they now can sign up through a state or federal Health Benefit Exchange. The side of that story the media isn’t telling, however, is that people who’ve historically been locked into those jobs can pursue other types of work – starting a small business, working as an independent contractor from home, pursuing a career as an artisan or writer, or many other options that will still benefit the economy. The ACA allows them to pursue whatever line of work they wish to, because they are not beholden to an 8-to-5 office or government job in order to have health insurance.

In fact, the Robert Wood Johnson Foundation, the Urban Institute and Georgetown University’s Health Policy Institute in 2013 reported that the number of self-employed Americans is projected to increase by 1.5 million people this year—11 percent-- as a direct result of their ability to get health insurance under the Affordable Care Act. Read more in the New York Times Economix blog. In Washington state, that number is projected to increase by 30,000, or 8.7 percent.

Our consumer experts are here to help—in any language

A big part of what we do is help consumers who have questions about insurance or who are experiencing trouble with their insurance policy or company. In 2013, we responded to more than 5,000 inquiries from consumers and helped recover $8.4 million in insurance billings, refunds and other claims-related issues. Did you know the Insurance Commissioner’s Office has consumer experts who can help people who have hearing loss and people in nearly any language?

We have 17 consumer advocates; four of our employees also speak also Spanish, Chinese, Tagalog or American Sign Language. For all other languages, we contract with a company that provides interpretation services. We also have a telecommunications device for the deaf (TDD) for callers who have hearing or speech impairments.

We can help:

Consumers can reach us by phone at 1-800-562-6900, online via our web form or even in person at our Tumwater office.

Read more about consumer advocacy at OIC.

What types of health information are consumers compelled to divulge under Affordable Care Act rules?

I just selected a new health insurance plan and they’re asking me questions about my health. I thought insurance companies can’t do this anymore?

Under health care reform laws, insurance companies can’t require you to answer health questions in order to buy insurance.

However, once you are covered by a health plan, companies are allowed to ask questions to determine whether you qualify for one of their disease management programs or for case management services. Disease management programs help consumers learn how to manage chronic health conditions such as diabetes, heart disease, or depression.

Case management programs help consumers who have very serious health conditions, such as leukemia, cut through the red tape to get the insurance company to pay for their treatment. For example, to prevent misdiagnosis, some insurance companies won’t start paying for cancer treatment until consumers get a second opinion to confirm the diagnosis. The average consumer wouldn’t know this, but a case manager will tell the consumer about this requirement and, if necessary, help the consumer schedule an appointment for a second opinion. Many case managers are also licensed nurses, so they can also suggest solutions to problems, such as side effects, that consumers experience during treatment.

Both of these services are voluntary, so you don’t have to answer the questions. Even if you do answer the questions, you don’t have to participate in the programs.

I recently applied for life insurance and they made me answer questions about my health. I thought insurance companies can’t do this anymore?

Under health care reform laws, insurance companies can’t require you answer health questions in order to buy medical insurance. However, insurance companies can still require to you answer health questions to buy other types of insurance, including:

  • Life insurance 
  • Long-term care insurance 
  • Dental insurance
  • Vision insurance 
  • Disability insurance
  • Medicare Supplement plans and Medicare Advantage plans, under certain circumstances

Read more information about health care reform.

Our consumer experts can answer your questions about any type of insurance. They are available by phone at 1-800-562-6900 or by submitting an inquiry through our website.

Kreidler: Nearly 14.5 percent of Washingtonians were uninsured in 2012

Today, we issued our fourth report on the number of Washingtonians who have no health insurance. At the end of 2012, some 990,000 people -- approximately 14.5 percent of the state's population -- were uninsured.

From 2010 through 2012:
  • The number of uninsured people in Washington grew by more than 44,000.
  • Four out of five people with individual insurance were underinsured, meaning they had plans that only paid for 25-40 percent of their medical costs.
  • Employer-sponsored coverage grew increasingly scarce.
  • Uncompensated care ballooned to nearly $1 billion per year.
The Affordable Care Act fully took effect on Jan. 1 and the uninsured rate is expected to drop to 6 percent by 2016. Early provisions of the Affordable Care Act prevented an estimated 100,000 people from joining the ranks of the uninsured prior to 2014.

“For many families who have struggled to get or keep health coverage, health reform couldn’t come soon enough,” said Insurance Commissioner Mike Kreidler. “Regardless of how you feel about ‘Obamacare,’ it’s hard to argue that we’re not making progress in stopping the growth of uninsured or that the status quo was sustainable. Before health reform, we had hundreds of thousands of people living one bad diagnosis away from bankruptcy.”

The Test for Determining Implied Consent to Use a Motor Vehicle

In Myers-Gordon(Litigation guardian of) v. Martin, 2013 ONSC 5441 (S.C.J.), the defendant’s son drove his mother’s  car while impaired and was involved in an accident, killing two pedestrians and injuring two others. Claims were brought against the defendant’s mother, Karen Martin. The parties agreed that the Ms. Martin had not given her son express consent to use her vehicle. The issue before the court on this motion for summary judgement was whether Ms. Martin had given her son implied consent to take her vehicle.

Justice Kent relied on the 2008 decision in Seegmiller v. Langer [2008] O.J. No. 4060 where 8 principles were considered to determine if there was implied consent:

  1. Whether a motor vehicle is in possession of some person without the consent of the owner is a question of fact determined on the evidence.
  2. The meaning of possession is a question of law, applying this definition is not a question of law alone.
  3. Generally, possession means power, control or dominion over property
  4. Once ownership is established, the onus passes to the owner to establish that another was in possession without consent.
  5. The owner’s vicarious liability is based on possession, not operation.
  6. Consent to possession is not synonymous with consent to operate.
  7. If possession is given, the owner will be liable despite a breach of a condition attached to possession, including that the person in possession not operate the vehicle.
  8. Breach of the owner’s conditions, does not alter the fact of possession.

Justice Kent considered the above factors and found no implied consent despite the fact that the son had driven the vehicle with permission numerous times in the past, Ms. Martin left the keys at home where they were accessible to her son and Ms. Martin had not brought up the issue (with her son or the police) that her vehicle was taken without consent until a significant time after the accident. The actions were dismissed against Ms. Martin due to Justice Kent’s confidence in the son’s evidence that he never thought he had consent to possess or drive the vehicle.
Consent is fact-driven and the eight-fold test provides a useful framework in which to work.