Is the future of the healthcare system in the USA dependent on whether a handful of Supreme Court Justices think Obamacare expands federal power to the point that the government can force you to eat broccoli or buy a cell phone?

So it would seem. That's scary.

What result the Supreme Court reaches is of great importance to many of California's injured workers. After an injury, many of those workers lose insurance coverage. And even if they can find individual coverage-which many can't-the cost is likely to be prohibitively expensive.

The forced broccoli purchase argument was at the heart of what by all accounts was a disastrous session at the Supreme Court this week, as the Solicitor General struggled to make the case distinguishing how the mandate to purchase insurance can be viewed as consistent with some limits on federal power.

It set up a bizarre situation where even detractors of the law seem to agree that Congress could tax to set up a healthcare system (?single payer?) but where they question a mandate to purchase insurance in the private market.

Which of course lo and behold is a Republican idea that had been advanced by the Heritage Foundation.

And at one time by Mr. Romney.

This is our Alice in Wonderland politics.

But requiring individuals to purchase insurance is not like requiring them to buy broccoli or drink cod liver oil or cell phones or flashlights.

Unlike those other items, individuals without healthcare coverage put a direct financial burden on all of us as citizens and taxpayers. They'll seek care eventually and we all pay. At the county level, the state level and yes, the interstate level.

But given the interstate nature of the healthcare market, it's hard for individual states to enact a comprehensive solution that works.

As Law Professor Jeffrey Rosen notes in The New Republic:
"The Supreme Court endorsed an argument along these lines when it upheld Social Security in 1937. In Helvering v. Davis, which should have been front and center during the health care oral arguments, Justice Benjamin Cardozo wrote that a state might have resisted providing broader benefits or coverage to its neighbors out of fear that it would become “a bait to the needy and dependent elsewhere, encouraging them to migrate and seek a haven of repose.” For this reason, the Court viewed income for the elderly as a national problem that needed a national solution. In the same way, affordable health care—unlike guns in schools or violence against women, subjects traditionally regulated by state and local criminal law—is an essentially national problem."

Here is a link to an article by Duke University Law School Professor Neil S. Siegel which outlines the legal underpinnings of the notion of collective action federalism:
http://scholarship.law.duke.edu/faculty ... ship/2386/

Floyd Norris, chief financial correspondent of the New York Times and International Herald Tribune, has an interesting take on the dispute about the mandate. Norris suggests that if the justices are so disturbed by the mandate, then there should be an "opt out" provision along with a "do not treat provision".

Here's the argument Norris makes:
"if someone is morally offended by the idea of buying health insurance, he or she should be given counseling about the risks but then allowed to decide.Persons who decline insurance would be allowed to provide details of how they intended to pay for care otherwise, if they wished to do so, and to name a person who would be responsible for paying for the care if the patient were unable to direct payment, much as many people now have health care proxies.Anyone who chose not to have health insurance, and not to indicate how they would otherwise pay, would be put on a “Do Not Treat” list. Hospitals could simply refuse to offer any treatment, respecting the person’s wish to make his or her own decisions free of an intrusive government trying to keep them alive.I doubt many people would sign up for such a system, but it would certainly overcome the alleged constitutional flaw in the current health care law.Some people might be concerned that such a system would amount to voluntary euthanasia or assisted suicide. But surely they would put aside such qualms when they understood this was necessary to preserve our freedom not to be forced to buy something we do not wish to purchase."

Presumably Norris would support subsidies for those who wanted to purchase insurance but could not pay the full boat.

But for those who can pay and simply refuse, his idea is intriguing.

We'll know how all this turns out in a few months.

Meanwhile, California's injured workers should take a moment to reflect on how they have a dog in this hunt.

Julius Young
www.workerscompzone.com
www.boxerlaw.com

Eye opening and transformative.

That's how Angie Wei of the California Labor Federation described her visit to some hearings at the San Francisco and Oakland Workers' Compensation Appeals Board.

Wei was among the speakers at a legislative hearing this week on the future of California workers' comp.

Wei described the scene that so many workers' comp claimants and judges know.

Crowded hallways of negotiating attorneys. Small courtrooms filled with
overworked judges, waiting claimants and defense attorneys who appeared to be engaged in a strategy of delay.

Exhibiting passion that was in short supply during the legislative hearing, Wei described several cases she observed which led her to recommend that
people go down and take a look for themselves to understand the system better.

I was thrilled to hear her testimony.

Frankly, the disconnect between policymakers and the real world of injured workers is often a wide gulf.

I'm a bit of a wonk myself, else I would not be pounding these keys week in and week out for over half a decade, covering the workers' comp scene.

But I've often had the feeling that some of the policymakers, stakeholder
advocates, and think-tank folks need to get a better grip by coming to the WCAB and meeting some claimants, lawyers and judges.

If nothing else, it might make them more cautious in advancing reforms that have repeatedly....reform after reform....led to unintended consequences.

I also liked Wei's call that stakeholders consider that they may need to consider taking a haircut to deliver a package that will benefit workers.

Wei asked that providers ...."Defend what is defensible and walk away from what is indefensible because some of these expenses and the greed that is in the system is simply indefensible."

The key will be in identifying what is defensible and what is not, of course.

Wei, legislative director for the Cal Fed, produced a position paper on workers' comp. Here's the link:
http://www.calaborfed.org/index.php/sit ... gers_rules

In future posts I'll look at some of the Cal Fed's suggestions.

Stay tuned.

Julius Young
www.workerscompzone.com
www.boxerlaw.com

Today's workers' comp hearing held by the legislature was nothing short of fascinating.

There they were, all testifying.

The key players in California workers' comp.

Insurance Commissioner Dave Jones. Brown Administration Workforce Agency head Marty Morganstern, DIR head Christine Baker, and DWC Administrative Director Rosa Moran.

Mike Nolan and Alex Swedlow from the California Workers' Compensation Institute.

Frank Neuhauser, UC Berkeley researcher, testifying about the decrease in permanent disability benefits the 2004 reforms.

Angie Wei, from the California Labor Federation. Sean McNally of Grimmway Farms, speaking on behalf of California employers. Brad Chalk, current president of the California Applicants Attorneys Association.

The hearing was live streamed.

My last post said that the hearing would be posted on the California Channel (www.calchannel.com). As of the time of this post it has not been uploaded there, but if that changes I will post a link.

In coming posts I'll reflect on some of the issues that were raised at the hearing.

Julius Young
www.workerscompzone.com
www.boxerlaw.com

On Wednesday March 28 a hearing on workers' comp is scheduled in Sacramento at the Capitol.

The hearing, held by the Senate Industrial Relations Committee and the Assembly Insurance Committee, will focus on the impact of SB 899.

The hearing is slated to start at 9:30 Wednesday.

It will be viewable online in realtime via the following link (choose Senate Committee Room 2040):
http://senate.ca.gov/listentorooms?utm_ ... dium=email

If you can't catch the realtime broadcast you will also probably be able to find it on the California Channel website .Here is that link:
www.calchannel.com

With rumors about further reform efforts swirling around the system, it will be interesting to see some researchers and commentators reflect on where we are now and what solutions might be advanced.

Stay tuned.

Julius Young
www.workerscompzone.com
www.boxerlaw.com

In the 1980s and 1990s workers' comp legislative changes sometimes occurred as stakeholder groups ganged up on other stakeholder groups to push bills through.

The interests of employers and insurers sometimes collided, and deals were cut with labor and applicant attorneys.

I'll never forget a lunch several years ago with a leading employer-side figure in the comp industry. He told me that efforts were underway to keep employers and insurers together, and that the divisions that emerged in earlier decades were not likely to be repeated.

It's complicated, though.

In a down economy as premiums have dropped and as investment income opportunities have become somewhat less lucrative, insurers need more revenue.

On the other hand, business looks at increases in workers' comp costs as a constant threat. Whether we are talking small business or global enterprises, workers comp may be a small part of overall costs, but cost margins are critical for many employers.

And for cities and counties and school districts, increased workers comp costs can determine whether clinics and schools remain open and whether public safety positions can be funded. California has cities, including Stockton, teetering on the edge of bankruptcy. PERS and municipal pension funding remains a problem.

All of this becomes more critical as the drumbeat of a new round of comprehensive comp reforms is faintly heard in the background.

And that's why an e-blast yesterday from the Workers' Comp Executive caught my attention. The piece by the Executive notes that:
"The California Workers' Compensation Institute at its 48th annual meeting votes in a new slate of board members for 2012-2013. In addition to electing 15 insurer members, CWCI for the first time ever has elected two self-insureds-one private and one public-to serve as board members. CWCI President Michael Nolan says the idea originated with CWCI's Executive Committee and Board of Directors both of whom want a stronger relationship and greater input from the self-insured community."

According to the Workers' Comp Executive the two non-insurer associate members are Sean McNally of Grimmway Farms and Martin Brady of Schools Insurance Authority. McNally is of course a member of CHWSC and was involved in the talks over a grand-bargain reform that surfaced several years ago but stalled.

It's another example of how employers and insurers are reaching out to coordinate their interests in a way that wasn't done in prior years.

I'm sure these folks are crunching their numbers.

Doctors and applicant attorneys had better get busy crunching theirs. Benefits need to go up. The question is, who will pay?

Julius Young
www.workerscompzone.com
www.boxerlaw.com