As the Centers for Disease Control (CDC) continues cautioning Americans to expect a resurgence of the H1N1 virus, employers should continue to take prudent steps to defend their organization and their workers against a widespread H1N1 outbreak and the attendant lost time, health and disability costs, OSHA and other liability exposures and other personal and financial consequences likely to result from an outbreak. 

Employers wishing to deter the spread of the disease in their workplace should educate workers about these recommendations and consider taking steps to encourage workers to comply with these recommendations. When planning or taking steps to protect their workplaces from the H1N1 virus pandemic or other outbreaks of communicable diseases, however, employers must use care to avoid violating the Americans With Disabilities Act or other employment laws.

Preventing, Recognizing & Mitigating Risks of H1N1

Although the number of reported cases of H1N1 virus cases has declined in many states in recent weeks, CDC officials are warning American’s that the crisis is not over yet.  CDC officials last week warned Americans to expect H1N1 infection to rise as the holiday approaches and the winter progresses. With flu activity already higher than what is seen during the peak of many regular flu seasons and the H1NA virus accounting for almost all of the flu viruses identified so for this season,  Accordingly,  the CDC continues to encourage Americans to be alert for symptoms of H1N1 or other flu and to take other precautions including to get vaccinated.

Employers should continue to encourage workers and their families to take precautions to avoid catching the virus, to be on the watch for H1N1 virus or other flu infection and to respond appropriately if they, members of their families or others in the workplace exhibit these symptoms.   To help promote health habits within their workforce, many businesses may want to download and circulate to employees and families the free resources published by the CDC here.  Businesses and other concerned parties also can track governmental reports about the swine flu and other pandemic concerns at here.   

For those not already suffering from the virus and particularly for those at higher risk, the CDC continues to recommend vaccination. People recommended by the CDC to receive the vaccine as soon possible include:  health care workers; pregnant women; people ages 25 through 64 with chronic medical conditions, such as asthma, heart disease, or diabetes; anyone from 6 months through 24 years of age; and people living with or caring for infants under 6 months old.  As the vaccine becomes available, many employers are encouraging workers and their families to get vaccinated by offering vaccination clinics at or near their worksites, arranging for health plan coverage for vaccinations with reduced or no co-payments or deductibles, and/or sharing information about government sponsored or other vaccination clinics. 

While the CDC says getting employees and their families to get a flu shot remains the best defense against a flu outbreak, it also says getting employees and family members to consistently practice good health habits like covering a cough and washing hands also is another important key to prevent the spread of germs and prevent the spread of respiratory illnesses like the flu.  Employers should encourage employees and their families to take the following steps: 

• Avoid close contact with people who are sick. When you are sick, keep your distance from others to protect them from getting sick too;
• Stay home when you are sick to help prevent others from catching your illness;
•  Cover your mouth and nose;
• Cover your mouth and nose with a tissue when coughing or sneezing. It may prevent those around you from getting sick;
• Clean your hands to protect yourself from germs;
• Avoid touching your eyes, nose or mouth;
• Germs are often spread when a person touches something that is contaminated with germs and then touches his or her eyes, nose, or mouth; and
• Practice other good health habits.  Get plenty of sleep, be physically active, manage your stress, drink plenty of fluids, and eat nutritious food.

Employers also should encourage workers and their families to be alert to possible signs of H1N1 or other flu symptoms and to respond appropriately to possible infection.  According to the CDC, all types of flu including H1NA typically include many common symptoms, including:

• Fever
• Coughing and/or sore throat
• Runny or stuffy nose
• Headaches and/or body aches
• Chills
• Fatigue

Patients suffering from H1N1 flu usually report these same symptoms, but the symptoms often are more severe. In addition to the above symptoms, a number of H1N1 flu cases reported vomiting and diarrhea.

CDC recommends individuals diagnosed with H1N1 flu should:

• Stay home and avoid contact with others for at least 24 hours after a fever (100°F or 37.8°C) is gone without the use of fever reducing medicine except to get medical care or for other things that must be done that no one else can do;
• Avoid close contact with others, especially those who might easily get the flu, such as people age 65 years and older, people of any age with chronic medical conditions (such as asthma, diabetes, or heart disease), pregnant women, young children, and infants;
• Clean hands with soap and water or an alcohol-based hand rub often, especially after using tissues or coughing/sneezing into your hands;
• Cover coughs and sneezes;
• Wear a facemask when sharing common spaces with other household members to help prevent spreading the virus to others. This is especially important if other household members are at high risk for complications from influenza;
• Drink clear fluids such as water, broth, sports drinks, or electrolyte beverages made for infants to prevent becoming dehydrated;
• Get plenty of rest;
• Follow doctor’s orders; and
• Watch for signs for a need for immediate medical attention. Suffers should get medical attention right away if the sufferer has difficulty breathing or chest pain,  purple or blue discoloration of the lips, is vomiting and unable to keep liquids down, or shows signs of dehydration, such as feeling dizzy when standing or being unable to urinate.

In seeking to contain the spread of the virus within their workplace, employers also should be sensitive to workplace policies or practices that may pressure employees with a contagious disease to report to work despite an illness and consider whether the employer should adjust these policies temporarily or permanently in light of the ongoing pandemic.  For instance, financial pressures and the design and enforcement of policies regarding working from home and/or qualifying for paid or unpaid time off significantly impact the decisions employees make about whether to come to work when first experiencing symptoms of illness.  Employers of workers who travel extensively – may wish to delay or restrict travel for some period. 

Employers Must Employment Discrimination & Other Legal Compliance Risks

Many employers may want to evaluate and appropriately revise existing policies with an eye to better defending their workforce against a major outbreak.  Whether or not the disease afflicts any of its workers, businesses can anticipate the swine flu outbreak will impact their operations – either as a result of occurrences affecting their own or other businesses or from workflow disruptions resulting from safeguards that the business or other businesses implement to minimize swine flu risks for its workforce or its customers.  Many businesses also will want to prepare backup staffing and production strategies to prepare for disruptions likely to result if a significant outbreak occurs. 

Employers planning for or dealing with an H1N1 or other epidemic in their workplace should exercise care to avoid violating the nondiscrimination and medical records confidentiality provisions of the Americans with Disabilities Act (ADA) and/or the Genetic Information Nondiscrimination Act (GINA), the Family & Medical Leave Act of 1990 (FMLA), the Fair Labor Standards Act (FLSA) and applicable state wage and hour laws, and other employment and privacy laws.

Improperly designed or administered medical inquiries, testing, vaccination mandates and other policies or practices intended to prevent the spread of disease may expose an employer to disability discrimination liability under the ADA or GINA.  For instance, the ADA generally prohibits an employer from making disability-related inquiries and requiring medical examinations of employees, except under limited circumstances permitted by the ADA. Likewise, improperly designed or communicated employer inquiries into family medical status which could be construed as inquiring about family medical history also may raise exposures under genetic information nondiscrimination and privacy mandates of GINA that took effect November 21, 2009.

During employment, the ADA prohibits employee disability-related inquiries or medical examinations unless they are job-related and consistent with business necessity. Generally, a disability-related inquiry or medical examination of an employee is job-related and consistent with business necessity when an employer has a reasonable belief, based on objective evidence, that:

• An employee’s ability to perform essential job functions will be impaired by a medical condition; or
• An employee will pose a direct threat due to a medical condition.

This reasonable belief “must be based on objective evidence obtained, or reasonably available to the employer, prior to making a disability-related inquiry or requiring a medical examination.”

Additionally, the ADA prohibits employers from making disability-related inquiries and conducting medical examinations of applicants before a conditional offer of employment is made.  It permits employers to make disability-related inquiries and conduct medical examinations if all entering employees in the same job category are subject to the same inquiries and examinations.   All information about applicants or employees obtained through disability-related inquiries or medical examinations must be kept confidential. Information regarding the medical condition or history of an employee must be collected and maintained on separate forms and in separate medical files and be treated as a confidential medical record.  The EEOC Pandemic Preparedness In The Workplace and The Americans With Disabilities Act Guidance makes clear that employer inquiries and other H1N GINA’s inclusion of information about the “manifestation of a disease or disorder in family members” is likely to present a liability trap door for many unsuspecting employers H1N1 and other epidemic planning and response activities should be carefully crafted to avoid violating these proscriptions.

GINA’s inclusion of information about the “manifestation of a disease or disorder in family members” also could present a liability trap door for some employers designing pandemic or other workplace wellness, disease management or other programs.  GINA defines “genetic information” broadly as including not only information about genetic tests about an individual or his family member as well as information about the “manifestation of a disease or disorder in family members of such individual, GINA also specifies that any reference to genetic information concerning an individual or family member includes genetic information of a fetus carried by a pregnant woman and an embryo legally held by an individual or family member utilizing an assisted reproductive technology.  For more information about the new GINA genetic information employment discrimination rules, see here.

As part of their pandemic planning, employers also generally should review their existing wage and hour and leave of absence practices.  Employers should ensure that their existing or planned practices for providing paid or unpaid leave are designed to comply with the FLSA and other wage and hour and federal and state leave of absence laws. Employers also should review and update family and medical leave act and other sick leave policies, group health plan medical coverage continuation rules and notices and other associated policies and plans for compliance with existing regulatory requirements, which have been subject to a range of statutory and regulatory amendments in recent years.  If considering allowing or requiring employees to work from home, employers also need to implement appropriate safeguards to monitor and manage employee performance, to protect the employer’s ability to comply with applicable wage and hour, worker’s compensation, OSHA and other safety, privacy and other legal and operational requirements. 

Businesses, health care providers, schools, government agencies and others concerned about preparing to cope with pandemic or other infectious disease challenges also may want to review the publication “Planning for the Pandemic” authored by Curran Tomko Tarski LLP partner Cynthia Marcotte Stamer available at here.  FLU.gov is a one-stop resource with the latest updates on the H1N1 flu. An additional resource is CDC INFO, 1-800-CDC-INFO (1-800-232-4636), which offers services in English and Spanish, 24 hours a day, 7 days a week.  Schools, health care organizations, restaurants and other businesses whose operations involve significant interaction with the public also may need to take special precautions.  These and other businesses may want to consult the special resources posted  here. 

Cynthia Marcotte Stamer and other members of Curran Tomko and Tarski LLP are experienced with advising and assisting employers with these and other labor and employment, employee benefit, compensation, and internal controls matters. If your organization needs assistance with assessing, managing or defending these or other labor and employment, compensation or benefit practices, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer.  Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization and Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group and a nationally recognized author and speaker, Ms. Stamer is experienced with assisting employers and others about compliance with federal and state equal employment opportunity, compensation, health and other employee benefit, workplace safety, and other labor and employment laws, as well as advising and defending employers and others against tax, employment discrimination and other labor and employment, and other related audits, investigations and litigation, charges, audits, claims and investigations by the IRS, Department of Labor and other federal and state regulators. Ms. Stamer has advised and represented employers on these and other labor and employment, compensation, health and other employee benefit and other personnel and staffing matters for more than 22 years. Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly.   For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

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• New GINA Genetic Information Based Employment Discrimination & Confidentiality Mandates Take Effect
• SHRM Urges American’s To Oppose HR 3962, The Affordable Health Care For America Act
• Businesses Cautioned To Strengthen Investigation & Employment Practices To Minimize Potential Exposure To Retaliation Claims In Light Of Recent Supreme Court Retaliation Decision
• OFCCP To Apply Special Procedures, Heightened Scrutiny To Equal Employment Practices of Government Contractors, Subcontractors On ARRA Funded Projects
• US and UK Agree to Share Information & Cooperate On Pension Security As US Defined Benefit Plan Sponsors Face Tough New Defined Benefit Plan Funding Requirements
• Congress Considering Extending & Expanding Group Health Plan COBRA Subsidy Mandates On Heels of Enactment of Expanded Military Leave-Related Family Leave Mandates
• EEOC Prepares To Broaden “Disability” Definition Under ADA Regulations
• Tighten Employment, Ethics & Internal Controls Policies & Practices To Minimize DOJ & Other Antitrust Exposures
• IRS Proposes To Update Regulations On Exclusion of Damages Received on Account of Personal Physical Injuries or Physical Sickness To Eliminate Tort Test
• OSHA Final Rule Updates OSHA Personal Protective Equipment Standards
• DOL Proposes Changes To H-2A Temporary & Seasonal Agricultural Nonimmigrant Worker Certification Procedures & Related Rules
• “Disability” Definition Not Retroactive, Employer Action Needed To Manage Post 1/1/2009 Risks
• Employer & Other Health Plans & Other HIPAA-Covered Entities & Their Business Associates Must Comply With New HHS Health Information Data Breach Rules By September 23
• Speak Up America: Where & How To Read & Share Your Feedback About The Health Care Reform Legislation

For important information concerning this communication click here.   If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

©2009 Cynthia Marcotte Stamer. All rights reserved. 

The Genetic Information Nondiscrimination Act which went into effect on Nov. 20th is being reviewed by the EEOC in terms of its impact on social networking.  As written, it could lead to a ban on employers using social networking sites to screen potential job candidates so the EEOC is soliciting public imput on how social media should be handle by the act.

Já imaginou você dizer o que você quer para o seu carro e ele obedecer? Isso o BMW Gina faz. Você, por exemplo, quer fazer a revisão no motor? É só dizer “Gina, por favor abra o capô”, e ele se abrirá. Desta forma se faz tudo. Os faróis, são pequenos, mas podem ser ampliados se você falar “Gina, poderia aumentar um pouco os faróis?”, o carro te obedece. Outra coisa legal da BMW é a plataforma que pode mudar: por exemplo, atrás, eu preciso colocar um coisa mais alta, fale para Gina aumentar o porta-malas. Os bancos são sem apoio de cabeça, mas se quiser, ele cria encostos automaticamente! Isto tudo é o conceito Gina da BMW, o carro que te obedece.

the lobo side of my family

for a road trip to the city
family in a car with me

craving auntie mila’s gravy
playing with bella, char & cary’s baby

can’t wait to hear gina’s laughter
and joe’s jokes after

avoiding saying the prayer for grace
we’re all betting william’ll volunteer to do it if we each look away

i’m waiting for mom to appear at my door at any moment
but i’m spending some of thanksgiving hoping

for pancit, rice from a cooker, appretada,
honey ham, chop suey and lumpia

not hungry for a dinner or dessert
but for familial company, that’s for sure.

janice.

For our first full weekend in Thailand, we decided to get away. Most of our new acquaintances were heading northwest, to popular rural tourist town, Pai. We felt that joining them would be a blunder. Since we see them on a regular basis, we thought we should disembark, detox, and detour to some other remote Thai location. We wanted a place where we could experience the natural and fierce beauty of the north, a place we could be the only farang, a place away from the sound of traffic, we wanted Chiang Dao.

Now, I don’t want to give off the impression that this was a well thought out trip, an insightful choice. It was a) luck and b) just the product of being bad-asses (random success comes with the territory). We woke up Saturday morning to a knock on the door. It was Tom, our new amigo and fellow bad ass. “Get up, we are getting motorcycles” was all that was said, but it lit the fire. We packed a backpack, took a shower, and headed out. After securing motorcycles we headed to the nearest book store for inspiration and perhaps a map. Someone had a vague recollection of a particularly beautiful stretch of road that led to some picturesque villages that would be a perfect mission for our new biker gang. We hoped seeing some names on a map would help, it didn’t. So, Cengiz bought a map of the golden triangle, since it seemed to cover the immediate area north of Chiang Mai and we went to lunch, determined to figure out the itinerary while we fueled up for the day.

During lunch, we threw out the name of just about every city on the map and futilely debated over which to choose (since no one had any idea about any of them, I can’t believe this lasted as long as it did). Meanwhile, I shuffled through Gina’s Thailand guide (we were a foursome) and found mention of a “Pai without the party” (Pai is the popular “rural” get away, not too far from Chiang Mai, that now offers nightlife and any number of organized “adventures”) called Chiang Dao, directly north of Chiang Mai and situated under an impressive mountain. This sounded just as good as any other place we brainstormed and even had a recommendation to back it up, so the choice was easy, the bill was paid and we were off.

WAIT. Not quite. Cengiz just dumped the motorbike. OK, no blood or permanent damage? Now we’re off. It was tough getting out of the city. Thailand doesn’t do traffic lights very often, so there are lots of one way streets and turnarounds that make navigation difficult for a non-native. When you also add the adaptation of driving on the other side of the road and the lack of traffic laws in general, there is enough fear, adrenaline, and information thrown at a driver to freak out any first timer. So, being the overachiever that he is, Cengiz dumped it, AGAIN. This time there was blood, broken glass, and snapped metal, so we had to stop. After buying some really hilariously frivolous band aids, we were back on the road again (somehow the dangling break from the left handlebar was not a successful deterrent). To make sure the blood had as long as possible to ruin his socks and shorts, we were proceeding with extreme caution (and lack of speed), for the rest of the 3 hr. trip. To be honest, we were all a little rattled with the events (Cengiz was, after all, the only one of us to have been on a motorcycle) so the 45 km/hr cruising speed was widely accepted and actually turned out to be a great pace for cruising to the iPod speakers blaring UGK out of my cup holder.

The trip was going very well before our caravan was overcome by a true South East Asian rainstorm. As we were in the middle of nowhere when it hit, we have very few options and elected to brave the elements and press on. After about 20 minutes, the rain subsided, and we found ourselves cruising through a rain forest, rapidly drying in the wind. This is what we came for. The scenery was so beautiful that it was dangerous. It was difficult to keep your eyes on the road, which was also wet, and winding through a precipitous mountainside. Looking out over the trees, we saw mile upon mile of the lushest vegetation on the planet. At one point I found myself counting shades of greens as I scanned the canopy for monkeys. We slowed our pace to a crawl, the curves were intimidating and there was no reason to rush this stretch of road, especially once we found ourselves following a crooked river on our left.

Almost as soon as the picturesque stretch ended, we saw the signs we were looking for, so we followed with a right hand turn and enjoyed the 2 km to Chiang Dao. The city isn’t much. Which, I guess is the point. I ran into a Dutch Pirate (no joke) and he couldn’t recommend anywhere to stay or eat so we grabbed a beer at a local shop to rest our soar necks and hash out a plan for accommodations. I saw a sign for a home stay who’s name seemed familiar, so we scoured the Lonely Planet to confirm. They agreed, “Malee’s” was the place to go, 4 km back up the road we had come, situated right under the mountain.

The home stay was perfect. When we pulled in, we weren’t sure we had the right place, it seemed abandoned. Then, we were greeted by the hounds and a “receptionist.” After being showed some bungalow’s right out of a movie, we quickly payed the man for the night and got started on his refreshingly cold Chang beer collection. It was already pitch black, I could barely see Tom across the table, and after 3+ hrs en route, we were exhausted. Dinner was a distant thought, but one we thought should be heeded none the less. We hesitatingly asked if there would be dinner served that night, it was so dark we were sure it was going to be a difficult request. It was 6:00. Of course there would be dinner, if we could just wait for them to prepare the grill, it would be served within the hour.

The fresh local coals sparked like a pile of flint; the deep reds flying through the air against the pitch black were mesmorizing, like projectile magma from a personal volcano. Exhausted, the four of us faded into the dark silence, entranced by the visuals. We were broken from this moment of rest by a small creature scurrying round behind us in the dark. It jumped up and bit tom. It was a “Peter.” Now “Peters” are the rarest creature I have encountered. They resemble your standard 8 year old Germanic Thai, but they also speak French and English and are fluent in snake hissing, barking, and tiger growling. They climb with the agility of a chimp, can identify any vegetable in the garden, but particularly prefer bananas, and (as any cold blooded creature) enjoy curling up to warm bodies, specifically homestay guests. Peter was our entertainment for much of the night, biting bottles, bodies, and bananas and showing off his mastery of Muay Thai and genital crushing to anyone in his path, no matter the size. Peter’s mom, the unbelievable Malee, is unbelievably amazing. She not only speaks several languages, has a nack for decorating, runs the most efficient guest house I have ever been to, knows first aid, knows everything about the area, and makes friends with other people FOR you, she also has jokes. As she was brutally cleaning Cengiz’s wounds, she would remind him that there would be “no loving tonight, you have to stay off your knees” or that he should go to the hospital, not for medical care, but for “a sexy young nurse.”

After the wounds were cleaned up, we were served with heaping portions of pork cuts, chicken wings, fresh shrimp, squid, salad, pineapple, and a variety of magnificent, home made condiments. It was absolutely delicious. We spent the rest of the evening eating, drinking, meeting some fellow visitors, and figuring out that we should hit the sack so that we could be up and chipper for the 5:45 sunrise from Thailand’s most sacred place, the Wat atop the overshadowing mountain next to (and above) us.

Cengiz and I made it up the 500 stairs to the mountain, in pitch black, which was not easy. Most of the climbing was just keeping a rhythm. We couldn’t see the steps but knew the pace and length of each stride so as not to miss the next. Once up the steps we came to a wat, dug into the side of the rocks, with a look out tower lined with and guarded by Thai basilisks. We patiently waited for the sun to show, but were let down. The overcast skies left us with a gradual glow rather than any kind of “breaking of dawn.” However, we were alerted to the exact moment of the sunrise as we were lucky enough to hear th monk alarm clock. At exactly 5:45, when the sun started its rise, a loud high pitch sound crashed out of the jungle. Unwaveringly, it held its note as a symphony of other jungle sounds -chirps, croaks, howls, clicks- joined the note, like an orchestra tuning to the oboe. The morning went from a deafening silence, to an even more astounding roar of sound.

After taking some video and pictures, we headed back down to base camp. Tom was still struggling with the local stomach bug he picked up the evening before and Gina was playing with Peter. We mounted the bikes, loaded up some emergency TP, and took off for home. Cengiz regained his confidence so we ripped through the country side at nearly twice our previous speed. The rush was incredible and the weather couldn’t be more perfect. Along the way we randomly came upon an elephant, grazing near the side of the road. The beast’s hunger and resounding sense of power was intimidating and though it was docile and obliging to our attention, my heart was pounding and my spider senses activated to a state of hyper-alertness. After taking off again at breakneck speed, we found ourselves making ridiculously good time, good enough to warrant a detour at Shri Lanna National Park. We didn’t get to boat out into the lake to the floating house or uncover the park’s waterfalls, but it was a beautiful backdrop for some lunch and a break for our bike sore backs.

When we finally were getting into the city area, we reduces speed with the increased danger of the traffic and things stayed well… for a while. Rain once again started pounding the troupe as we were just entering the city’s center. It was uncomfortable, but we had ridden in it before so we pressed on. The city’s moat, which is now the center of the city’s main avenue, is easily the most difficult traffic for a first time rider. We cautiously entered the avenue and I made the turn to enter our final stretch before dropping the biks off. When I looked in my mirror, no one was following. I pulled over and waited for 5 minutes, hoping my comrades would be following shortly. Nothing. I assumed they took a different route, we had said “if all else fails, meet at the shop.” So, I headed there to drop my bike off and meet them. I was waiting long enough to get a table next door and order a beer. My stomach was beset with a pit the size of a watermelon- Cengiz dumped it on the wet turn and was in the hospital, I knew it. I waited for a solid 20 minutes until they finally rolled up. As Tom and Cengiz went to go settle up, Gina explained to me that Tom T-Boned a Tuk Tuk and flipped it. He was ok, and the tuk tuk driver survived with minor scrapes. A quick 1,000 baht bribe was sufficient to keep the police out of things. The damages to the two bikes cost a total of 600 baht, so financially it was no big deal. And, with everyone safe, we walked back to the hotel, laughing at the absurdity of our 50% casualty rate and enjoying the sheer sensation of relief that we made it back. Nostalgic musings about the paradise we enjoyed at “Malee’s” didn’t hinder the cloud 9 high either.

This week I chose the prompt 

3. Find a picture of a shoe that best sums up your personality.
-Inspired by the lovely Gabfran and her shoe-related blog, and Jo Beaufoix’s ‘Special’ Shoes

Now I adore shoes, I wouldn’t quite say they’re my raison d’etre but very close. It all stems from my mum who has probably a good 80-100 pairs of shoes, all kept in their boxes with descriptions on the front so she can see quite easily what & where they are. In direct contract to mine which are shoved in wardrobes, under the bed, under the wardrobe, behind the sofas, in a shoe hangy-uppy thing from Ikea, thrown around the bedroom/kitchen/lounge etc. I have a lot of shoes too. Probably getting on for 50-60 pairs. No Imelda Marcos but still a fair few.

I started buying shoes when I first put on weight. I couldn’t wear the clothes I wanted so I reflected my tastes and personality through my shoes. I wear very sensible, flat, black, boring shoes for work but at weekends and when I go out I love bright colours, wedges, heels, anything that stands out a little bit. My current favourites are silver snakeskin wedge sandals with black straps from Next for night and flat green sling backs with a wooden red ladybird on the front from Office about 7 years ago.

I buy shoes I know I’m not going to wear just because I love them (I’ve stopped doing this though now due to leack of funds). I have a sparkly pair of bright pink stilettos with purple piping that I fell in love with in the Schuh sale and had to have even though I knew I wouldn’t wear them. A pair of green knee high boots that look like Peter Pan boots from New Look. And these. My beautiful red, spotty, Irregular Choice heels with a toadstool on the front (main pic). I wore these to the pub once, crippled myself and now just wear them in the house and look in the mirror at how exquisite they are. I hate my feet but feel it necessary to adorn them in beautiful creations (preferably that show off my tattoos) for my viewing pleasure. I love to wear my Dorothy shoes (bright red glitter, pointed toe) from a cheap shop in Bolton, my ’special needs’ shoes as my sister called them, (flat white Mary Janes with pink pelicans all over them) from Office, my 70’s shoes (7 inch wedges, the front wedge alone is 2 inches! in brown suede with a bow) from Moda in Pelle. Any colour, any kind, any shop, any price. I love them all.

If money was no object I still don’t think I’d buy designer shoes. Occasionally I’ll lust after a pair of Jimmy Choos or Ginas that I see on celebs. I have fallen for the YSL Tribute pumps (thanks to Grazia for introducing me to these completely out of reach lovelies) but the shoes that get me going every time are Kurt Geigers. We have a KG shop 5 minutes from work which is just mean. I go and drool over shoes I can’t afford but that make me want to cry they’re that beautiful.

I don’t mean to wear strange coloured or designed shoes, I’m not projecting my ‘wacky’ personality, I just like bright colours and interesting shoes that few others do. My sister was moaning in Australia that she didn’t have shoes to match a new outfit my parents had just bought. I offered to GIVE her my much adored brown, studded gladiators from Next and she said no! She hates my shoes, favouring classic black sandals, Billabong flip flops (which I am admittedly converted too) and the ubiquitous crocs for work.

I’m struggling to find one pair of shoes that fits my personality. I have a number of guises for which different shoes are needed, mummy (black studded ballerinas), employee (boring black patent Mary Janes from M&S), student (my beloved cherry print Birkenstocks), wife (sensible  grey heels from M&S), friend (knee high black boots), piss head (any high wedges that are totally impractical but look fabulous!). Many Next shoes (my current favourite supplier) reflect my personality, especially these but if I had to choose 1 pair I’d go for these classic Kurt Geigers that I be thrilled to own.  They’re lovely, deceptively comfortable, slightly offbeat, stable and surprisingly cheap. Rather like me.

Updated Employment Poster, Policies & Procedures Required Immediately

Employers, unions, employment agencies, employment training agencies and their agents face significant new employment discrimination liability risks if they violate new genetic information-based employment non-discrimination or fail to comply with genetic information confidentiality requirements that took effect under Title II of the Genetic Information Nondiscrimination Act (GINA) on Saturday, November 21, 2009.  Employers need immediately to update their employment posters, carefully audit their existing records and practices to identify existing information and practices that may create special risks under GINA and take appropriate action to comply with the GINA rules. Employers needed an updated poster can find a copy on the Equal Employment Opportunity Commission website here.

Under the newly effective employment provisions of Title II of GINA, Federal law now prohibits employers of 15 or more employees and certain other entities from using individuals’ “genetic information” when making hiring, firing, job placement, or promotion decisions, requires “genetic information” be kept separately and confidential, and prohibits retaliation. 

When assessing their risk under GINA, employers should be careful not to overlook or underestimate the genetic information collected or possessed by their organizations and the risks attendant to this information.  Many employers will be surprised by the breadth of the depth of “genetic information.”   GINA defines “genetic information” broadly as including not only information about genetic tests about an individual or his family member as well as information about the “manifestation of a disease or disorder in family members of such individual.   GINA also specifies that any reference to genetic information concerning an individual or family member includes genetic information of a fetus carried by a pregnant woman and an embryo legally held by an individual or family member utilizing an assisted reproductive technology.  Pending issuance of regulatory guidance, GINA’s inclusion of information about the “manifestation of a disease or disorder in family members” is likely to present a liability trap door for many unsuspecting employers.

Failing to properly address GINA compliance could expose employers to substantial risk.  Violation of the employment provisions of Title II subjects an employer to potentially significant civil judgments like those that generally are available for race, sex, and other federal employment discrimination claims covered by the Civil Rights Act.  Accordingly, employers and others who have not already done so should act quickly to review and update their policies and procedures to manage their new compliance and liability exposures under GINA Title II.

While the agency responsible for construing and enforcing Title II of GINA, the Equal Employment Opportunity Commission (EEOC), to date has published only limited guidance about it, the absence of this final guidance should not be read by employers as a sign their compliance may be delayed.  While not yet issued in final form, proposed regulations interpreting Title II of GINA accessible here published by the EEOC in March, 2009  and a subsequently released factsheet accessible here published by the EEOC in May, 2009 titled “Background Information for EEOC Notice of Proposed Rulemaking On Title II of the Genetic Information Nondiscrimination Act of 2008” provide insights about how the EEOC may be expected to view its provisions.   While many employers have delayed taking action to update their policies and procedures in hopes that final guidance would be forthcoming before Title II took effect, time has now run out.  Accordingly, employers who have not already done so should act quickly to implement all necessary changes to position themselves to defend against a potential claim that their organization may have violated GINA Title II. 

Employment-Related Genetic Information Nondiscrimination Rules In Focus

Applicable to employers, unions, employment agencies, employment training agencies and their agencies based on genetic information by employers, Title II imposes sweeping prohibitions against employment discrimination based on genetic information.  Title II generally has three components:

Employment Discrimination Prohibited.  Section 202 of GINA makes it illegal for an employer:

• To fail or refuse to hire, or to discharge, any employee, or otherwise to discriminate against any employee with respect to the compensation, terms, conditions, or privileges of employment of the employee, because of genetic information with respect to the employee;
• To limit, segregate, or classify the employees of the employer in any way that would deprive or tend to deprive any employee of employment opportunities or otherwise adversely affect the status of the employee as an employee, because of genetic information with respect to the employee; or
• To request, require, or purchase genetic information with respect to an employee or a family member of the employee except as specifically permitted by GINA and otherwise applicable law.

GINA §§ 203 and 204 extend similar prohibitions to employment agencies, labor unions and training programs.

Confidentiality Mandates. Under GINA § 206, an employer, employment agency, labor organization, or joint labor-management committee that possesses genetic information about an employee or member must protect the confidentiality of that information.  Under its provisions, employers and other covered entities must:

•  Treat the genetic information as a confidential medical record of the employee or member and maintain it on separate forms and in separate medical files in the same manner as required for other medical records required to be maintained as confidential by Americans With Disabilities Act § 102(d)(3)(B); and
• Only disclose it in the narrow circumstances specifically allowed by GINA.

Anti-Retaliation.  GINA also prohibits retaliation or other discrimination against any individual because such individual has opposed any act or practice prohibited by GINA, for making a charge, testifying or assisting or participating in any manner in an investigation, proceeding, or hearing under GINA. 

GINA’s Additional Group Health Plan Nondiscrimination & Privacy Rules Also Require Attention

In addition to taking appropriate steps to comply with the employment rules of Title II of GINA, employers and their group health plan fiduciaries and service providers also should ensure that the group health plan has been appropriately updated to comply with the group health plan nondiscrimination and privacy mandates of Title I of GINA. 

Effective for all group health plan years beginning on or after May 21, 2009, GINA’s new restrictions on the collection and use of genetic information by group health plans added under Title I of GINA are accomplished through the expansion of a series of already existing group health plan nondiscrimination and privacy rules.  GINA’s group health plan provisions amend and expand the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the Employee Retirement Income Security Act of 1974 (ERISA), Title VII of the Civil Rights Act, the Public Health Service Act, the Internal Revenue Code of 1986, and Title XVIII (Medicare) of the Social Security Act to implement sweeping new federal restrictions on the collection, use, and disclosure of information that falls within its broad definition of “genetic information” by  group health plans.  For individual health insurers, GINA’s restrictions take effect May 22, 2009.  The broad definition of the term “genetic information” in GINA will require group health plan sponsors and insurers to carefully review and update their group health plan documents, communications, policies and practices to comply with forthcoming implementing regulations to avoid liability under new GINA’s rules governing genetic information collection, use, protection and disclosure in a series of areas.  

In this respect, wellness and disease management programs are likely to require special scrutiny and attention. GINA’s inclusion of information about the “manifestation of a disease or disorder in family members” raises potential challenges for a broad range of group health plan health assessment and other wellness and disease management programs which provide financial incentives or condition eligibility on the provision of family health histories or other information that could be construed as genetic information.  The implications of these GINA prohibitions are further complicated by recent changes in the disability nondiscrimination rules and guidance under the Americans With Disabilities Act.

Title I of GINA generally prohibits group health plans from collecting genetic information for underwriting or eligibility purposes.  It also expands already existing federal rules prohibiting group health plans from discriminating among individuals for purposes of determining eligibility or setting premiums based on health status previously enacted as part of HIPAA.   These existing rules already prohibit group health plans and health insurance issuers from discriminating based on health related factors including genetic information for purposes of determining eligibility or premiums. GINA expands these existing nondiscrimination requirements to further regulate group health plan’s use and collection of genetic information.   Under GINA’s nondiscrimination rules, group health plans and health insurers may not:

• Request, require or purchase genetic information for underwriting purposes or in advance of an individual’s enrollment;
• Adjust premiums or contribution amounts of the group based on genetic information;
• Request or require an individual or family member to undergo a genetic test except in limited situations specifically allowed by GINA;
• Impose a preexisting condition exclusion based solely on genetic information, in the absence of a diagnosis of a condition;
• Discriminate against individuals in eligibility and continued eligibility for benefits based on genetic information; or
• Discriminate against individuals in premium or contribution rates under the plan or coverage based on genetic information, although such a plan or issuer may adjust premium rates for an employer based on the manifestation of a disease or disorder of an individual enrolled in the plan.

GINA also prohibits insurers providing individual health insurance from establishing rules for eligibility, adjusting premiums or contribution amounts for an individual, imposing preexisting condition exclusions based on, requesting or requiring individuals or family members to undergo genetic testing.

Of particular concern to many plan sponsors and fiduciaries are the potential implications of these new rules on existing wellness and disease management features group health plans. Of particular concern is how regulators will treat the collection of family medical history and certain other information as part of health risk assessments used in connection with these programs. Although official guidance is still pending, many are concerned that regulators will construe certain commonly used practices of requiring covered persons to provide family medical histories or other genetic information through health risk assessments (HRAs) to qualify for certain financial incentives as a prohibited underwriting practice under GINA.  Even where health risk assessments are not used, however, most group health plan sponsors should anticipate that GINA will require specific amendments to their plan documents, communications and processes.

Taking timely action to comply with these nondiscrimination and collection prohibitions is important.  Under amendments to ERISA made by GINA, group health plan noncompliance can create significant liability for both the plan and its sponsor.  Participants or beneficiaries will be able to sue noncompliant group health plans for damages and equitable relief.  If the participant or beneficiary can show an alleged violation would result in irreparable harm to the individual’s health, the participant or beneficiary may not have to exhaust certain otherwise applicable Department of Labor administrative remedies before bringing suit.  In addition to these private remedies, GINA also authorizes the imposition of penalties against employers and other sponsors of group health plans that violate applicable requirements of GINA of up to $500,000. The minimum penalties generally are set at the greater of $100 per day or a minimum penalty amount ranging from $2,500 for de minimus violations corrected before the health plan received notice of noncompliance to $15,000 in cases in which the violations are more than de minimus.  GINA also includes language allowing the Secretary of Labor to reduce otherwise applicable penalties for violations that could not have been identified through the exercise of due diligence or when the plan corrects the violation quickly.

GINA Amendments To Health Plan Privacy Rules Under HIPAA

In addition to its nondiscrimination rules, GINA also amends HIPAA to make clear that “genetic information” as defined by HIPAA is protected health information protected by HIPAA’s Privacy & Security Standards of HIPAA. This means that it will require that all genetic information be treated as protected health information subject to the Privacy and Security Standards applicable to group health plans covered by HIPAA. Although the statutory provisions that accomplish these changes are deceptively simple, compliance with these requirements likely will require group health plans and their business associates to amend existing privacy policies, notices and practices to appropriately restrict disclosures for underwriting, operations and certain other uses to withstand scrutiny under the GINA privacy rule amendments. 

When contemplating these changes, many plan sponsors and administrators also will want to consider and begin preparing to comply with other refinements to their existing privacy and security practices required in response to HIPAA privacy and security rule amendments enacted as part of the HITECH Act provisions of the Health Information Technology for Economic and Clinical Health Act (“HITECH Act”) provisions of the American Recovery and Reinvestment Act of 2009 (ARRA).  As GINA specifies that violations of its privacy rule restrictions trigger the same sanctions as other privacy rule violations, group health plans and their business associates also should give due consideration to these penalty exposures.  The HITECH Act amended and increased civil penalties for HIPAA privacy violations in many circumstances effective February 17, 2009.  

GINA’s fractured assignment of responsibility and authority to develop, implement and enforce regulatory guidance of its genetic information rules can create confusion for parties involved in compliance efforts. Because the group health plan requirements of Title I of GINA are refinements to the group health plan privacy and nondiscrimination rules previously enacted as part of HIPAA, GINA specifically assigned authority to construe and enforce its group health plan requirements to the agencies responsible for the interpretation and enforcement of those original rules:  (1) the Department of Labor Employee Benefit Security Administration (EBSA); (2)  the Internal Revenue Services (IRS), and (3) the Department of Health & Human Services. 

These three agencies in early October published the interim final regulations construing the group health plan manatees of Title II of GINA, which are available for review here.  Group health plans, their employer and other sponsors, fiduciaries and service providers should act quickly to review and update their group health plan documents, procedures and other materials to comply with these new mandates.

Cynthia Marcotte Stamer and other members of Curran Tomko and Tarski LLP are experienced with advising and assisting employers with these and other labor and employment, employee benefit, compensation, and internal controls matters. If your organization needs assistance with assessing, managing or defending these or other labor and employment, compensation or benefit practices, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer.  Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization and Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group and a nationally recognized author and speaker, Ms. Stamer is experienced with assisting employers and others about compliance with federal and state equal employment opportunity, compensation, health and other employee benefit, workplace safety, and other labor and employment laws, as well as advising and defending employers and others against tax, employment discrimination and other labor and employment, and other related audits, investigations and litigation, charges, audits, claims and investigations by the IRS, Department of Labor and other federal and state regulators. Ms. Stamer has advised and represented employers on these and other labor and employment, compensation, health and other employee benefit and other personnel and staffing matters for more than 22 years. Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly.   For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

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©2009 Cynthia Marcotte Stamer. All rights reserved. 

On Friday, I got together with Gina.  She’s so beautiful.  Light red hair.  Fair skinned.  Killer smile.  Yum. 

We  met at her house for “lunch.”  Sweet thing had sandwiches and mimosas made for us.  We were smooching over bites of  ham and turkey, then decided to take our champagne cocktails upstairs for playtime.  She dropped the beautiful robe, that she chose to wear for me, on the floor.  There was this beautiful woman standing in front of me.  Dang.  How did I get so lucky?

She swiftly undressed me and asked me to put my naughty boots back on – just for fun!  “I want to have you for dessert, baby,” she said, pushing me back on the bed.  Her soft lips began kissing the inside of my legs, just above the tops of my boots.  Each smooch went higher and higher and each one was slightly wetter than the one before it.  Her hands reached up to hold mine as she inched closer to my warm, waiting pussy.  Oh, that mouth.  She is new to the girl thing, but she has learned so much in such a short period of time.  She didn’t do the flicking of my clit – right out of  the gate (which I can’t stand).  She licked and ate my pussy like a piece of fruit, savoring every drop.  It was so sensuous.  Yum!

She reached over to the night stand and grabbed her Rabbit.  I have never used one of these, nor was I interested…it’s just too big and mechanical.  Gina assured me that she was an expert and that I would be pleased.  She slipped it in my dripping snatch and turned it on.  I don’t know what she did, but, by God, it rocked me HARD.  I swear that I leapt off of the bed. (I gotta get one of those things.)

I wanted to explore her body and taste every inch of her, but I was stopped. “YOU are the only thing on the menu, for lunch.”  Hooooweeee!  This woman shook me for two more hours.  I had to go pick up the kids from the bus stop with freshly fucked hair and no makeup – it was all over the sheets.

“Wow.  You look like you just came from the gym,” said “Uber Mommy.” 

“Yep.  Quite a work out!”

Do you know what happened on 11/21/2009?

Nearly 47 years earlier everyone remembered what happened that day, 11/22/1963, the day JFK was assassinated. 11/21/2009 is a day of great importance, but this day went unnoticed by the vast majority of the United States.

Why was this date so important? One word – GINA.

On a day when mammogram testing and health care legislation dominated the news GINA went unnoticed. GINA, though having little impact on our current day to day lives, may have an even larger impact on society than the topics that dominated the news. Who is GINA? GINA is not actually a person, but rather an acronym for the “Genetic Information Nondiscrimination Act” of 2008, which took affect on 11/21/2009. Employees are now protected against genetic discrimination as part of the Equal Employment Opportunity Commission, joining categories such as race and age.

The idea that a company could test employees genetic information may sound like science fiction, especially for those who have seen the movie GATTACA, but like some other science fiction ideas given technological advances and time fiction can become non-fiction. On 10/09/2005 IBM became the first company to initiate a policy against discrimination based on genetic information. In 2007 IBM lobbied congress to pass the Genetic Information Nondiscrimination Act. On 10/06/2009, nearly four years from when IBM announced its discrimination policy, IBM releases a press release on their technological advances in DNA transistors. The DNA transistors could lower the cost of human DNA testing from $2.7 billion (Human Genome Project) to a range of $100 to $1,000.

At the $1,000 price point DNA testing can become affordable for millions of people, resulting in ‘personalized medicine‘ and increased awareness of genetic cancer risks. Mammograms are the best current technology have to detect breast cancer, but by no means is it the best possible technology as there are concerns on false positives. DNA testing could be the technology that replaces (or at worst supplements) mammograms, changing the way society thinks, acts and lives.

In order for most nonprofits to bring about systemic change they need to form coalitions or have an advocacy component. Private charities (foundations) aside, nonprofits are allowed to lobby within certain limits. In 1995 the first proposal to protect against genetic discrimination was made in the house. In 1997 the Coalition for Genetic Fairness was formed, consisting originally of civil rights, disease-specific and health care organizations. In 2005 the coalition expanded to include industry groups and employers. On May 21, 2008 GINA was passed, the coalition having united more than 500 organizations and thousands of individuals.

Change does not happen over night. There are many important factors such as patience, stakeholder management, communication, burning platforms, luck and leadership. Currently nonprofits are working to protect employers from discrimination based on sexual preference and gender identify. According to the ACLU

“Firing or refusing to hire someone because they are gay or lesbian is legal in 29 states. And job discrimination against people based on gender identity is legal in 38 states.”

While the passing and effective dating of the GINA legislation should be remembered and celebrated, there is still a lot of work to do make shaping our government to be of the people, by the people and for the people.

Do you know what happened on 11/21/2009?

Nearly 47 years earlier everyone remembered what happened that day, 11/22/1963, the day JFK was assassinated. 11/21/2009 is a day of great importance, but this day went unnoticed by the vast majority of the United States.

Why was this date so important? One word – GINA.

On a day when mammogram testing and health care legislation dominated the news GINA went unnoticed. GINA, though having little impact on our current day to day lives, may have an even larger impact on society than the topics that dominated the news. Who is GINA? GINA is not actually a person, but rather an acronym for the “Genetic Information Nondiscrimination Act” of 2008, which took affect on 11/21/2009. Employees are now protected against genetic discrimination as part of the Equal Employment Opportunity Commission, joining categories such as race and age.

The idea that a company could test employees genetic information may sound like science fiction, especially for those who have seen the movie GATTACA, but like some other science fiction ideas given technological advances and time fiction can become non-fiction. On 10/09/2005 IBM became the first company to initiate a policy against discrimination based on genetic information. In 2007 IBM lobbied congress to pass the Genetic Information Nondiscrimination Act. On 10/06/2009, nearly four years from when IBM announced its discrimination policy, IBM releases a press release on their technological advances in DNA transistors. The DNA transistors could lower the cost of human DNA testing from $2.7 billion (Human Genome Project) to a range of $100 to $1,000.

At the $1,000 price point DNA testing can become affordable for millions of people, resulting in ‘personalized medicine‘ and increased awareness of genetic cancer risks. Mammograms are the best current technology have to detect breast cancer, but by no means is it the best possible technology as there are concerns on false positives. DNA testing could be the technology that replaces (or at worst supplements) mammograms, changing the way society thinks, acts and lives.

In order for most nonprofits to bring about systemic change they need to form coalitions or have an advocacy component. Private charities (foundations) aside, nonprofits are allowed to lobby within certain limits. In 1995 the first proposal to protect against genetic discrimination was made in the house. In 1997 the Coalition for Genetic Fairness was formed, consisting originally of civil rights, disease-specific and health care organizations. In 2005 the coalition expanded to include industry groups and employers. On May 21, 2008 GINA was passed, the coalition having united more than 500 organizations and thousands of individuals.

Change does not happen over night. There are many important factors such as patience, stakeholder management, communication, burning platforms, luck and leadership. Currently nonprofits are working to protect employers from discrimination based on sexual preference and gender identify. According to the ACLU

“Firing or refusing to hire someone because they are gay or lesbian is legal in 29 states. And job discrimination against people based on gender identity is legal in 38 states.”

While the passing and effective dating of the GINA legislation should be remembered and celebrated, there is still a lot of work to do make shaping our government to be of the people, by the people and for the people.

Comença la setmana d’El crepuscle encén estels · IB3 Ràdio, 21:00 · amb el programa 448, en el qual ens visitarà GINA SAS, llicenciada en Hª de l’Art i crítica del Diario de Mallorca, per a parlar de la relació entre LA DONA I L’ART, amb exemples com l’obra de la nordamericana Kiki Smith, presentada la passada primavera a la Fundació Joan Miró de Barcelona. En el blog de Gina Sas trobareu més informació de la seva instal·lació Her Memory, però també hi ha els seus darrers escrits sobre la mostra de Joana Vasconcelos a l’Ajub d’Es Baluard de Palma. Són 428 mòduls de 3 flors de fibra de nylon il·luminades a través d’un dispositiu interior; he dit 428? Tenim temps fins el mes de febrer, però si hi anam demà se’n compleixen precisament 20 dies de la inauguració. Si afegim aquests 20 als 428 mòduls tendrem …448

…448, ja ho val, com Crepuscles comptam fins el dia d’avui.

· IB3 ràdio en directe ·

http://streaming01.ib3radio.com:8000/ib3radio.mp3

The Genetic Information Non-Discrimination (GINA) Act takes effect today and according to experts on the law, will prohibit employers from reviewing Facebook etc. for information about a job candidate’s genetic information.

S.1796, America’s Healthy Future Act of 2009 Reflects Chairman’s Response To House’s Passage of HR 3962 & Other Feedback

Senate Finance Committee Chairman Max Baucus (D-MT) today (November 19, 2009) introduced his latest health care reform proposal, the America’s Healthy Future Act of 2009 (S.1796).  Chairman Baucus’ introduction of S. 1796 follows the November 7, 2009 passage by the U.S. House of Representatives of the massive health care reform proposal sponsored by Representative John Dingell (D-MI) and supported by Speaker Nancy Pelosi, the Affordable Health Care for America Act (HR. 3962).

Totaling 1504 pages in length, S.1796 proposes a lengthy and complex array of reforms to the U.S. health care coverage and delivery system, which would affect virtually each U.S. employer, health care provider, payer, and resident. As with the provisions of HR. 3962 and other versions of health care reform, the reforms outlined in the provisions of S.1796 include complexities and nuances which may not be apparent in partisan or non-partisan discussions or summaries of its goals or purposes. Consequently, individuals or businesses concerned about the proposed reforms are encouraged to begin and base their review and analysis on the actual text of S.1796, a copy of which as introduced is available for review here.  

The continuing emphasis of President Obama and other members of the Democratic Party Leadership in Congress on the passage of health care reform means that Senator Baucus and other Democratic Leaders in Congress are likely to continue to make passage of health care reform a priority.  U.S. businesses and individuals concerned about the proposed reforms should carefully review both the Senate and House bills and act quickly to provide their input on any matters of special interest and concern.

Selected Health Coverage Reform Highlights

Among other things, S.1796, as introduced, would enact sweeping health insurance coverage reforms that would create new obligations for employers, insurers, and individual workers.  In this respect, S.1796, among other things would:

• Amend the Social Security Act (SSA) to add a new title XXII (Health Insurance Coverage) to ensure that all Americans have access to affordable and essential health benefits coverage.
• Require all health benefits plans offered to individuals and employers in the individual and small group market to be qualified health benefits plans (QHBPs).
• Amend the Internal Revenue Code to: (1) allow tax credits related to the purchase of health insurance through the state exchanges; and (2) impose an excise tax on individuals without essential health benefits coverage and on employers who fail to meet health insurance coverage requirements with respect to their full-time employees.
• Prohibit QHBP from excluding coverage for preexisting conditions, or otherwise limiting or conditioning coverage based on any health status-related factors.
• Require QHBPs to offer coverage in the individual and small group markets on a guaranteed issue and guaranteed renewal basis.
• Amend the cafeteria plan rules of Internal Revenue Code § 125 to, among other things, require that in order for a health flexible spending arrangement (HFSA) to qualify as a qualified benefit eligible to be offered under a cafeteria plan, the cafeteria plan must limit the maximum salary reduction contribution per employee per taxable year to $2,500 beginning in 2011.
• Increase the threshold for the itemized income tax deduction for medical expenses.
• Require states to: (1) establish rating areas; (2) adopt a specified risk adjustment model; and (3) establish transitional reinsurance programs for individual markets.
• Require QHBP offerors in the individual and small group markets to consider all enrollees in a plan to be members of a single risk pool.
• Require the Secretary of Health and Human Services (HHS) to establish: (1) risk corridors for certain plan years; (2) high risk pools for individuals with preexisting conditions; (3) a temporary reinsurance program for retirees covered by employer-based plans; and (4) a program under which a state establishes one or more QHBPs to provide at least an essential benefits package to eligible individuals in lieu of offering coverage through an exchange.
• Entitle a qualified individual to the choice to enroll or not to enroll in a QHBP offered through an exchange covering the individual’s state as well as QHBPs in the individual market while at the same time requiring that such individuals to be U.S. citizens or lawful residents.
• Require each state to establish: (1) an exchange designed to facilitate enrollment in QHBPs in the individual market; and (2) a Small Business Health Options Program (SHOP) exchange designed to assist qualified small employers in facilitating the enrollment of their employees in QHBPs in either the individual or the small group market.
• Direct the Secretary to: (1) establish a system allowing state residents to participate in state health subsidy programs; and (2) study methods exchange QHBPs can employ to encourage health care providers to make increased meaningful use of electronic health records.
• Dictate the mandated contents of an essential health benefit benefits package, including little or no cost-sharing, no annual or lifetime limits on coverage, and preventive services.
• Amend the Internal Revenue Code to codify and revise the Health Insurance Portability and Accountability Act of 1996 (HIPAA) wellness program regulations.
• Amend the Internal Revenue Code to codify and revise the Health Insurance Portability and Accountability Act of 1996 (HIPAA) wellness program regulations.
• With regard to abortions: (1) declare that the Act does not require health care benefits plans to provide coverage for abortions; prohibit QHBPs from discriminating against any individual health care provider or health care facility because of its willingness or unwillingness to provide, pay for, provide coverage of, or refer for abortions; (3) continues application of state and federal laws regarding abortion; (4) prohibit the use of premium credits and cost-sharing subsidies for QHBPs covering abortion services for which federal funding is prohibited; (5) require the plan offeror to determine whether or not the plan provides coverage of abortion services for which federal funding is prohibited or is allowed; and  (6) require the Secretary to assure that at least one QHBP covers abortion services for which federal funding is prohibited or allowed; and at least one QHBP that does not cover abortion services for which federal funding is allowed.

Other Selected Health Care System, Reimbursement & Other Reform Highlights

S.1796 also would expand and modify existing Medicare, Medicaid, CHIP and other federal health care programs and enact a host of other new rules and requirements affecting health care providers, drug companies and other participants in the U.S. health care system.  Other proposed reforms include provisions that would:

• Require the President to: (1) certify annually in the President’s Budget whether or not the provisions in this Act will increase the budget deficit in the coming fiscal year; and (2) instruct the HHS Secretary and the Secretary of the Treasury to make required reductions in exchange credits and subsidies.
• Establish a new mandatory eligibility category under SSA title XIX (Medicaid) for all non-elderly, nonpregnant individuals who are otherwise ineligible for Medicaid.
• Revise Medicaid benefits.
• Rescind funds available in the Medicaid Improvement Fund for FY2014-2018.
• Make appropriations for Aging and Disability Resource Center initiatives.
• Increase the federal medical assistance percentage (FMAP) for states to offer home and community-based services as a long-term care (LTC) alternative to nursing homes.
• Create a Community First Choice Option.
• Add a new optional categorically needy eligibility group to Medicaid for individuals: (1) with income that exceeds 133% of the poverty line; and (2) certain other individuals, but only for benefits limited to family planning services and supplies.
• Direct the Secretary to establish a grants program to support school-based health centers.
• Remove smoking cessation drugs, barbiturates, and benzodiazepines from Medicaid’s excluded drug list.
• Revise requirements for Medicaid disproportionate share hospital (DSH) payments.
• Direct the Secretary to establish a Federal Coordinated Health Care Office within the Centers for Medicare & Medicaid Services (CMMS).
• Direct the Secretary to establish a Medicaid Quality Measurement Program.
• Revise requirements for the Medicaid and CHIP Payment and Access Commission (MACPAC) under SSA title XXI, Children’s Health Insurance Program.
• Set forth special rules relating to American Indians and Alaska Indians.
• Require the Secretary to establish procedures for sharing data collected under a federal health care program on race, ethnicity, sex, primary language, type of disability, and related measures and data analyses.
• Amend SSA title V with respect to the Maternal and Child Health (MCH) block grant program.
• Provide funding for abstinence education.
• Incorporate reforms originally proposed under the Elder Justice Act of 2009 pursuant to which amendments would be made to the provisions of SSA title XX relating to Block Grants to States for Social Services with respect to elder abuse, neglect, and exploitation and their prevention.
• Establish within the Office of the Secretary an Elder Justice Coordinating Council.
• Direct the Secretary to establish a hospital value-based purchasing program under Medicare.
• Extend the Medicare Physician Quality Reporting Initiative program (PQRI) incentive payments beyond 2010.
• Modify the Physician Feedback Program.
• Require the Secretary to develop a plan to implement a Medicare value-based purchasing program for home health agencies and skilled nursing facilities (SNFs).
• Amend SSA title XVIII (Medicare) to direct the Secretary to establish a national strategy to improve the delivery of health care services, patient health outcomes, and population health.
• Direct the President to convene an Interagency Working Group on Health Care Quality.
• Amend the General Provisions of SSA title XI to provide for the establishment of a Center for Medicare and Medicaid Innovation within CMMS.
• Amend SSA title XVIII to direct the Secretary to establish a shared savings program that promotes accountability for a patient population and coordinates items and services under Medicare parts A (Hospital Insurance) and B (Supplementary Medical Insurance).
• Create a Hospital Readmissions Reduction Program.
• Direct the Secretary to establish a Community-Based Care Transitions Program.
• Revise requirements with respect to residents in teaching hospitals.
• Increase the Medicare physician payment update.
• Direct the Secretary to establish a Working Group on Access to Emergency Medical Care.
• Extend the Medicare-Dependent Hospital Program.
• Amend the Tax Relief and Health Care Act of 2006 with respect to the hospital wage index.
• Establish a Medicare prescription drug discount program for brand-name drugs for beneficiaries who enroll in Medicare part D (Voluntary Prescription Drug Benefit Program) and have drug spending that falls into the coverage gap.
• Establish an independent Medicare Commission to reduce the per capita rate of growth in Medicare spending.
• Amend SSA title XI to add a new part D, Comparative Effectiveness Research, under which would be established a Patient-Centered Outcomes Research Institute.
• Establish in the Department of Treasury the Patient-Centered Outcomes Research Trust Fund.
• Establish a nationwide program for national and state background checks on direct patient access employees of long term care facilities and providers.
• Direct the Secretary to establish new procedures for screening providers of medical or other items or services and suppliers under the Medicare, Medicaid, and CHIP programs.
• Direct the Secretary to establish a self-referral disclosure protocol to enable health care service providers and suppliers to disclose violations.
• Requires the Secretary to expand the number of areas included in Round Two of the durable medical equipment (DME) competitive bidding program.
• Extend the period for collection of overpayments due to fraud.
• Amend the Internal Revenue Code with respect to: (1) an excise tax on the excess benefit of high cost employer-sponsored health coverage; (2) distributions from health savings accounts for drugs and insulin that are prescribed drugs and insulin only; (3) a limitation on salary reduction contributions by employers to a health flexible spending arrangement; (4) expanded information reporting requirements; (5) additional qualifying requirements for charitable hospital organizations; and (6) a qualifying therapeutic discovery project tax credit.
• Impose annual fees on: (1) manufacturers and importers of branded prescription pharmaceuticals or of medical devices; and (2) health insurance providers.
• Prescribe a special rule to limit excessive remuneration by certain health insurance providers.
• Exclude from an individual’s gross income the value of any qualified Indian health care benefit.

Monitoring & Responding To Health Care Reform Proposals

As was the case with HR. 3962, members of the Senate are likely to debate and weigh a variety of amendments and refinements to the provisions of S.1796 as it deliberates its enactment.  If you or someone else you know would like to receive updates about health care reform proposals and other related legislative, regulatory, and enforcement developments, please:

• Register for this resource at the link above;
• Join the Coalition for Responsible Health Policy group at linkedin.com to share information and input and join in other dialogue with others concerned about health care reform;
• Share your input by communicating with key members of Congress on committees responsible for this legislation and your elected officials directly and by actively participating in and contributing to other like-minded groups; and
• Be sure that we have your current contact information – including your preferred e-mail- by creating or updating your profile at here. 

If you have questions about or need assistance evaluating, commenting on or responding to health care or other legislative or regulatory reforms, or any other employment, compensation, employee benefit, workplace health and safety, corporate ethics and compliance practices, concerns or claims, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment/Employee Benefits  Practice Chair Cynthia Marcotte Stamer. 

Ms. Stamer has more than 22 years of experience advising and assisting business, government and other clients to evaluate and respond to health care, pension reform, workforce and other proposed or adopted changes in federal or state health care, employee benefit, employment, tax and other federal and state laws.  A member of the leadership council of the American Bar Association Joint Committee on Employee Benefits, Chair of the ABA Real Property, Probate & Trust Section and Employee Benefits & Compensation Group and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group Ms. Stamer is highly regarded legal advisor, policy advocate, author and speaker recognized both nationally and internationally for her more than 20 years of work assisting U.S. public and private employers, health care providers, health insurers, and a broad range of other clients to respond to these and other health care, employee benefit and workforce public policy, regulatory and compliance and risk management concerns within the U.S. as well as internationally.  Her work includes extensive involvement providing input and assistance about health care, workforce, pensions and social security and other reforms domestically and internationally.  In addition to her continuous involvement in U.S. health care, pensions and savings, and workforce policy matters, Ms. Stamer has served as an advisor on these matters internationally.  As part of this work, she served as a lead advisor to the Government of Bolivia on its social security reform as well as has provided input on ethics, medical tourism, workforce and other reforms internationally.

In addition to her extensive work on health and other employee benefit matters, Ms. Stamer also is Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization and has continuously has advised and represented employers and others on labor and employment, compensation, employee benefit and other personnel and staffing matters throughout her career. Ms. Stamer is experienced with assisting employers and others about compliance with federal and state equal employment opportunity, compensation and employee benefit, workplace safety, and other labor and employment, as well as advising and defending employers and others against tax, employment discrimination and other labor and employment, and other related audits, investigations and litigation, charges, audits, claims and investigations by the IRS, Department of Labor and other federal and state regulators. Ms. Stamer is a widely published author and popular speaker on health plan and other human resources, employee benefits and internal controls issues.   Her work has been featured and published by the American Bar Association, BNA, SHRM, World At Work, Employee Benefit News and the American Health Lawyers Association.  Her insights on human resources risk management matters have been quoted in The Wall Street Journal, the Dallas Business Journal, Managed Care Executive, HealthLeaders, Business Insurance, Employee Benefit News and the Dallas Morning News.

If your organization needs assistance with monitoring, assessing, or responding to these or other health care, employee benefit or human resources reforms,  please contact Ms. Stamer via e-mail here, or by calling (214) 270-2402.  For additional information about the experience, services, publications and involvements of Ms. Stamer specifically or to access some of her many publications, see here. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

We hope that this information is useful to you. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information here or registering to participate in the distribution of our Solutions Law Press HR & Benefits Update distributions here.  Some other recent updates that may be of interested include the following, which you can access by clicking on the article title:

Proposed Chemical Facility Anti-Terrorism Bill Would Obligate Chemical Facilities To New Background Check, HR & Other Safety & Security Safeguards

IRS Rules For Employer Reporting Of Wages Paid to Nonresident Alien Employees Performing Services In U.S. Change

House Passes Affordable Health Care For America, Health Care Reform Debate Focus Now Moves To The Senate

SHRM Tells Members Say “NO!” To Pelosi-Backed Health Care Reform

IRS Updates Procedures Qualifying Small Employers Can Use To Qualify To Report Employment Taxes Annually Rather Than Quarterly

OSHA Proposes To Change Hazard Communication Standard

IRS Proposes Changes In Actuarial Enrollment Standards For Performance of Actuarial Services Under the Employee Retirement

EEOC Prepares To Broaden “Disability” Definition Under ADA Regulations

IRS Proposes To Update Regulations On Exclusion of Damages Received on Account of Personal Physical Injuries or Physical Sickness To Eliminate Tort Test

OSHA Final Rule Updates OSHA Personal Protective Equipment Standards

DOL Proposes Changes To H-2A Temporary & Seasonal Agricultural Nonimmigrant Worker Certification Procedures & Related Rules

ADAAA Amendment Broader ADA “Disability” Definition Not Retroactive, Employer Action Needed To Manage Post 1/1/2009 Risks

New Study Shares Data On Migrant Health Care Challenges Along The Border

Employer & Other Health Plans & Other HIPAA-Covered Entities & Their Business Associates Must Comply With New HHS Health Information Data Breach Rules By September 23

HHS Reassignment Of HIPAA Enforcement Duties Signals Rising Seriousness of Enforcement Commitment

Speak Up America: Where & How To Read & Share Your Feedback About The Health Care Reform Legislation

For important information concerning this communication click here.   If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

©2009 Cynthia Marcotte Stamer. All rights reserved. 

by Carol Selvey

This week, my sister greeted me with a hand-written medical history our mother wrote when she entered a clinical trial for melanoma in 2005. It was the only record we had. She fought valiantly, but melanoma took our mother’s life in 2007, following participation in a clinical trial. By the time she was considered for the trial, she had little concern about her own privacy rights. My father had also readily shared his medical history. When he enlisted in the Marines, he admitted to having high blood pressure and a slipped disk in his spine, but they thought he was faking it so they accepted him; he was honorably discharged a few months later when he suffered temporary paralysis in basic training. After a life-long battle with hypertension, he succumbed to a heart attack at 42.

While not true “genetic” information, I have always freely shared my family medical history, even though it suggests that I may be genetically predisposed to cancer or cardiovascular disease. I never dreamed such information might impact my ability to receive medical benefits, but there is considerable concern about patient privacy and how sharing confidential medical history data may put consumers at risk.

In October, the Office for Civil Rights (OCR) proposed a rule that expanded the privacy and confidentiality protections in the Genetic Information Nondiscrimination Act (GINA).  GINA was originally enacted in May 2008, to promote non-discrimination in healthcare coverage and employment and defines genetic information as protected under the HIPAA Privacy Rule. It prohibits the use of genetic information in underwriting, determining benefits or eligibility, calculating premiums or contribution amounts, or imposing pre-existing condition exclusions. Despite its good intentions, the Disease Management Association of America:  The Care Continuum Alliance has protested that the rule impedes the ability of health plans to implement wellness and chronic disease management programs.

There must be a better way to protect our privacy rights while furthering the advancement of medicine. Our data cannot simply be locked away somewhere privately if it is going to be useful in developing clinical protocols and advancing evidence based medicine. Just recently we learned Kareem Abdul-Jabbar has a rare form of leukemia. USA Today reported that “Normally private, he said he had no qualms about taking his health issue public.” Abdul-Jabbar said “Early detection and treatment really are the keys for anyone who has to deal with this condition…I wanted to educate people about how modern medicine works.” You can even look for his updates on Twitter at http://twitter.com/kaj33 and Facebook at http://bit.ly/1nmPTn.

Like my mother, Abdul-Jabbar is ready to share his experiences with others to help educate and hopefully ease some of the anxiety about the disease. So wouldn’t it be nice to have the ability to share what personal medical information you want, when you want and with whom? That would mean that you could participate in a clinical trial, continue to learn about new ways to treat your condition and further medical knowledge about it, but not make it known to the general public. Such privacy controls have been made possible by Private Access (https://www.privateaccess.info/), an advanced technology company that offers a consumer-centric platform allowing individuals to selectively provide access to confidential and sensitive personal information. It gives the consumer the ability to “control who can, and cannot, see all or selected parts of his or her personal information.” So while the debate over GINA continues, Patient Access makes it possible for patients to decide what information will and will not be shared and when.

How’d you stay alive up here all by yourself for so long?

Cistern?

Huh. I guess this place is pretty old. Didn’t even think of ‘em having one of those here.

What about food?

You know, I forgot all about high tide cuttin’ this place off from the mainland . Yeah, them zombies can’t swim for shit. So how many hours a day you got to go out and catch you something?

Good thing me ‘n Old Joe used to take you out fishin’ so much when you was a kid. Looks like it really paid off.

You’re right about that.

That and the other thing’s probably about the only reason them bastards kept you alive.

By Edwin S. Hopson

The U.S. Equal Employment Opportunity Commission (EEOC) has revised its Notice to Employees poster that all employers with 15 or more employees must post. The poster was revised to include information about the Genetic Information Nondiscrimination Act of 2008 which is effective November 21, 2009, as well as the Americans with Disabilities Act Amendments Act of 2008.  The EEOC website link to be used to order the new poster on line is:

http://archive.eeoc.gov/posterform.html

According to the EEOC press release, there are several ways for employers to comply with the posting requirements of the law:

1. Print the supplement below and post it alongside EEOC’s September 2002 “EEO is the Law” poster or OFCCP’s August 2008 “EEO is the Law” poster.

2. Print and post the EEOC’s November 2009 version of the “EEO is the Law” poster.

3. Order a new poster through the EEOC Clearinghouse at the address provided below. Please note that the EEOC poster is on backorder and will be shipped when the poster becomes available in the near future.

The new poster will also be available in Spanish, Chinese and Arabic before the GINA statute becomes effective on November 21, 2009.

If you need more than ten copies of the poster, you should contact:

U.S. Equal Employment Opportunity Commission Clearinghouse

P.O. Box 541

Annapolis Junction, MD 20701

Fax: (301) 206-9789 or call: 1-800-669-3362 (voice) 1-800-800-3302 (TTY)

To order the poster, complete and submit the form contained on the EEOC website link referenced above.

Oh, sweet leaping Christ! Can this be true?

Never thought I’d live to see the day.

Gina?

Is that really you?

Well, get over here and give me a hug, then. You look like shit, girl.

You wasn’t here when those helicopter guys got here, were you?

They didn’t hurt you, did they?

What?

Holy Christ!

Every one of ‘em?

God damn it!

God damn it, I wish I could bring those sons of bitches back to life, just so I could kill ‘em again!

Twice!

No, three times!

A hundred times!

All right, all right!

I’m calm now.

Get your goddamned hands off me, Hawk.

I’m calm now.

I just can’t believe somebody could do such a thing to such a sweet kid, is all.

By the way, Hawk? Wil? Kids?

This here’s my niece, Gina.

Lo invidio!!!

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