Category Archives: Laws/Legislation

Employee Benefits—Proposed Regulations Provide Employers with More Flexibility in Offering HRAs to Employees

Source: Mark E. Bokert and Alan Hahn, Employee Relations Law Journal, Vol. 45, No. 1, Summer 2019
(subscription required)

From the abstract:
The Departments of Treasury, Labor, and Health and Human Services jointly issued proposed regulations (the “Proposed Regulations”) providing employers with greater flexibility in offering health reimbursement arrangements (“HRAs”) to employees. Importantly, if the Proposed Regulations are finalized in substantially its current form, employers would be able to offer employees an HRA that “integrates with” individual health insurance coverage. As a result, these Proposed Regulations, in essence, would enable employers to offer HRAs in lieu of a traditional group health plan to their employees. Additionally, the Proposed Regulations set forth conditions under which an HRA can be recognized as a limited excepted benefit HRA, which provides employers with another vehicle to provide employee benefits to their employees.

The Proposed Regulations are set to take effect for plan years beginning on and after January 1, 2020, although this is dependent on the regulations being finalized. The deadline for submitting comments on the Proposed Regulations was December 28, 2018.

The Courts Won’t End Gerrymandering. Eric Holder Has a Plan to Fix It Without Them.

Source: Ari Berman, Mother Jones, July/August 2019

While Democrats are fixated on 2020, Holder is fighting for fairer maps in 2021 and beyond. ….

….So Holder is pursuing a new strategy, trying to elect down-ballot candidates who can deliver fairer maps and voting laws. The NDRC invested $350,000 in the Wisconsin Supreme Court race, hoping that a liberal majority on the seven-­member court might strike down any egregious gerrymanders in the next round of redistricting in 2021. “I don’t think that 10 years or so ago, you would have a former attorney general campaigning for a state Supreme Court justice,” Holder told me. “This is a recognition on the part of the Democratic Party, on the part of progressives, that we need to focus on state and local elections to a much greater degree than we have in the past.”

But if Democrats are belatedly recognizing this need, few besides Holder are acting on it. He is playing a long game in a party driven by instant gratification and consumed by the mess in the White House. While the party’s presidential contenders are attracting big crowds, donors, and volunteers determined to defeat President Donald Trump in 2020, Holder is focused on 2021…..

Unlocking Access

Source: Bennett G. Boggs and Lesley Kennedy, State Legislatures, May/June 2019

Free tuition programs are opening doors for some students—but are they making the grade?

….“Free college” has caught the attention of many. Seventeen states and more than 350 localities in 44 states have enacted free college policies, and 23 states considered or are still debating legislation this year…..

The Politics of Rulemaking in the United States

Source: Susan Webb Yackee, Annual Review of Political Science, Vol. 22, 2019
(subscription required)

From the abstract:
Rulemaking is a critical part of American government and governance. This article reviews the political underpinnings of modern rulemaking. Specifically, it highlights the process and impact of agency regulations, as well as the key tools used by the legislature, elected executive, and courts to oversee the rulemaking process. The article also reviews who participates in the rulemaking process, as well as who influences regulatory content. Finally, new directions in regulatory policymaking are explored, including data collection advancements, as well as the potential role for guidance documents as replacements for more traditionally issued notice and comment regulations.

Unlocking Access to Health Care: A Federalist Approach to Reforming Occupational Licensing

Source: Gabriel Scheffler, Health Matrix: Journal of Law-Medicine, Vol. 29, No. 1, 2019

From the abstract:
Several features of the existing occupational licensing system impede access to health care without providing appreciable protections for patients. Licensing restrictions prevent health care providers from offering services to the full extent of their competency, obstruct the adoption of telehealth, and deter foreign-trained providers from practicing in the United States. Scholars and policymakers have proposed a number of reforms to this system over the years, but these proposals have had a limited impact for political and institutional reasons.

Still, there are grounds for optimism. In recent years, the federal government has taken a range of initial steps to reform licensing requirements for health care providers, and these steps have the potential to improve access to health care. Together, they illustrate a federalist approach to licensing reform, in which the federal government encourages the states to reform their licensing regimes, while largely preserving states’ control over the system. These steps include: (1) easing federal licensing restrictions for health care providers in certain areas where the federal government possesses regulatory authority; (2) creating incentives for states and professional bodies to experiment with reforms; (3) intensifying the Federal Trade Commission’s focus on licensing boards’ anti-competitive conduct; and (4) generating additional pressure for state-level reforms through expanding health insurance and promoting delivery system reforms under the Affordable Care Act.

This article argues that a federalist approach represents the most promising path toward reforming occupational licensing in health care. Federal intervention in licensing is necessary, due to states’ lack of incentives to experiment with licensing reforms, the externalities of their licensing regimes, and their inability to resolve their own collective action problems. Nevertheless, large-scale federal preemption of state licensing laws is unlikely, due to a combination of interest group politics, Congress’s tendency toward incrementalism, and its reliance on the states to administer federal policies. A federalist approach also has functional advantages over outright federal preemption: it allows for more experimentation in constructing new licensing regimes, and it enables the federal government to take advantage of states’ institutional expertise in regulating occupations. Finally, this approach presents a model for how the federal government can play a constructive role in occupational licensing in other fields besides health care, and in other areas of state regulatory policy.

Historical Mismatch Between Home-Based Care Policies And Laws Governing Home Care Workers

Source: Lisa I. Iezzoni, Naomi Gallopyn, and Kezia Scales, Health Affairs, Vol. 38, No. 6, June 2019

From the abstract:
Americans generally want to remain in their homes even if they develop chronic health problems or disabilities that qualify them for nursing home care. While family members or friends provide the preponderance of home-based support, millions of Americans use paid personal assistance services (PAS). Inexorable demographic trends are increasing the numbers of people who need paid home-based PAS, with this need rapidly outstripping the capacity of the paid PAS workforce. While many factors contribute to this widening discrepancy, its roots reach back more than eighty years to asynchrony among various policies affecting home-based supports for people with functional impairments and policies affecting home-based PAS workers. Finding solutions to the growing gap between demand for the services and the PAS workforce requires policies that cut across societal sectors and align incentives for consumers, workers, and other key stakeholders.

Related:
Home Health Care Providers Struggle With State Laws And Medicare Rules As Demand Rises
Source: Susan Jaffe, Health Affairs, Vol. 38, No. 6, June 2019

19th Amendment: A century of pioneering women in US politics

Source: Kelly-Leigh Cooper, BBC, June 3, 2019

One hundred years ago – on 4 June 1919 – Congress approved the 19th Amendment to the US constitution guaranteeing the right of American women to vote.

The amendment was the product of decades of campaigning and slow progress since the first convention for women’s rights was held in Seneca Falls in 1848.

In the years since, women had been thrown in jail for voting illegally, organised pickets across the country and chained themselves to the White House demanding representation.

Rights were granted in a handful of, mostly western, states over the years but resistance remained. This amendment, officially ratified in 1920, prohibited discrimination on the basis of sex on a national level.

In 2019 the US has more women in national politics than ever before, but still falls well short of equality. These are the pioneers who have made history in the century since…..

The Economic Effects of the 2017 Tax Revision: Preliminary Observations

Source: Jane G. Gravelle, Donald J. Marples, Congressional Research Service, CRS Report, R45736, May 22, 2019

The 2017 tax revision, P.L. 115-97, often referred to as the Tax Cuts and Jobs Act, and referred to subsequently as the Act, was estimated to reduce taxes by $1.5 trillion over 10 years. The Act permanently reduced the corporate tax rate to 21%, made a number of revisions in business tax deductions (including limits on interest deductions), and provided a major revision in the international tax rules. It also substantially revised individual income taxes, including an increase in the standard deduction and child credit largely offset by eliminating personal exemptions, along with rate cuts, limits on itemized deductions (primarily a dollar cap on the state and local tax deduction), and a 20% deduction for pass-through businesses (businesses taxed under the individual rather than the corporate tax, such as partnerships). These individual provisions are temporary and are scheduled to expire after 2025. The Act also adopted temporary provisions allowing the immediate deduction for equipment investment and an increase in the exemption for estate and gift taxes…..

….This analysis examines the preliminary effects of the Act during the first year, 2018. In some cases it is difficult to determine the effects of the tax cuts (e.g., on economic growth) given the other factors that affect outcomes. In other cases, such as the level of repatriation and use of repatriated funds, the evidence is more compelling. This report discusses these potential consequences in light of the data available after the first year…..

Be Careful What You Wish For: Ronald Reagan, Donald Trump, The Assault on Civil Rights, and The Surprising Story of How Title VII Got Its Private Right of Action

Source: David B. Oppenheimer, Henry Cornillie, Henry Bluestone Smith, Thao Thai, Richard Treadwell, Berkeley Journal of Employment and Labor Law, Vol. 39 No. 1, 2018, Posted: 9 May 2019

From the abstract:
This essay reviews the impact of President Ronald Reagan’s policies on civil rights enforcement in the 1980s, as he tried to turn back the clock on civil rights. Reagan devastated the civil rights enforcement agencies, as he pandered to the white nationalists who helped him win election. But Reagan’s attempts ultimately failed, and leave behind an important lesson for President Donald Trump. Reagan’s appointments to and policies at the Equal Employment Opportunity Commission (EEOC), the Department of Justice’s Civil Rights Division, and the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) seriously damaged civil rights enforcement. But employment discrimination law has survived and continues to be an often-effective tool against racism, misogyny, homophobia, religious hatred, and other forms of discrimination. Title VII cases (and claims under parallel statutes) continue to be a major part of the caseload in federal courts. Why? Because the Civil Rights Act is largely enforced by private civil rights groups and lawyers in private practice who bring cases before independent judges pursuant to a private right of action.

Did a progressive Congress have the foresight to recognize that a private right of action would protect the victims of discrimination from future administrations hostile to civil rights, and thus include it in the statute as a check against enforcement agencies captured by civil rights opponents? Hardly. Rather, moderate and conservative Senate Republicans, resigned to the fact that an employment discrimination law was inevitable, and fearful of a powerful federal agency that would restrict business autonomy in the manner of the National Labor Relations Board (NLRB), substituted a private right of action for agency adjudication in an attempt to sabotage the effectiveness of Title VII. In 1964, the adoption of a private right of action was widely seen as a great loss for civil rights advocates, turning Title VII from an enforceable law to an ineffectual call for voluntary compliance with anti-discrimination policies. Almost no one foresaw the development of a private bar of plaintiffs’ employment discrimination lawyers.

Those who tried to sabotage the enforcement of civil rights through a private right of action should be turning in their graves, having inadvertently given civil rights advocates a powerful tool to resist assaults on civil rights.