HEALTHCARE

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SOCIAL SCIENCE RESEARCH NETWORK

EMPLOYEE BENEFITS, COMPENSATION & PENSION LAW ABSTRACTS
Sponsored by Pension Governance, LLC
Vol. 8, No. 18: May 17, 2007

Editor: PAMELA J. PERUN
Policy Director, Initiative on Financial Security,
Aspen Institute
PAMELA@PLANETNOW.COM
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Topic of This Issue:
Healthcare
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T A B L E O F C O N T E N T S

"Consumer Directed Health Care"
JOHN C. GOODMAN
National Center for Policy Analysis

"Big-Box Benefits: The Targeting of Giants in a National Campaign
to Raise Work Conditions"
ORLY LOBEL
University of San Diego - School of Law, Harvard Law
School

"The New Massachusetts Health Law: Preemption and
Experimentation"
EDWARD A. ZELINSKY
Cardozo Law School

"President's 'Affordable Choices' Initiative Provides Little
Support for State Efforts to Expand Health Coverage"
JUDITH SOLOMON
Center on Budget and Policy Priorities (CBPP)

"How Does Health Insurance Affect Workers Compensation Filing?"
DARIUS N. LAKDAWALLA
The RAND Corporation - Santa Monica CA Offices, National
Bureau of Economic Research (NBER)
ROBERT T. REVILLE
The RAND Corporation - Institute for Civil Justice
SETH A. SEABURY
The RAND Corporation - Santa Monica CA Offices
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"Consumer Directed Health Care"
Networks Financial Institute Policy Brief No. 2006-PB-20

Contact: JOHN C. GOODMAN
National Center for Policy Analysis
Email: jcgoodman@ncpa.org
Auth-Page: http://ssrn.com/author=375176

Full Text: http://ssrn.com/abstract=985572

ABSTRACT: Consumer driven health care (CDHC) is a potential
solution to two perplexing problems: (1) How to choose between
health care and other uses of money, and (2) how to allocate
resources in an industry where normal market forces have been
systemically suppressed. In the consumer-driven model, consumers
occupy the primary decision-making role regarding the health care
that they receive. From an employee benefits perspective,
consumer driven health care in the broadest sense may refer to
limited employer contribution or dual option plans featuring high
deductible health coverage with tax advantaged savings vehicles
such as Health Savings Accounts (HSAs), Flexible Spending
Accounts (FSAs) and Health Reimbursement Arrangements (HRAs)
(Daly, 2005). However, before we consider the solution, we must
first investigate why a solution is needed in the first place.
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"Big-Box Benefits: The Targeting of Giants in a National Campaign
to Raise Work Conditions"
San Diego Legal Studies Paper No. 07-102
Connecticut Law Review, Symposium Issue: Wal-Mart
Matters, Vol. 39, 2007

Contact: ORLY LOBEL
University of San Diego - School of Law, Harvard
Law School
Email: lobel@sandiego.edu
Auth-Page: http://ssrn.com/author=337751

Full Text: http://ssrn.com/abstract=984496

ABSTRACT: Wal-Mart matters to the form and substance of law and
social reform in several distinct ways. This article describes
Wal-Mart as serving three key purposes - as target, symbol, and
model - in the contemporary social reform landscape. First,
Wal-Mart, the largest employer in the United States is an
effective target, serving as a deep, large pocket which impacts
huge numbers of stakeholders. Second, Wal-Mart as a familiar,
visible, and brazen corporation serves as a compelling symbol of
the dilemmas about the costs and distribution of benefits of
for-profit enterprises. And third, Wal-Mart serves as an
experimental model for strategically exploring the efficacy of
alternatives in legislation, litigation, and political struggles
for social reform. Describing these three key purposes, the
article demonstrates how recent confrontations between Wal-Mart
and the environments within which it operates are shaping
contemporary forms of political deliberation, legal strategies
and social reform activism. In particular, the article links
these three ways in which Wal-Mart has been shaping legal debates
by examining developments in Wal-Mart anti-discrimination suits,
including the Dukes v. Wal-Mart Stores recently certified class
action, ADA suits, and wage and hour claims against the
superstore. The article further focuses on efforts by local
governments and state legislature to target, and use big-box
retailers as a symbol of record wealth gaps and a model for
welfare reform, in the areas of health care provision and living
wage ordinances.
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"The New Massachusetts Health Law: Preemption and
Experimentation"
Cardozo Legal Studies Research Paper No. 193
William & Mary Law Review, Vol. 49, 2007-2008

Contact: EDWARD A. ZELINSKY
Cardozo Law School
Email: ZELINSKY@PRODIGY.NET
Auth-Page: http://ssrn.com/author=239302

Full Text: http://ssrn.com/abstract=983506

ABSTRACT: Major features of the new Massachusetts health law are
ERISA-preempted as forbidden regulation of employer-provided
health care.

This is a regrettable conclusion but one mandated by the ERISA
Section 514 and the controlling case law. ERISA preempts the new
law's mandate requiring covered Massachusetts employers to
sponsor medical plans for their employees and to make "fair and
reasonable" contributions to such plans. ERISA also preempts the
new law's requirement that Massachusetts residents maintain
"minimum creditable coverage" for health care as that requirement
effectively mandates for Massachusetts employers the substantive
medical coverage they must offer their employees.

Employer-provided medical coverage is today central to health
care in the United States. ERISA Section 514(a) precludes the
states from experimenting with alternative approaches to health
care, like the new Massachusetts health law, which impact
employer-provided health care.

At a minimum, Congress should amend ERISA Section 514 to validate
the new Massachusetts health law. More comprehensively, Congress
should amend Section 514 to permit all states to experiment with
health care reform insofar as such experiments "relate to"
employer-provided health care. Ideally, Congress should repeal
Section 514 and thus abolish altogether the jurisprudence of
ERISA preemption.
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"President's 'Affordable Choices' Initiative Provides Little
Support for State Efforts to Expand Health Coverage"
Center on Budget and Policy Priorities, April 3, 2007

Contact: JUDITH SOLOMON
Center on Budget and Policy Priorities (CBPP)
Email: Solomon@cbpp.org
Auth-Page: http://ssrn.com/author=505225

Full Text: http://ssrn.com/abstract=978811

ABSTRACT: The Administration's "Affordable Choices" initiative,
announced in January 2007, attempts to respond to the states'
call for federal support to help them expand coverage to
low-income uninsured individuals. As this paper explains,
however, Affordable Choices provides states with no new funds to
help cover the uninsured; it simply redirects existing federal
funds that now go to safety-net health-care providers who care
for the uninsured. Many states currently receive only small
amounts of such funds, and even in states with significant funds
to redirect, these funds would not be sufficient to cover all of
their uninsured residents. As a result, many residents would
remain uninsured, even as safety-net providers (such as public
hospitals) were deprived of support they need to care for these
patients. Moreover, Affordable Choices bars states from using
redirected funds to expand coverage through public health
programs, denying states the flexibility to design their coverage
initiatives to best meet their residents' needs.
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"How Does Health Insurance Affect Workers Compensation Filing?"
Economic Inquiry, Vol. 45, No. 2, pp. 286-303, April 2007

Contact: DARIUS N. LAKDAWALLA
The RAND Corporation - Santa Monica CA Offices,
National Bureau of Economic Research (NBER)
Email: darius_lakdawalla@rand.org
Auth-Page: http://ssrn.com/author=766924

Co-Author: ROBERT T. REVILLE
The RAND Corporation - Institute for Civil Justice
Email: Robert_Reville@rand.org
Auth-Page: http://ssrn.com/author=31245

Co-Author: SETH A. SEABURY
The RAND Corporation - Santa Monica CA Offices
Email: seth_seabury@rand.org
Auth-Page: http://ssrn.com/author=766926

Full Text: http://ssrn.com/abstract=969510

ABSTRACT: About half of injured workers choose not to file
workers' compensation claims. This is thought to result from
their use of health insurance instead of workers' compensation.
However, the data suggest that insured workers are actually less
likely to file than their more vulnerable uninsured counterparts.
We found that this relationship emerges as the result of employer
characteristics and, in particular, that employers who offer
health insurance to employees are more likely to have workers who
file claims; this is much more important than the insurance
status of workers themselves or fixed worker characteristics.
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