Author: jfortenberry@fortenberrylaw.com

What is happening with Proposition 101 in Arizona? One news report:

A scant 20 voting precincts remain unaccounted for out of 2,239 statewide, yet those votes could make the difference between whether or not Proposition 101 passes.

With the tallies at 50.1 percent against the proposition and 49.9 percent voting yes, the two sides are deadlocked until more ballots are counted.

Currently, votes in favor and opposed are separated by a margin of 2,124 out of over 1.7 million ballots cast.

The ballot initiative, backed by Medical Choice for Arizona, would guarantee that citizens would always have the right to choose and possibly pay for whichever health plan they wished, without interference, and that no law could incur a fine for opting out of or obtaining health care coverage.

Previous post here and here.

Update: More from the WSJ Health Blog here.

Footnoted.org has a link to this letter agreement provided to a TARP participant’s executives by the participant/company’s chief human resources officer under which the executive is to forego golden parachutes and other executive comp pursuant to the requirements of the TARP program. The Letter Agreement contains this language:

In addition, the Company is required to review its Benefit Plans to ensure that they do not encourage senior executive officers to take unnecessary and excessive risks that threaten the value of the Company. To the extent any such review requires revisions to any Benefit Plan with respect to you, you and the Company agree to negotiate such changes promptly and in good faith.

All of this is agreed to “in consideration of the benefits” that the executive will receive as a result of the Company’s participation in the government’s Capital Purchase Program.

More on TARP in previous posts here.

Reservists’ Rocky Return To Job Market. Excerpt:

With the Pentagon relying so heavily on the National Guard and Reserve to fight in Iraq and Afghanistan – 650,000 have been called for active duty since 9/11 – the least you’d expect is that after they serve, they get their old civilian jobs back.

There’s a law, called USERRA (Uniformed Services Employment and Reemployment Rights Act), that says their employers have to take them back at the same pay.

But what 60 Minutes correspondent Lesley Stahl found is that despite the law, thousands of guards and reservists come home to find themselves demoted or penalized, or out of a job completely.

The Workforce Prof Blog has comments on the video:

A primary focus was on USERRA’s costs to employers given the frequent and long tours of active duty that many Reservists now face in Iraq. There’s the normal share of simply bad employers, but also an example of an employer that continually went beyond the call of duty in supporting its employees who were called up. That employer, while continuing that support, was frank about the growing burdens on losing its employees so frequently and for unknown periods of time. The employer argued that if the military wanted to ensure its personnel enjoyed employment benefits, it should help pay the costs. An interesting idea that would normally seem to be a stretch, but sounds more reasonable given what employers have had to face the last several years.

The story also emphasized that these costs to employers hurt military employees’ opportunities. One commentator quoted a senior HR official who said point-blank that he wouldn’t hire an active Reservist. When pointed out that such an action was illegal, the official said that he could also find a reason not to hire someone.

Being a Phillies fan myself, I enjoyed this story from Law.com about Supreme Court Justice Samuel AlitoJr.: “Sitting Down With Justice Alito, the Supreme Phillies Fan.” Excerpt:

Supreme Court Justice Samuel Alito Jr. has turned his desk at the Court into a mini-shrine to the Philadelphia Phillies.

There’s a Phillies towel, the front page of Thursday’s Philadelphia Inquirer with a headline proclaiming “CHAMPS!” and a baseball hat marking the team’s playoff win. The World Series hat, he says, “is on the way.” . . .

He watched the Series games on television, but was “living and dying with every pitch.” Does he yell at the television? “There’s a lot of emotion, but I’m very quiet.”

From the Wall Street Journal, “As Arizona Goes: A Proposition that could change the health-care debate.” Excerpt:

On Tuesday Arizonans will vote on a ballot initiative that could resonate in the national debate over the future of health care. Proposition 101, the Freedom of Choice in Health Care Act, has set off a storm of opposition, though its language hardly seems controversial. It reads that “no law shall be passed that restricts a person’s freedom of choice of private heath care systems or private plans of any type.” Also: “No law shall interfere with a person’s right to pay directly for lawful medical services . . .”

Proposition 101’s fate is up in the air because its opponents, led by the Governor, are spending about four times more than supporters. They are doing so in the belief that if health-care choice passes in Arizona, it will spread to other states. It is ironic the groups opposing the rights of Arizona citizens to choose their own health care purport to back a “patient bill of rights.” In what way is the freedom to choose one’s care not a fundamental patient right?

From Financial Week: 401(k) plans could be facing total revamp: Lawmakers, candidates calling for rethink of DC plans; die early, lose half your assets? Excerpt:

“It’s going to be difficult because people like their 401(k) plans,” said Bill Sweetnam, a partner with the Groom Law Group, Washington.

The prospects for Ms. Ghilarducci’s proposal are considered dim by some lobbyists. For starters, while the existing retirement system in the U.S. is voluntary for employers, Ms. Ghilarducci’s proposal would require participation. In addition, while investments under existing retirement plans are managed by private-sector money managers, investments in Ms. Ghilarducci’s plan would be managed by the federal government.

“It’s a non-starter,” Paul Schott Stevens, president and chief executive officer of the mutual fund industry’s Investment Company Institute, Washington, said of Ms. Ghilarducci’s plan. “It’s puzzling in the (financial) course we are in now that the committee would give currency to that proposal.”

“We believe the current employer-sponsored system is a good one that should be built on,” added Jan Jacobson, senior counsel, retirement policy, American Benefits Council, Washington.

“It (Ms. Ghilarducci’s proposal) is subsidized by workers who die early and forfeit their assets,” added Ed Ferrigno, vice president of Washington affairs, Profit Sharing/401(k) Council of America, Chicago. “I don’t think there’s any prospect for her exact version.

“There may be some elements in it that may end up being considered.”

“There isn’t anybody out there who is serious that is supporting that kind (Ms. Ghilarducci’s) of plan,” added Mark Ugoretz, president of the ERISA Industry Committee, a Washington-based group representing employers.

From Bloomberg.com: “Peabody Pays Mayo Clinic Prices to Save on Health-Care Costs.” Excerpt:

Ferguson’s wife, Shanna, had her colon removed last year because of chronic inflammatory disease. Foundation sent her 700 miles away to the top-ranked Mayo Clinic in Rochester, Minnesota. The company covered the $85,000 bill for the operation and follow-up reconstructive surgery and even paid for Ken’s motel.

“I was at the best place with the best doctors possible,” said Shanna, 50. “And we saved money.”

So did Foundation. The coal producer says it has found an unconventional way to cut health costs: Seek out the nation’s best care and give workers incentives to use it. About two-thirds of operations have proven to be cheaper at better-rated hospitals out of state. Even when the price was higher, the Linthicum Heights, Maryland-based company saved money by reducing misdiagnoses, complications and repeat procedures.

Foundation’s experiment in Wyoming could be a model for politicians and insurers seeking to curb the growth in U.S. health-care spending, now $2.2 trillion a year, said Mark McClellan, who served under President George W. Bush as head of Medicare and the Food and Drug Administration.

More on this approach from the Connecticut Employment Law Blog here. See also this link to a book by Michael E. Porter & Elizabeth Olmsted Teisberg entitled “Redefining Health Care” which discusses the approach.

From the Tax Prof:

The Federal Circuit today issued its long awaited decision in In re Bilski, No. 2007-1130 (Fed. Cir. Oct. 30, 2008), rejecting the patentability test (State Street Bank & Trust Co. v. Signature Financial Group, 149 F.3d 1368 (Fed. Cir. 1998)) which was the linchpin in the spate of tax strategy patents issued recently. . .

There has been a lot written about whether strategies could be patented in the ERISA arena. Those who are interested in this topic will want to take note.

The HR Lady (sorry, I just can’t bring myself to call her “evil” as the name of her blog indicates) has an interesting poll going on at her sight: “I am an HR Professional and I know what a ‘Summary Plan Description’ is. . .”

It will be interesting to find out the results of this. If they aren’t good, I guess we’re in trouble.

(For those who might not be benefits or ERISA savvy, you can go here or here for the answer.)

According to this press release here, the Financial Accounting Standards Board has mandated that employers provide extensive information about the fair value of assets in pension plans, counter to a staff recommendation and over the objections of Chairman Robert Herz and member Leslie Seidman. See this FASB Summary of Board Decisions here.

The board decided Wednesday that the final staff position will be effective for fiscal years ending after Dec. 15, 2009, one year later than originally envisioned, with early application permitted.

See also these Handouts which were used in the meeting here.