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The Legal Side of Cancer

by Laura Riley, Esq

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After a diagnosis of cancer, legal issues may be the furthest thing from your mind, and understandably so. You face the obvious medical concerns, accompanied by emotional struggles and practical day-to-day tasks. But intertwined with these are legal issues that may need to be addressed.

Medical Leave
If you need to take a leave of absence from your job for cancer treatment or recovery, the first thing to figure out is what medical leave options are available. If an employer has 50 or more employees in a 75-mile radius (for example, if there are many small branches of a store within 75 miles with a collective total of 50 employees), the employer is required to provide leave under the federal Family and Medical Leave Act. The employer must provide this leave to employees who have been employed for 12 months and have worked at least 1,250 hours. FMLA entitles employees to 12 weeks of leave for a serious medical condition or to take care of a spouse, parent, or child with a serious medical condition.

The benefits of FMLA are that when you return to work, you must be given your exact job back (or an equivalent job in terms of pay, benefits, and responsibilities), and your employer must maintain your health insurance while you’re gone. One drawback is that the leave is unpaid and only lasts 12 weeks, which often is not long enough for cancer treatment and recovery.

Before treatment, find out whether your employer is required to offer FMLA leave and whether your private benefits offer any other leave time.

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Laura Riley

FMLA outlines the baseline of what employers have to provide, but some employers offer more. Some offer private short- and long-term disability insurance as part of the job’s benefits package. If that’s the case, it’s worth asking for a hard copy of your company’s full plan description.

Before treatment, find out whether your employer is required to offer FMLA leave and whether your private benefits include any other leave time, and speak to your healthcare team about the expected time you will be unable to work so you can start sorting out your medical leave options now.

Health Insurance Coverage
After figuring out what kind of leave is available to you, and how long it will last, the next step is to research your health insurance options after you take leave. The most common way that people obtain health insurance is through their employer or a family member’s employer. These types of employer-sponsored plans are called group plans. Plans that a person buys directly from an insurance company are called individual plans.

If you lose your job, you may be eligible for health insurance coverage under the Consolidated Omnibus Budget Reconciliation Act, or COBRA, a federal law that gives people who work for employers with 20 or more employees the right to continue the same group health insurance coverage that they had while they were working. If you leave your job voluntarily or are terminated because you are too ill to return to work after your 12 weeks of FMLA leave, then COBRA usually will grant you 18 months of coverage. Some states also have mini COBRA laws that might allow you additional time to remain covered on the same insurance policy.

The benefit of maintaining coverage through COBRA is that you can keep the same health insurance coverage, which is important for people with cancer because it means you don’t have to change healthcare providers. The downside of maintaining coverage through COBRA is that its premiums can be expensive. Employers typically subsidize health insurance costs heavily, but on COBRA, employees have to pay the full premium themselves. If you cannot afford to pay the COBRA premiums and are eligible for Medicaid, then the Health Insurance Premium Program may be an option. HIPP is a program available in some states that pays COBRA premiums to help people keep their private health insurance coverage.

The key to qualifying for federal disability benefits is to show how your medical condition and the side effects from its treatment are expected to keep you from working for a year or more.

Once COBRA coverage is exhausted, the Health Insurance Portability and Accountability Act might provide a helpful benefit. You may be familiar with HIPAA in the context of maintaining the privacy of medical information. But this federal law also prohibits health insurance discrimination against individuals based on their pre-existing medical conditions when moving from one group plan to another group plan or from a group plan to a HIPAA guarantee issue plan. One important thing to keep in mind is that in order to take advantage of HIPAA protections, you cannot have a recent break in health insurance coverage that lasts more than 63 days.

Continued Access to Healthcare
During treatment, it’s critical to ensure continued access to healthcare while you are away from work.

Medicaid provides health insurance for certain people who have low incomes, have limited resources, and meet other eligibility requirements. People with cancer often qualify for Medicaid through the Aid for the Aged, Blind, and Disabled Program, which provides coverage to individuals with low incomes who are over 65 or who have a disability. Many states also have programs through Medicaid and the National Breast and Cervical Cancer Early Detection Program that provide low-income residents who have breast or cervical cancer the opportunity to get no-cost cancer treatment coverage after diagnosis. Some hospitals also offer free medical care to people with lower incomes under the Hill-Burton Act. For information on Hill-Burton facilities near you, visit HRSA.gov/GetHealthcare/Affordable/HillBurton.

If your income is too high to qualify for a charity care program or Medicaid, then high-risk pool health insurance plans may be an option. If you are not able to obtain insurance through COBRA, or are not eligible for a HIPAA plan, you may be eligible for a state high-risk insurance pool or major-risk plan. These state plans provide limited health insurance for people who are unable to obtain health insurance coverage in the individual insurance market due to a preexisting condition. States are not required to provide this option for medically uninsurable individuals to access coverage, but many do. Currently, 35 states have major-risk health insurance pools. Of those 35 states that offer high-risk policies, 27 states offer multiple plans for people who are unable to obtain individual health insurance coverage due to a pre-existing condition. In addition, the Affordable Care Act created a federal high-risk option called the Pre-Existing Condition Insurance Program, which is available in each state for people with a preexisting condition who have had no creditable health insurance coverage in the six months prior to application.

In a few states, there are state-sponsored disability insurance programs with specific eligibility requirements. In addition, the federal government offers two long-term disability benefit programs known as Supplemental Security Income and Social Security Disability Insurance. In order to receive these benefits, a person must meet the Social Security Administration’s definition of disability.

The key to qualifying for federal disability benefits is to show how your medical condition and the side effects from its treatment are expected to keep you from working for a year or more. Eligibility for Supplemental Security Income depends on income and asset level, while for Social Security Disability Insurance, the Social Security Administration looks at work history.

If you qualify for Social Security Disability Insurance, and continue to be eligible and stay on it for two years, you will be enrolled in Medicare. Usually Medicare is healthcare coverage for people 65 and older, but it’s also available to people who have received Social Security Disability Insurance benefits for 24 months.

Medicare has four parts, each with different services and coverage. Part A is considered “hospital insurance” and can include coverage for inpatient hospital stays, skilled nursing facilities, and some home healthcare or hospice care. Assuming you’ve had sufficient work history, Part A would be free. In order to enroll in Parts B through D, you would have to apply and pay a monthly fee.

These situations might not apply to you, but it’s important to understand all your legal options while undergoing cancer treatment and recovery.

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Laura Riley is a staff attorney at the Cancer Legal Resource Center, a joint program of the Disability Rights Legal Center and Loyola Law School in Los Angeles, CA, that provides free education and resources on cancer-related legal issues to cancer survivors, caregivers, healthcare professionals, and employers.

Through this article, the author is not engaged in rendering any legal or professional services by its publication or distribution. It is not intended to be legal advice or establish an attorney-client relationship.

This article was published in Coping® with Cancer magazine, September/October 2012.