Company behind Joe Namath Medicare Advantage ads has long rap sheet of misconduct

https://wendellpotter.substack.com/p/company-behind-namath-ads-has-long

Former New York Jets superstar Joe Namath can be seen every year during Medicare open enrollment hocking plans that tell seniors how great their life would be if only they signed up for a Medicare Advantage plan. From October 15 to December 7 last year alone, Joe Namath ads ran 3,670 times, according to iSpot, which tracks TV advertising.

But the company behind those ads, now called Blue Lantern Health, and their products, HealthInsurance.com and the Medicare Coverage Helpline, have an expansive rap sheet of misconduct, including prosecutions by the Securities and Exchange Commission and the Federal Trade Commission, and a recent bankruptcy filing that critics say is designed to jettison the substantial legal liabilities the firm has incurred. In September 2023, the company became Blue Lantern; before that, it was called Benefytt; and before that, Health Insurance Innovations. Forty-three state attorneys general had settled with the company in 2018, with it paying a $3.4 million fine. A close associate of the company, Steven Dorfman, has also been prosecuted by the FTC, in addition to the Department of Justice

Namath himself has a bit of a checkered past when it comes to his business associates—in the early 1970s, he co-owned a bar frequented by members of the Colombo and Lucchese crime families, according to reporting at the time cited in a 2004 biography.  Due to the controversy surrounding the bar, Namath was forced by the NFL Commissioner to sell his interest in it. Last year, it was revealed that Namath had employed a prolific pedophile coach at his football camp, also in the 1970s, and the 80-year-old ex-quarterback is now being sued by one of the coach’s victims. 

The Namath ads are the main illustration of the behemoth Medicare Advantage marketing industry, which is designed to herd seniors into Medicare Advantage plans that restrict the doctors and hospitals that seniors can go to and the procedures they can access through the onerous “prior authorization” process, and it costs the federal government as much as $140 billion annually compared to traditional Medicare. Over half of seniors—nearly 31 million people—are now in Medicare Advantage, and there is little understanding of the drawbacks of the program. Seniors are aware that they may receive modest gym or food benefits but typically do not realize that they may be giving up their doctors, their specialists, their outpatient clinics, and their hospitals in favor of an in-network alternative that may be lower quality and farther away.

How so many seniors are lured into Medicare Advantage

Blue Lantern—with its powerful private equity owner Madison Dearborn—may be the key to understanding how so many people have been ushered into Medicare Advantage—and the pitfalls that private equity’s rapid entrance into health care can create for ordinary Americans.

While Blue Lantern is just one company, it is a Rosetta Stone for everything that is wrong with American health care today—fraud, profiteering, lawbreaking, no regard for patient care—where only the public comes out the loser. 

Blue Lantern uses TV ads and, at least until regulators began poking around, a widespread telemarketing operation, being one of the main firms charged with generating “leads” that are then sold to brokers and insurers, as Medicare Advantage plans are banned from cold-calling. Court filings reviewed by HEALTH CARE Un-Covered allege that after legal discovery, Blue Lantern (then known as Benefytt) at minimum dialed seniors over 17 million times, potentially in violation of federal law that requires telemarketers to properly identify themselves and who they are working for—ultimately, in this case, insurers that generate huge profits from Medicare Advantage.

The Namath ads have been running since 2018 when the company was named Health Insurance Innovations—the same year the FTC began prosecuting Simple Health Plans, along with its then-CEO Steven Dorfman. The Fort Lauderdale Sun-Sentinel identified Health Insurance Innovations as a “successor” to Simple Health Plans. After five years of likely exceptionally costly litigation, for which Dorfman is represented by jet-set law firm DLA Piper, on February 9, the FTC won a $195 million judgment against Simple Health Plans and Dorfman. The FTC alleged in 2019 that Dorfman had lied to the court when he said that he did not control any offshore accounts. The FTC found $20 million, but the real number is probably higher. 

Friends in high places 

In February 2020, Trump’s Secretary of Health and Human Services, Alex Azar, said that the Namath ads might not “look or sound like the future of health care,” but that they represented “real savings, real options” for older Americans. 

In March 2020, Health Insurance Innovations (HII) changed its name to Benefytt, and in August 2020, it was acquired by Madison Dearborn Partners. Madison Dearborn has close ties to the Illinois Democratic elite, pumping over $916,000 into U.S. Ambassador to Japan Rahm Emanuel’s campaigns for Congress and mayor of Chicago.

In September 2021, HII settled a $27.5 million class action lawsuit. The 230,000 victims received an average payout of just $80.  

In July 2022, the SEC charged HII/Benefytt and its then-CEO Gavin Southwell with making fraudulent representations to investors about the quality of the health plans it was marketing. “HII and Southwell…told investors in earnings calls and investor presentations that HII’s consumer satisfaction was 99.99 percent and state insurance regulators received very few consumer complaints regarding HII. In reality, HII tracked tens of thousands of dissatisfied consumers who complained that HII’s distributors made misrepresentations to sell the health insurance products, charged consumers for products they did not authorize and failed to cancel plans upon consumers’ requests,” the SEC found, with HII/Benefytt and Southwell ultimately paying a $12 million settlement in November 2022. 

By August 2022, Benefytt had paid $100 million to settle allegations that it had fraudulently directed people into “sham” health care plans. “Benefytt pocketed millions selling sham insurance to seniors and other consumers looking for health coverage,” the FTC’s Director of Consumer Protection, Samuel Levine, said at the time. 

Bankruptcy and another name change

In May 2023, Benefytt declared Chapter 11 bankruptcy—where the company seeks to continue to exist as a going concern, as opposed to Chapter 9, when the company is stripped apart for creditors—in the Southern District of Texas. The plan of bankruptcy was approved in August. The Southern Texas Bankruptcy Court has been mired in controversy in recent months as one of the two judges was revealed to be in a romantic relationship with a woman employed by a firm, Jackson Walker, that worked in concert with the major Chicago law firm Kirkland and Ellis to move bankruptcy cases to Southern Texas and monopolize them under a friendly court. While the other judge on the two-judge panel handled the Benefytt case, Jackson Walker and Kirkland and Ellis were retained by Benefytt, and the fees paid to Jackson Walker by Benefytt were delayed by the court as a result of the controversy.

In September 2023, Benefytt exited bankruptcy and became Blue Lantern

The August approval of the bankruptcy plan was vocally opposed by a group of creditors who had sued Benefytt over violations of the Telephone Consumer Privacy Act (TCPA). The creditors asserted that Benefytt had substantial liabilities, with millions of calls made where Benefytt did not identify the ultimate seller—Medicare Advantage plans run by UnitedHealth, Humana, and other firms prohibited from directly contacting people they have no relationship with—and violations fined at $1,500 per willful violation. 

Attorneys for those creditors stated in a filing reviewed by HEALTH CARE Un-Covered that Madison Dearborn always planned “to steer Benefytt into bankruptcy,” if they were unable to resolve the substantial liabilities they owed under the TCPA. 

Madison Dearborn “knew that Benefytt’s TCPA liabilities exceeded its value, but purchased Benefytt anyway, for the purpose of trying to quickly extract as much money and value as they could before those liabilities became due,”

the August 25, 2023, filing stated on behalf of Wes Newman, Mary Bilek, George Moore, and Robert Hossfeld, all plaintiffs in proposed TCPA class action suits. The filing went on to say that the bankruptcy was inevitable “if—after siphoning off any benefit from the illegal telemarketing alleged herein—[Madison Dearborn] could not obtain favorable settlements or dismissals for the telemarketing-related lawsuits against Benefytt.”

Under the bankruptcy plan, Blue Lantern/Benefytt is released from the TCPA claims, but individuals harmed can affirmatively opt-out of the release, which is why the bankruptcy court justified its approval. Over 7 million people—the total numbers in Benefytt’s database, according to the plaintiffs—opting out of the third-party release is an enormous administrative hurdle for plaintiffs’ lawyers to pass, massively limiting the likelihood of success of any class-action litigation against Blue Lantern going forward. 

Their attorney, Alex Burke, stated in court that “[t]his bankruptcy is an intentional and preplanned continuation of a fraud.” His statement was before 3,670 more Namath ads ran during 2023 open enrollment. 

In response to requests for comment from HEALTH CARE un-covered, the Centers for Medicare and Medicaid Services did not answer questions about Benefytt and why the company was simply not barred from the Medicare Advantage market altogether. 

Corporations have used the bankruptcy process in recent years to free themselves from criminal and civil liability, with opioid marketer Purdue Pharma being the most prominent recent example. The Supreme Court is reviewing the legality of Purdue’s third-party releases currently, with a decision expected in late spring.

The role that private equity plays in keeping Benefytt going cannot be overstated.

Without Madison Dearborn or another private equity firm eager to take on such a risky business with such a long history of legal imbroglios, it is almost certain that Benefytt would no longer exist—and the Joe Namath ads would disappear from our televisions. Instead, Madison Dearborn keeps them going, suckering seniors into Medicare Advantage plans. 

This is part and parcel of the ongoing colonization by private equity into America’s health care system. Private equity is making a major play into Medicare Advantage.

It has pumped billions of dollars into purchasing hospitals. It has invested in hospice care. It is gobbling up doctors’ groups. It is acquiring ambulance companies. It is hoovering up nurse staffing firms. It is making huge investments into health tech. It is in nursing homes. And it is in health insurance. Nothing about America’s health care system is untouched by private equity.

That’s a problem, experts say.

“I’ve been screaming at the TV every time Joe Namath gets on—it is not an official Medicare website,” said Laura Katz Olson, a professor of political science at Lehigh University who has written on private equity’s role in the health care system.

“Private equity has so much money to deploy, which is far more than they have opportunities to buy. As such, they are desperately looking for opportunities to invest. There’s a lot of money in Medicare Advantage—it’s guaranteed money from the federal government, which makes it perfect for the private equity playbook.”

Eileen Appelbaum, the co-director at the Center for Economic and Policy Research, who has also studied private equity’s role in health care, concurred that private equity was a perfect fit for Medicare marketing organizations.

“I think basically the whole privatized Medicare situation is ready for all kinds of exploitation and misrepresentations and denying people the coverage that they need,” she said. “My email is inundated with these totally misleading ads. Private equity  took a look at this and said, “look at that, it’s possible to do something that’s misleading and make a lot of money.”

Madison Dearborn receives a large portion of its capital from public pension funds like the California Public Employees Retirement System (CalPERS) and the Washington State Investment Fund—people who are dependent on Medicare. Appelbaum said that the pension funds exercise little oversight over their investments in private equity. “Pension funds may have the name of the company that they are invested in, they’re told that it’s ‘part of our health care investment portfolio,’ but they don’t find out what they really do until there’s a scandal.

It is amazing that pension funds give so much money to private equity with so little information about how their money is being spent.”

Judge refuses to approve pension plan deal requiring Dignity to pay up to $747M

https://www.beckershospitalreview.com/legal-regulatory-issues/judge-refuses-to-approve-pension-plan-deal-requiring-dignity-to-pay-up-to-747m.html?utm_medium=email

Dignity Health Poised to Settle ERISA Lawsuit for $100 Million

A California federal judge again refused to approve a deal requiring Dignity Health to pay as much as $747 million to settle a class-action lawsuit accusing the San Francisco-based health system of underfunding its pension plan, according to Law360.

The lawsuit, filed by former Dignity Health workers, alleges the health system used a religious Employee Income Retirement Security Act exemption to underfund its pension plan by $1.8 billion. In October, a federal judge in the Northern District of California refused to sign off on a proposed settlement because it contained a “kicker” clause. The clause would allow Dignity to keep the difference between the amount of attorneys’ fees awarded by the court and the more than $6 million in fees authorized by the settlement.

“Although the fact is not explicitly stated in the settlement, if the court awards less than $6.15 million in fees, defendants keep the amount of the difference and those funds are not distributed to the class,” Judge Jon S. Tigar said, according to Bloomberg Law. “The Court concludes that this arrangement, which potentially denies the class money that defendants were willing to pay in settlement — with no apparent countervailing benefit to the class — renders the settlement unreasonable.”

Both sides agreed to eliminate the kicker clause and resolved other issues the court outlined when it denied preliminary approval and class certification in October. In November, the workers filed a renewed unopposed motion, which the court denied June 12.

To certify a class for the purpose of settlement, the court must find that the plaintiffs named in the lawsuit and their lawyer were negotiating on behalf of the entire class. In Dignity’s case, there’s a “fundamental conflict of interest between the vesting subgroup and the rest of the class that must be addressed by subclass certification,” Mr. Tigar wrote in the order denying the motion. “Because the court cannot certify the class, it cannot grant preliminary approval of the settlement.”

Mr. Tigar wrote that he made the finding reluctantly because of the extensive litigation that has already occurred and the age of the case. However, he said Rule 23 of the Federal Rules of Civil Procedure requires it. 

 

 

 

 

The Battle Over State Bailouts

https://www.politico.com/news/magazine/2020/06/01/coronavirus-state-bailout-budget-jobs-economy-impact-287704

Blue State Bailout? Red State Residents Received Largest Stimulus ...

Why Politics Keeps Tanking a Bailout Idea That Works.

Nobody in Congress likes to give other politicians money. But the track record shows that writing checks directly to states could keep the recession from becoming way worse.

The last time the American economy tanked and Washington debated how to revive it, White House economists pushed one option that had never been tried in a big way: Send truckloads of federal dollars to the states.

When President Barack Obama took office in January 2009 during the throes of the Great Recession, tax revenues were collapsing and state budgets were hemorrhaging. The Obama team was terrified that without a massive infusion of cash from Congress, governors would tip the recession into a full-blown depression by laying off employees and cutting needed services. So the president proposed an unprecedented $200 billion in direct aid to states, a desperate effort to stop the bleeding that amounted to one-fourth of his entire stimulus request.

But the politics were dismal. Republican leaders had already decided to oppose any Obama stimulus. And even Washington Democrats who supported their new leader’s stimulus weren’t excited to help Republican governors balance their budgets. Most politicians enjoy spending money more than they enjoy giving money to other politicians to spend. And since state fiscal relief was a relatively new concept, the Obama team’s belief that it would provide powerful economic stimulus was more hunch-based than evidence-based.

Ultimately, the Democratic Congress approved $140 billion in state aid—only two-thirds of Obama’s original ask, but far more than any previous stimulus.

And it worked. At least a dozen post-recession studies found state fiscal aid gave a significant boost to the economy—and that more state aid would have produced a stronger recovery. The Obama team’s hunch that helping states would help the nation turned out to be correct.

But evidence isn’t everything in Washington. Now that Congress is once again debating stimulus for a crushed economy—and governors are once again confronted with gigantic budget shortfalls—a partisan war is breaking out over state aid. Memories of 2009 have faded, and the politics have scrambled under a Republican presidential administration.

Democratic leaders have made state aid a top priority now that Donald Trump is in the White House, securing $150 billion for state, local and tribal governments in the CARES Act that Congress passed in March, and proposing an astonishing $915 billion in the HEROES Act that the House passed in May. Republican leaders accepted the fiscal relief in the March bill, but they kept it out of the last round of stimulus that Congress enacted in April, and they have declared the HEROES Act dead on arrival. Though they’re no longer denouncing stimulus as socialism, as they did in the Obama era, they’ve begun attacking state aid as a “blue-state bailout.”

Polls show that most voters want Washington to help states avoid layoffs of teachers, police officers and public health workers, but Senate Majority Leader Mitch McConnell, Fox News personalities, and other influential Republicans are trying to reframe state aid as Big Government Democratic welfare spending. Trump doesn’t want to run for reelection during a depression, and he initially suggested he supported state aid, but in recent weeks he has complained that it would just reward Democratic mismanagement.

“There wasn’t a lot of evidence that state aid would be good stimulus in 2009, but now there’s a lot of data, and it all adds up to juice for the economy,” Moody’s chief economist Mark Zandi says. “It’s baffling that this is getting caught up in politics. If states don’t get the support they need soon, they’ll eliminate millions of jobs and cut spending at the worst possible time.”

The coronavirus is ravaging state budgets even faster than the Great Recession did, drying up revenue from sales taxes and income taxes while ratcheting up demand for health and unemployment benefits. But as Utah Republican Senator Mitt Romney pointed out earlier this month: “Blue states aren’t the only ones who are getting screwed.” Yes, California faces a $54 billion budget shortfall, and virus-ravaged blue states like New York and New Jersey are also confronting tides of red ink. But the Republican governors of Texas, Georgia and Ohio have also directed state agencies to prepare draconian spending cuts to close massive budget gaps.

Fiscal experts say the new Republican talking point that irresponsible states brought these problems on themselves with unbalanced budgets and out-of-control spending has little basis in reality. Unlike the federal government, which was running a trillion-dollar deficit even before the pandemic, every state except Vermont is required by law to balance its budget every year. State finances were unusually healthy before the crisis hit; overall, they had reserved 7.6 percent of their budgets in rainy day funds, up from 5 percent before the Great Recession.

But now, governors of both parties are now pivoting to austerity, which means more public employees applying for unemployment benefits, fewer state and local services in a time of need, and fewer dollars circulating in the economy as it begins to reopen.

Federal Reserve Chairman Jerome Powell, who has approved a plan to buy up to $500 billion worth of state and local government bonds to help ease their money problems, recently suggested that direct federal aid to states also “deserves a careful look,” which in Fed-speak qualifies as a desperate plea for congressional action.

Nevertheless, some Republicans who traditionally pushed to devolve power from the federal government to the states are now dismissing state aid as a bloated reward for liberal profligacy. Some fiscal conservatives have merely suggested that the nearly trillion-dollar pass-through to states, cities and tribes in the House HEROES bill is too generous given the uncertainties about the downturn’s trajectory. McConnell actually proposed that states in need should just declare bankruptcy, which is not even a legal option. Former Wisconsin Governor Scott Walker wrote a New York Times op-ed titled “Don’t Bail Out the States.” Sean Hannity told his Fox viewers that more fiscal relief would be a tax on “responsible residents of red states,” while Florida Senator (and former Governor) Rick Scott said it would “bail out liberal politicians in states like New York for their unwillingness to make tough and responsible choices.”

It was not so long ago that governors like Walker and Scott were burnishing their own reputations for fiscal responsibility with federal stimulus dollars. Obama’s American Recovery and Reinvestment Act was a bold experiment in using federal dollars to backstop states in an economic emergency, and its legacy hangs over the debate over today’s emergency.

By the time Obama won the 2008 election, the U.S. economy had already begun to collapse, and his aides had already given him a stimulus memo proposing a $25 billion “state growth fund.” The goal was anti-anti-stimulus: They wanted to prevent state spending cuts and tax hikes that would undo all the stimulus benefits of federal spending increases and tax cuts. The memo warned that states faced at least $100 billion in budget shortfalls, and that “state spending cuts will add to fiscal drag.” Cash-strapped states would also cut funding to local governments, accelerating the doom loop of public-sector layoffs and service reductions, pulling money out of the economy when government ought to be pouring money in.

The memo also warned that the fund might be caricatured as a bailout for irresponsible states and might run counter to the self-interest of politicians who enjoy dispensing largesse: “Congress may resist spending money that governors get credit for spending.” House Speaker Nancy Pelosi of California wasn’t keen on creating a slush fund for her state’s Republican governor, Arnold Schwarzenegger, and House Majority Whip James Clyburn of South Carolina was even more suspicious of his GOP governor, Mark Sanford, an outspoken opponent of all stimulus and most aid to the poor.

After President-elect Obama addressed a National Governors Association event in Philadelphia, Sanford and other conservative Republicans publicly declared that they didn’t want his handouts—and many congressional Democrats were inclined to grant their wish. Even Obama’s chief of staff, Rahm Emanuel, was worried about the politics of writing checks to governors who might run against Obama in 2012 on fiscal responsibility platforms.

There were plenty of studies suggesting that unemployment benefits and other aid to recession victims was good economic stimulus, because families in need tend to spend money once they get it, but there wasn’t much available research about aid to states. Congress had approved $20 billion in additional Medicaid payments to states in a 2003 stimulus package, but that aid had arrived much too late to make a measurable difference in the much milder 2001 recession.

Still, Obama’s economists speculated that state aid would have “reasonably large macroeconomic bang for the buck.” And the holes in state budgets were expanding at a scary pace, doubling in the first week after Obama’s election, increasing more than fivefold by Inauguration Day; Robert Greenstein of the Center on Budget and Policy Priorities remembers giving the Obama team frequent updates on state budget outlooks that seemed to deteriorate by the hour.

Obama ended up requesting $200 billion in state fiscal relief in the Recovery Act, eight times his team’s suggestion from November, 10 times more than Congress had authorized in 2003. Emanuel insisted on structuring the aid through increases in existing federal support for schools and Medicaid, rather than just sending states money, so it could be framed as saving the jobs of teachers and nurses. (One otherwise prescient memo by Obama economic aide Jason Furman suggested the unwieldy title of “Tax Increase and Teacher & Cop Layoff Prevention Fund.”) Republicans overwhelmingly opposed the entire stimulus, so Democrats dictated the contents, and they grudgingly agreed to most of their new president’s request for state bailouts.

“State aid was the part of the stimulus where Obama met the most resistance from Democrats,” Greenstein says. “It had such a huge price tag, and nobody loved it. But we can see how desperately it was needed.”

The Obama White House initially estimated that each dollar sent to states would generate $1.10 in economic activity, compared with $1.50 for aid to vulnerable families or infrastructure projects that had been considered the gold standard for emergency stimulus. But later work by Berkeley economist Gabriel Chodorow-Reich and others concluded the actual multiplier effect of the Medicaid assistance in the Recovery Act was as high as $2.00. In addition to preventing cuts in medical care for the poor, it saved or created about one job for every $25,000 of federal spending—and the help arrived much faster than even the most “shovel-ready” infrastructure projects, landing in state capitals just a week after the stimulus passed.

“There were at least a dozen papers written on the state aid, and the evidence is crystal clear that it helped,” says Furman, who is now an economics professor at Harvard. “Unfortunately, it was incredibly hard to get Congress to do more of it, and that hurt.”

After all the bluster about turning down Obama’s money, the only Republican governor who even tried to reject a large chunk of the federal stimulus was Sanford, who was overruled by his fellow Republicans in the South Carolina Legislature. Sarah Palin of Alaska did turn down some energy dollars, while Walker and Scott sent back aid for high-speed rail projects approved by their Democratic predecessors, but otherwise the governors all used the cash to help close their budget gaps. Bobby Jindal of Louisiana appeared at the ribbon-cutting for one Recovery Act project wielding a giant check with his own name on it. Rick Perry of Texas used stimulus dollars to renovate his governor’s mansion—which, in fairness, had been firebombed.

Nevertheless, the Recovery Act covered only about 25 percent of the state budget shortfalls, and Republican senators blocked or shrank Obama’s repeated efforts to send more money to states, forcing governors of both parties to impose austerity programs that slashed about 750,000 state and local government jobs. In 2010, 24 states laid off public employees, 35 cut funding for K-12 education, 37 cut prison spending, and 37 cut money for higher education, one reason for the sharp increases in student loan debt since then. In a recent academic review of fiscal stimulus during the Great Recession, Furman estimated that if state and local governments had merely followed their pattern in previous recessions, spending more to counteract the slowdown in the private sector, GDP growth would have been 0.5 percent higher every year from 2009 through 2013.

The Recovery Act helped turn GDP from negative to positive within four months of its passage, launching the longest period of uninterrupted job growth in U.S. history. But there’s a broad consensus among economists that austerity in the form of layoffs and reduced services at the state and local level worked against the stimulus spending at the federal level, weakening the recovery and making life harder for millions of families.

“The states would’ve made much bigger cuts without the Recovery Act, but they did make big cuts,” says Brian Sigritz, director of fiscal studies at the National Association of State Budget Officers. “We’re seeing similar reactions now, except the situation is even worse.”

It took a decade for state budgets to recover completely from the financial crisis. 2019 was the first year since the Great Recession that they grew faster than their historic average, and the first year in recent memory that no state had to make midyear cuts to get into balance. Rainy-day funds reached an all-time high.

And then the pandemic arrived.

The government sector shed nearly a million jobs in April alone, which is more jobs than it lost during the entire Great Recession. The fiscal carnage has not been limited to states like New York and New Jersey at the epicenter of the pandemic; oil-dependent states like Texas and tourism-dependent states like Florida have also seen revenues plummet. The bipartisan National Governors Association has asked Congress for $500 billion in state stabilization funds, warning that otherwise governors will be forced to make “drastic cuts to the programs we depend on to provide economic security, educational opportunities and public safety.”

So far, Congress has passed four coronavirus bills providing about $3.6 trillion in relief, including $200 billion in direct aid to state, local and tribal governments for Medicaid and other pandemic-related costs. Republican Governor Charlie Baker of Massachusetts says the aid has come in handy in fighting the virus—not only for providing health care and buying masks but for helping communities install plexiglass in consumer-facing offices and pay overtime to essential workers. Massachusetts had more than 10 percent of its expected tax revenues in its rainy-day fund before the crisis, but its revenues have dried up, putting tremendous pressure on the state as well as its 351 local governments.

“You don’t want states and locals to constrict when the rest of the economy is trying to take off,” Baker said. “So far, we’ve gotten close to what we need, but the question is what happens now, because no one knows what the world is going to look like in a few months.”

In the initial coronavirus bills, Democrats pushed for state aid, and Republicans relented. But in the most recent stimulus that Congress enacted, the $733 billion April package focused on small-business lending, Democrats pushed for state aid and Republicans refused. McConnell has said he’s open to another stimulus package, but he has ridiculed the $3 trillion Democratic HEROES Act as wildly excessive, and rejected its huge proposal for state relief as a bailout for irresponsible blue states with troubled pension funds. Sean Hannity expanded the critique, warning Fox viewers that they were being set up to help Democratic states pay off their “unfunded pensions, sanctuary state policies, massive entitlements, reckless spending on Green New Deal nonsense, and hundreds of millions of dollars of waste.”

In fact, the state with the most underfunded pension plan is McConnell’s Kentucky, which has just a third of the assets it needs to cover its obligations, even though it had unified Republican rule until a Democrat rode the pension crisis to the governor’s office last fall. In general, red states tend to be more dependent on federal largesse than blue states, which tend to pay more taxes to the federal government; an analysis by WalletHub found that 13 of the 15 most dependent states voted for Trump in 2016, with Kentucky ranking third.

Trump initially suggested state aid was “certainly the next thing we’re going to be discussing,” before embracing McConnell’s message that state bailouts would unfairly reward incompetent Democrats in states like California. But California’s finances were also in solid shape before the pandemic, with a $5 billion surplus announced earlier this year in addition to a record $17 billion socked away in its rainy-day fund. Some of the partisan arguments against state aid have been flagrantly hostile to economic evidence; Walker’s op-ed actually blamed the state budget shortfalls after the Great Recession on “the disappearance of federal stimulus funds,” rather than the recession itself, as if the stimulus funds somehow created the holes by failing to continue to plug them.

But plenty of Republican politicians support state aid, especially in states that need it the most. The GOP chairmen of Georgia’s appropriations committees recently asked their congressional delegation to support relief “to close the unprecedented gap in dollars required to maintain a conservative and lean government framework of services.” Some Republicans believe McConnell’s opposition to state fiscal relief is just a negotiating ploy, so he can claim he’s making a concession when it gets included in the next stimulus bill.

“Some aid to states is inevitable and necessary,” says Republican lobbyist Ed Rogers. “I suspect McConnell just wants to set a marker, and make sure aid to states doesn’t become aid to pension funds and public employee union coffers.”

That said, it’s not just Republican partisans who are skeptical of the Democratic push for nearly a trillion dollars in state and local aid. The current projections of state budget gaps range as high as $650 billion over the next two years, but some deficit hawks question whether it’s necessary to fill all of them before it’s clear how long the economic pain will last, and before the Fed has even begun its government bond-buying program. Maya MacGuineas, president of the Center for a Responsible Federal Budget, was already disgusted by the trillion-dollar deficits that Washington ran up before the pandemic, and while she says it makes sense to add to those deficits to prevent states from making the crisis worse with radical budget cuts, she doesn’t think federal taxpayers need to cater to every state-level request.

“We have a little time to catch our breath now, so we should make sure that we’re only getting states what they need,” MacGuineas says. “It’s not a moment to be padding the asks.”

Tom Lee, a Republican state senator and former Senate president, says it’s impossible to know how much help states will need without knowing how quickly the economy will reopen, whether there will be a second wave of infections, when Americans will return to their old travel habits, and at what point there will be treatment or a vaccine for the virus. More than three-quarters of Florida’s general revenue comes from sales taxes, so a lot depends on when Floridians start buying things again, and how much they’re willing to buy. Lee says it’s reasonable to expect Washington to help in an emergency, since the national government can print money and Florida can’t, but that the federal money store can’t be open indefinitely, since Florida’s finances were in much better shape than Washington’s before the emergency.

“No question, we need help, but we can’t expect the feds to make us whole,” Lee says. “We’re going to have to tighten our belts, too.”

That’s exactly what Keynesian economic stimulus is supposed to avoid: the contraction of public-sector spending at a time when private-sector spending has already shriveled. A recent poll by the liberal group Data for Progress found that 78 percent of Americans supported $1 trillion in federal aid to states so they can “avoid making deep cuts to government programs and services.”

But Obama White House veterans say they learned two related lessons from their experience with state fiscal relief: It’s better to get too much than not enough, and it’s unwise to assume you can get more later. Stimulus fatigue was real in 2009, and it seems to be returning to Washington. Republicans who spent much of the Obama era screaming about the federal deficit have embraced a free-spending culture of red ink under Trump, but lately they’re starting to talk more about slowing down—not only with state aid, but especially with state aid.

“We’ve already seen how state contraction can undo federal expansion,” Furman says. “This is the one part of the economy where we know exactly what needs to be done, and we don’t need to invent a brand new creative idea. But I worry that we’re not going to do it.”

 

 

 

UNION RESCHEDULES KAISER PERMANENTE STRIKE POSTPONED AFTER CEO’S DEATH

https://www.healthleadersmedia.com/strategy/union-reschedules-kaiser-permanente-strike-postponed-after-ceos-death?spMailingID=16676008&spUserID=MTg2ODM1MDE3NTU1S0&spJobID=1780330838&spReportId=MTc4MDMzMDgzOAS2

The health system’s senior vice president of national labor relations said the conflict is resolvable, ‘and there is no reason to strike.’

A five-day strike that was postponed last month after the sudden death of Kaiser Permanente Chairman and CEO Bernard J. Tyson is back on the calendar.

Thousands of psychologists, therapists, psychiatric nurses, and other healthcare professionals plan to strike December 16–20 at more than 100 Kaiser Permanente facilities across California, the National Union of Healthcare Workers (NUHW) said Wednesday.

“Mental health has been underserved and overlooked by the Kaiser system for too long,” said Ken Rogers, PsyD, MEd, a Kaiser Permanente clinical psychologist who serves as a vice president on the NUHW executive board, in a statement released by the union.

“We’re ready to work with Kaiser to create a new model for mental health care that doesn’t force patients to wait two months for appointments and leave clinicians with unsustainable caseloads,” Rogers said. “But Kaiser needs to show that it’s committed to fixing its system and treating patients and caregivers fairly.”

The union accuses Kaiser Permanente of refusing to negotiate unless mental health clinicians agree to “significantly poorer retirement and health benefits” than those received by its more than 120,000 other California employees.

Dennis Dabney, senior vice president of national labor relations and the Office of Labor Management Partnership at the Kaiser Foundation Health Plan and Hospitals, said the parties have been working together with an external mediator in pursuit of a collective bargaining agreement. The union rejected a compromise solution proposed last week by the mediator, Dabney said.

“The only issues actively in negotiation in Northern California are related to wage increases and the amount of administrative time that therapists have beyond patient time,” Dabney said. “We believe these issues are resolvable and there is no reason to strike.”

The mediator’s recommendation includes about 3% in annual wage increases for therapists in Northern California for four years, plus a $2,600 retroactive bonus, Dabney said

“In Southern California, the primary contract concern relates to wage increases and retirement benefits,” Dabney said.

The mediator’s recommendation includes about 3% in annual wage increases for therapists in Southern California for four years, plus a $2,600 retroactive bonus, even though the organization’s therapists in Southern California “are paid nearly 35% above market,” Dabney said.

“Rather than calling for a strike, NUHW’s leadership should continue to engage with the mediator and Kaiser Permanente to resolve these issues,” Dabney said.

 

 

 

Dignity Health’s class-action settlement actually worth $700M, workers say

https://www.beckershospitalreview.com/finance/dignity-health-s-class-action-settlement-actually-worth-700m-workers-say.html

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A California federal judge refused to approve a deal in October requiring Dignity Health to pay more than $100 million to settle a class-action lawsuit accusing the San Francisco-based health system of using a religious Employee Income Retirement Security Act exemption it wasn’t entitled to. Current and former Dignity workers argue the deal is actually worth more than $700 million in court documents filed Nov. 25, according to Law360.

Dignity Health allegedly used the religious exemption to underfund its pension plan by $1.5 billion. On Oct. 29, a federal judge in the Northern District of California refused to sign off on a proposed settlement because it contained a “kicker” clause. The clause would allow Dignity to keep the difference between the amount of attorneys’ fees awarded by the court and the more than $6 million in fees authorized by the settlement.

“Although the fact is not explicitly stated in the Settlement, if the Court awards less than $6.15 million in fees, Defendants keep the amount of the difference and those funds are not distributed to the class,” Judge Jon S. Tigar said, according to Bloomberg Law. “The Court concludes that this arrangement, which potentially denies the class money that Defendants were willing to pay in settlement — with no apparent countervailing benefit to the class — renders the Settlement unreasonable.”

Though the judge refused to sign off on the deal, he gave the parties an opportunity to revise the agreement and resubmit it for approval. Workers tweaked the proposed deal in a renewed motion for settlement filed Nov. 25.

According to the motion, the parties have agreed to eliminate the kicker clause.

“As provided in the new settlement, class counsel will apply to the court for approval of a total award of $6.15 million, for attorney fees, expenses and incentive awards,” the motion states. “If the court awards less than the requested amount, Dignity Health has agreed to pay the balance into the plan’s trust.”

The workers also argue that the attorney fee award is reasonable given the value of the settlement.

Under the proposed settlement, Dignity would add $50 million in retirement plan funding in 2020 and 2021.The settlement also requires Dignity to fund the pension plan until 2024 and prohibits the health system from reducing accrued benefits because of a plan merger or amendment for 10 years. For 2022 through 2024, Dignity Health’s cash contributions to the plan will be at least the “minimum contribution recommendation,” an amount calculated each year by independent actuaries.

“Under this settlement, Dignity Health will make substantial contributions to the plan for five years, in an amount we estimate to exceed $700 million,” the motion states.

The court previously noted that plaintiffs did not identify any settlement provisions governing how Dignity Health’s actuaries calculate the minimum contribution recommendation. The plaintiff’s actuary provided more information on the calculation in a supplemental declaration submitted Nov. 25.

The workers are seeking preliminary approval of the new settlement.

 

Attorneys’ Fees Doom Dignity Health’s $100 Million ERISA Deal

https://news.bloomberglaw.com/class-action/attorneys-fees-doom-dignity-healths-100-million-erisa-deal

Dignity Health’s $100 million class settlement with workers covered by its pension plan won’t get court approval until the parties rethink how the workers’ attorneys are paid, a federal judge in the Northern District of California ruled.

The deal is flawed because it contains a “kicker” clause allowing Dignity to keep any difference between the $6.15 million in attorneys’ fees authorized by the settlement and the amount of fees actually awarded by the court, Judge Jon S. Tigar said.

“Although the fact is not explicitly stated in the Settlement, if the Court awards less than $6.15 million in fees, Defendants keep the amount of the difference and those funds are not distributed to the class,” Tigar said. “The Court concludes that this arrangement, which potentially denies the class money that Defendants were willing to pay in settlement—with no apparent countervailing benefit to the class—renders the Settlement unreasonable.”

The proposed deal, which was slated to benefit more than 91,000 people, requires the hospital to put $50 million in its pension plan in 2020 and at least that much in 2021. Required contributions in the following three years will be based on recommendations from the plan’s actuaries, according to settlement papers filed in June.

Tiger also expressed concerns about Dignity’s agreement to make direct payments to certain plan participants. This has the potential to “shortchange or disproportionately favor these claims relative to classwide claims,” Tigar said.

Tiger withheld preliminary approval from the deal in an Oct. 29 order while giving the parties an opportunity to revise and try again.

Dignity Health is one of dozens of religiously affiliated hospitals that have been accused of wrongly treating their pension plans as “church plans” exempt from the Employee Retirement Income Security Act. The lawsuits claim that hospitals misuse ERISA’s church plan exemption in order to underfund their plans by tens or hundreds of millions of dollars.

The U.S. Supreme Court addressed ERISA’s church plan exemption in 2017, issuing a ruling that favored Dignity and other hospitals while leaving several questions open for further litigation.

The plan participants are represented by Keller Rohrback LLP and Cohen Milstein Sellers & Toll PLLC. Dignity is represented by Manatt Phelps & Phillips LLP, Trucker Huss APC, and Nixon Peabody LLP.

The case is Rollins v. Dignity Health, N.D. Cal., No. 4:13-cv-01450-JST, 10/29/19.

 

 

 

Kentucky’s New Pension Law Marks Unprecedented Reforms

https://www.governing.com/week-in-finance/gov-kentucky-pension-bevin.html?utm_term=Kentucky%27s%20New%20Pension%20Law%20Marks%20Unprecedented%20Reforms&utm_campaign=Kentucky%27s%20New%20Pension%20Law%20Marks%20Unprecedented%20Reforms&utm_content=email&utm_source=Act-On+Software&utm_medium=email

Kentucky Gov. Matt Bevin signing a pension relief bill on Wednesday.

Critics say it could weaken the state’s retirement system, which is already the worst-funded in the nation. 

After several failed attempts and a special legislative session, Kentucky — the state with the worst-funded pension system — now has a plan to ease the financial burden that employees’ retirements are taking on quasi-governmental agencies.

In signing the pension reform bill on Wednesday, Republican Gov. Matt Bevin said it provides “much needed financial relief” and “a viable path forward for our mental health agencies, rape crisis centers, local health departments and other community agencies.”

But opponents of the new law warn that the controversial changes could worsen the state pension plan’s already precarious finances.

The bill freezes the pension payments for quasi-governmental institutions for another year, essentially allowing them to pay half of their bill until it significantly increases after 2020. And in an unprecedented move, the law allows those agencies to leave the state’s pension system and pay off their debt, with interest, over the next 30 years; those agencies can also now move employees hired after 2013 out of the state retirement system.

Pension advocates say the new law threatens the solvency of the $2.7 billion Kentucky Retirement System and will likely leave it waiting decades to get the money it’s owed. The state employees’ plan is already one of the worst-funded in the nation, with just 16 percent of the assets it needs to meet its expected liabilities.

Bridget Early, executive director of the National Public Pension Coalition, says the legislation builds on years of state changes that have weakened the system.

“Instead of finding a way to get money into the system, they’ve all focused on benefit cuts,” she says. “That ultimately removed needed contributions.”

The bill was pushed for by presidents of the state’s regional universities, who say that increasing pension costs are squeezing their budgets and forcing them to raise tuition.

A similar bill passed the legislature during the regular session, but it contained extreme conditions that could have led to retirees not getting pension checks. Bevin vetoed it and called a special session to address the issue.

The state’s 118 quasi-governmental agencies can start leaving the Kentucky Retirement System in April. If they do, they have to provide other options for their employees, such as a 401(k) — but they don’t have to continue contributing money toward their retirement.

Most observers expect the law to be challenged in court, most likely by state Attorney General Andy Beshear, a Democrat and frequent Bevin critic who is running against him for governor.

In the meantime, there are eight months, a governor’s election and the better part of a legislative session until agencies are eligible to exit the retirement system. A lot could change.

“They didn’t do anything draconian that starts right now,” says Brian O’Neill, a spokesman for the Kentucky Public Pension Coalition. “There are still opportunities to work on this.”