Public Benefits Law

Question 1 

Prepare a memo outlining the critical questions we should ask of all new public benefit clients during their initial client interview 

Memorandum 

To: The Client 

From: Peter & Peter Law Firm 

Date: June 14, 2017 

Re: Public Benefits Questions 

Questions Presented 

Worker’s Compensation Benefits 

Is the injury you suffered caused by the employer’s failure to install appropriate safety devices? 

Is the injury you suffered in any way discriminatory in nature? 

Did you report the injury within the first 30 days? 

What type of injury did you suffer in the workplace? 

Were you in any way intoxicated, committing a felony, or engaging in willful misconduct? 

Disability Benefits 

Would you say your disability is permanent or temporary? 

Have you faced any form of discrimination in the workplace? 

Has the employer provided reasonable accommodation to enable you to work? 

Have you filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC)? 

Family and Medical Leave Benefits 

Do you suffer from any serious health condition? 

Does your spouse, child, or spouse suffer a serious health condition? 

How long have you provided services to your employer? 

Did you get the injury while on the duty at your company? 

Medicare Benefits 

Are you a U.S citizen? 

How long have you been a permanent legal resident in the United States? 

Does your healthcare provider accept Medicaid payment? 

Are you currently under the welfare program? 

Income Support Benefits 

Are you a U.S citizen or a legal permanent resident? 

Are you able to pay house rent and provide food for your family? 

How old are you? 

Social Security Retirement Benefits 

What is the gross income for your family members? 

How long have you been married to your spouse before the divorce? 

Do you suffer from any disability that has left you incapacitated? 

Explain, for each question, why we ask these questions during this initial interview 

All the questions in the memo are imperative in determining the eligibility of the patient any of the public benefits. On the interview on the worker’s compensation benefits, it is important to establish the client reported the injury within the first 30 days. According to the Labor Code Section 5400, an employee is expected to report the injury within the elapse of 30 days. Failure to report within the stipulated time will make it impossible for the employee to be eligible to automatic delivery of benefits. For instance, the client might not get medical treatment and the weekly cash payment benefits. Such a question is also important in advising the client on what should be done to get the compensation. The second question was on whether the injury suffered was a result of discrimination. This form of injury cannot be compensated under the worker’s compensation benefits. However, it might be compensated under the American Disability Act, but it will also depend on whether the client meets the eligibility criteria. Another similar question is on whether the injury was caused by the failure of the employer to install relevant safety equipment. Again, the benefits for this type of injury are not recoverable under the worker’s compensation program. Therefore, the two questions are important since they help in the decision-making process. They assist in advising the client on the next cause of action. other important questions are to determine whether the client was intoxicated, was committing a felony at the time of the injury, or engaging in willful misconduct. The section 3600 indicates that the injured person is the one who was acting within the scope of his/her employment. Any injury that is not within the scope of employment will not be compensated. The Labor Code section 3600 (a) (4) provides that employee who gets injured out of intoxication will not be qualified for the worker’s compensation benefits. However, under certain conditions, such as where the intoxication was as a result of alcohol provided in the workplace (office party) the employee can qualify for the benefits (McCarthy v. WCAB (1974) 12 Cal.3d 677). It is upon the employee to prove that his intoxicated state arose as a result of alcohol served at the workplace. Section 3600 (a) (8) indicates that a person is exempted from the worker’s compensation benefits is the employee sustained the injury while engaging in an illegal activity. For instance, if an employee was trying to steal a fluorescent tube and in the process, fell injuring himself, he will not be compensated. Similarly, the injury must have occurred within one’s scope of employment. If one is a secretary, he is not expected to perform the work of an electrician. If he gets electric shock and gets injured, he might not be compensated under the worker’s compensation benefits because he was acting outside the scope of his employment. 

The Title 1 of the American Disability Act (ADA) enhances the rights of the persons with disability in the workplace. Title I ensure that persons with disability are protected from any form of discrimination in the workplace. The question on whether the client has faced any form of discrimination in the workplace is vital because it is one of the grounds to receive compensation. However, the disability must be within the definition for disability under the ADA. One of the definitions is that the person must have mental or physical impairments that limits the capacity of the person to perform certain activities. Under the regulations 28 C.F.R. § 36.104, subd. (e)(1), disability includes the physiological disorders, mental or psychological disorders, and contagious and noncontagious diseases. Under the ADA Section 36.210, it is made clear that disabilities that are self-inflicted, such as through smoking and use of other substances is not included in the definition. Therefore, employee with that kind of disability might not get the benefits under the ADA. The question on whether the disability is permanent is important in determining whether the client is qualified for the benefits. Temporary disability conditions are not covered under the ADA. Any disability condition that lasts for less than six months is considered to be temporary. That explains why it is necessary to determine the type of disability the client has. The Title 1 of the ADA also indicates that the employee with disability is entitled to ‘Reasonable Accommodation.’ This explains why the question on whether the employer provided the accommodative environment to the client was necessary. Persons with disabilities might require that the existing environment to be modified for accessibility purposes. They might require assistants, modified work schedules, and interpreters. If the employee fails to provide the accommodating environment for the employee with disability, then that might be perceived as a form of workplace discrimination. However, the Title 1 on Protections Reasonable Accommodation, states that there are certain exceptions to providing the accommodating environment in the workplace. If the modification to accommodate the employee with disability poses a direct threat to the health and safety of other employees or it becomes an obstacle to business necessity. The other important question is whether the client has fined the charge on discrimination with the Equal Employment Opportunity Commission. The EEOC is a body that enforces the equal employment laws and takes necessary steps to ensure that those who are discriminated are compensated. The client will not be able to sue under Title 1 unless he/she has officially filed the discrimination charge with the EEOC. All the questions will be important in preparing the client as well as establishing if he is eligible for compensation under the ADA benefits. 

The Family and Medical Leave Act of 1993 makes it clear about who is eligible for the benefits. Questions on serious health issues on the employee or employee’s spouse, child, or parent are important. Such questions form the basis for the benefits under the FMLA 1993. The serious health condition of the employee need not be related to the injuries in the workplace. The period one has been working in a given company/organization is equally important. Under the FMLA, one must have rendered services for a period of 12 months. If the client has provided services for a lesser time, he/she may not qualify for the benefits. One important thing that the client has to know is that the time does not have to be continuous. As long as the duration of work falls under the ‘hours worked’ then the person will be get the benefits. On the other hand, though, it is vital for the client to note that the time aspect is not the only criteria to determine the FMLA benefits. The client must be able to demonstrate that he/she has worked for not less than 1,250 hours within the 12 months. The question on whether the client got the serious health complication at work is an important question. This is because the client will be advised to seek compensation using a different public benefits program and not the FMLA. The worker’s compensation benefits program will be the most appropriate if the employee gets injured in the workplace. 

The Medicare and Medicaid questions are vital in examining whether the client qualifies for the benefits. The Medicare is a federal health insurance that targets individuals over the age of 65. It is also helps certain group of children with disabilities access healthcare services. The definition for disability under the Medicare program is consistent with that in ADA. Not all the healthcare providers will accept the Medicare payments. That explains why it is important to inform the client about the same so that he can make the right decision. If the client seeks medical treatment in a hospital that does not accept Medicare payments, she might be forced to meet all the costs by him/herself. There was a question on whether the client is a U.S citizen or a permanent legal resident. This responses to the question will determine if the client is eligible for compensation. This owes to the fact that the illegal immigrants will not qualify for the Medicare. The person must be a U.S citizen or have lived in the U.S for the past 5 years, seeking a permanent residence. It is also imperative to determine if the client is under welfare program in the United States. The rationale is that most of people who are under welfare programs are also likely to benefit from Medicaid automatically. The Medicaid targets individuals or families from low-income backgrounds. Therefore, the information will help in determining if the client qualifies for Medicaid and advise him accordingly. 

Income support programs are common in the United States. However, the government mostly offers assistance for a temporary basis to the discourage dependency and complacency. Only the low-income earners, particularly those who are unable to acquire the basic needs get assistance under the Temporary Assistance for Needy Families (TANF). Important questions for the client include whether he is a U.S citizen, if he is able to meet his basic needs, and the age. The rationale is that only the U.S citizens qualify for the TANF. If the client is not a permanent resident, he is not qualified for the income support program Benefits. The question on whether the individual is able to meet his basic needs is imperative because it determines if one qualifies for the income support. As mentioned before, the program seeks to support only the low-income earners. Finally, the question of age under the supplemental security program is also important. The program targets the elderly, who get access to food at a subsidized price. 

The social security and general assistance are other important public benefits programs. The income of the client is vital in determining if they qualify for the supplementary nutrition assistance program. The program targets the low-income earners in the society, the disabled, and the old. If the gross income of the family members is enough to pay for their basic needs, then the client might not qualify for the supplementary nutrition assisted program. In the case of divorce, it is important to establish how long the two had been married. If the married had lasted for at least 10 years, then the divorced partner can receive the social security retirement benefits. However, the other spouse has to be above the age of 62 for the client to enjoy the benefits. The client can also receive the general assistance benefits in case he has become incapacitated. These responses will help in providing the client with the best services and ensuring the makes the right choices. 

Define which specific public benefit programs/laws are implicated by the potential response to each question and how the specific public benefit programs/laws are implicated by the potential response to each question. 

Questions on injury in the workplace fall under the worker’s compensation benefits program. The worker’s compensation program seeks to provide benefits to deserving employees. The questions in this category included type of injury suffer, whether the injury was caused by the failures by the employer to provide appropriate safety devices, if one was intoxicated, and whether reporting for the injury had been made within the first 30 days. The worker’s compensation program ensures that employee who get injured within the scope of their employment get compensated. 

The interview on type of disability, discrimination in the workplace, reasonable accommodation in the workplace, and filing charge with the EEOC fall under the ADA programs. The ADA programs aim at ensuring that persons with disabilities are not discriminated in the workplace. It does that by enhancing the creation of a favorable workplace environment. Questions involving family and medical benefits in the workplace are contained in the Family and Medical Leave Programs. The goal is to ensure that the employee can get relief in terms of paid leave for his own serious health conditions or that of the child, spouse, or a parent. The Medicare and Medicaid programs are aimed at enhancing the health of the American citizens. The Medicaid target the low-income persons, explaining why question of whether the client was under the welfare program was important. The questions that seek to establish if the client qualifies for the social security benefits and ‘welfare’ assistance fall under the income support programs. 

The implication of the responses to each of the programs is that the relevant agencies must be prepared to give the benefits to the legitimate clients. If the interviews demonstrate that the client meets all the eligibility criteria, he is entitled to the benefits. However, if the client fails to meet the eligibility criteria, it means that he may not be able to receive the benefits either in full or any at all. 

Question 2 

The federal law provides numerous characteristics that are protected from discrimination by the rest of society. One of these traits is disability or being disabled. This concept is clearly defined in Title 42 of the US Code section 12102 as “a physical or mental impairment that substantially limits one or more major life activities of such an individual”. In this respect, this definition clearly outlines an instance where the individual referred to has such impairments. There are laws that have been established to provide benefits and entitlements for individuals under the guidelines of federal government. The terminology however experiences significant differentiation when incorporated into the various laws. It is important to understand this variation of meaning when referring to the individual as it will be important towards the preparation of an attempt to seek federal and state government benefits. The difference is significant as it presents reasons why the client in question may have received benefits previously as a disabled person but the most recent applications have been denied. 

American with Disability Act 

In the context of the American with Disability Act (ADA) was enacted on July 26, 1990 whereby some of the component parts of the law would only take effect after particular deadlines. The policy was enforced as a civil rights law whereby it seeks to establish legal protection for individuals who are categorized as disabled. In this regard, the term disability is recognized as a legal concept and not one of medical term. Though the law indicates that a person with a disability is that one who has impairment physically or mentally which limits performance of major life activity, this definition also includes individuals who have had a record of such impairment. The meaning brought about by this law may apply to individuals who have received medical attention to minimize or eliminate the effect of their disability. There are individuals who may become disabled because of having a limb amputated. However, such individuals may carry out daily life activities through provision of artificial limbs though not as effective as previously. As per the definition provided by the Americans with Disabilities Act, individuals who fit the description provided are disabled. 

In the law, the term disability also refers to persons who do not have a disability but are regarded as having one. This definition may be somewhat confusing to the layman as it is self contrasting. However, further description of the individual provides a clearer perspective on the issue. One instance is where a person may have sustained impairment but it does not significantly prevent them from undertaking major life activities. In another case, the disability sustained only limits the ability of an individual due to the attitudes and beliefs of others towards them. Finally, there are cases where the person does not have a disability but their treatment by certain entities classifies them as impaired. A good example of a person being “regarded as” disabled is when a woman who is badly scared on her face from a car accident is denied a job as a customer service representative. Though she has the necessary qualifications for this job, the interviewer believes that clients may feel uncomfortable interacting with her. 

State Disability Insurance 

The State Disability Insurance is a statutory law in California taking effect from 1996. It is a state disability program whereby, individuals affected by a short-term disability. In this case, an employee can receive short-term wage replacement if they are unable to work because of illnesses or injuries that do not relate to the workplace, pregnancy or occurrence of childbirth. The California State Disability Insurance benefit also incorporates Paid Family Leave (PFL) where that gives workers a significant amount of time off of work to nurse their injuries or that of close family members. In light of this, the law recognizes disability as a medical term where the health of the individual is called into question. As the policy is intended for a short-term basis, once the particular duration is over, usually up to 52 weeks, the individual is no longer classified as having a disability. 

When an individual does not have the ability to perform regular work for eight days, he or she is regarded as disabled. This occurrence may be a result of physical or mental illnesses that prevent capability at the workplace. In this case, the individual is usually affected by medical conditions. Elective surgery or procedure serves as one of the conditions preventing an individual from engaging in regular work. Though the person does not have permanent disability he or she requires significant rest to be able to function normally. Pregnancy or child birth is also regarded as a disability as the mother cannot appropriately function at full potential due to biological disruptions. For the father’s case, childbirth may be a source of concern whereby his mind is not fully focused on work hence requires significant amount of time to care for wife as he bonds with the child. In another case, a disability may be present where the close family members are unable to care for themselves due to medical conditions. 

Social Security Disability (SSDI) & Supplemental Security Income (SSI) 

Social Security is yet another public benefit program that develops a significant description of the issue of disability. The Social Security Act provides similar description of disability for all eligible parties under title II and the adults in title XVI. It is evident that this is the inability to engage in substantial amount work reason being physical or mental impairment that can be proven medically. This definition provides that the disability in question may continue for a period not less than 12 months. In some cases, one may expect the disability to result in death. Such impairment are depicted to be a condition resulting from abnormal anatomical, physiological or psychological functioning. Clinical and laboratory techniques of diagnosis are depicted as acceptable measures of proving the medical grounds of the condition. Therefore, the occurrence of kidney failure may incorporate the reference of a disability that prevents the ability to perform substantial work. 

The Social Security Act may also refer to children as per title XVI usually referring to individuals under the age of 18. The definition of disability in this case is a little different from the one mentioned above. As this population is less likely to take up work, the primary difference is in the activity undertaken. Herein, disability refers to the medically determinable mental or physical impairment that significantly affects functioning markedly or severely. In some cases, disability may be a combination of impairments whose occurrence may lead to an expectation of death or may have an expected duration of not less than 12 months. In this regard, the state of disability under title II disabled persons can receive benefits guaranteed by the Act because of their contributions on their earnings. It may also serve disabled beneficiaries who are dependent on the insured parties. However, the SSI under title XVI is meant to serve disabled persons including children under 18 who have low income and insufficient resources to purchase. 

Workers’ Compensation 

The final description of disability is found under the Workers’ Compensation benefits laws. This public benefit program significantly differs from the State Disability Insurance as the injury or illness in question is directly associated with the workplace. Through payment of wage replacement and medical benefits the employee relinquishes his rights to sue the employer for negligence. In this law, not all injuries that an employee will get are covered by this insurance cover hence the need for clearly noting that compensation is only for personal accidental injuries that arise from the course of employment. As a result, health care providers help prove that an injury or disability is indeed a result of the work and determine its severity as a course for identifying the cash benefits that should be earned. It is evident that this public benefit law incorporates multiple levels of disability classification depending on the injury sustained. 

There is the temporary total disability where an injured worker completely loses wage-earning capability due to the injury but only for a temporary period. There is also the temporary partial disability where an individual worker’s illness is not only temporary but also leads to partial loss of ability to earn a living. Another disability classification is the disfigurement where an individual sustains serious and permanent scaring of the neck, head or face which may result in reimbursement for a maximum of $20,000. Permanent total disability is a case where the individual loses all power and capacity to earn a living, permanently. In such a case, the employee may continue working in an establishment while receiving weekly benefit from the government as long as the maximum amount is not realized. Permanent partial disability is an instance where part of the employee’s capacity to earn an income is lost permanently. Two primary types include schedule loss of use (SLU) and non-schedule. The former is evident where there is permanent loss of use for an upper or lower extremity. That is the arm and shoulder or the leg and hip respectively. It may also incorporate the loss of eyesight or hearing resulting in compensation for a limited amount of weeks. Non-schedule is presented when the part of the body is not covered by SLU awards including spine, heart, brain and lungs. The employee loses his or her wages but is compensated by benefits for as long as the benefits are present. 

Question 3 

Why Change Public Benefit Program 

In the US, it is evident that the healthcare system is somewhat distorted as there are millions of people who do not have access to appropriate healthcare. In this regard, the public benefit program I would change is Medicaid. Medicaid was created as a healthcare program for individuals and families that have limited resources. It was intended to serve as an appropriate government insurance program that covers individuals irrespective of age who have insufficient income to cover the costs of healthcare. The Medicare program which was established to cover the senior citizens and disabled persons below the age of 65 left a vast gap of individuals who were to yet to receive the substantial health cover to protect them from the various illnesses that may occur. This program would serve approximately 55 million individuals mainly American citizens. In this regard, the Medicaid would attempt to establish a system of healthcare insurance for the people who are unemployed, underemployed, poor and their beneficiaries including family members. This population is among the remaining between 320-215 million. 

The public benefit program is flawed in that it does not provide the appropriate and widespread cover that all citizens in the community require. According to the law, the program is a cooperation between the State and the Federal governments. As a result, this entitlement may be different in different states. Such an establishment creates significant disparities among the citizens in the country. Undocumented immigrants in California are provided with maternity care even though such a provision is not presented in the federal law. This shows that there numerous individuals in the country who are in the country illegally but do not receive significant benefits as the immigrants in California. The program in its current form allows immense flexibility for establishing and dictating how their Medicaid program. In this way, the only mandatory rule is that they seek approval of the Centers of Medicare and Medicaid Services. The HHS Secretary has authority to waive state requirements of the health and welfare programs as a measure of research to assist in achieving the objectives of the program. Through this practice, the individual states are more likely to make significant changes which may not actually provide the healthcare benefits that are essential to the residents of the state. 

In the Obama administration, some of the major highlights of the ruling government were to enact the Patient Protection and Affordable Care Act (ACA) and the Health Care and Education Reconciliation Act (HCERA). Through these amendments of the Medicaid program individuals earning up to 133% of the poverty line would be eligible for health coverage as long as the states they reside in participates in the program. This measure would allow the significant expansion of care rendered to the citizens and the ability to ensure a healthy nation. However, through the 2012 ruling of the US Supreme Court, this possibility was cut heavily as it was pointed out that the individual states do not have to accept the expansion as a requirement to receive the federal funds that they received before the enforcement of the law. Nearly twenty states have refused to incorporate these expansion laws of Medicaid program hence preventing nearly 4 million citizens from receiving the care accorded to the rest of the country. These states are particularly run by Republican leaders and have been touted as a mere political game rather than criticism of the flaws in the policy. 

Significant Changes to Make 

There are a number of changes that may be incorporated as a significant measure of ensuring the provision of health care to all citizens in a country some of the changes that I would make is reinstating the compulsory insurance. In this case, it serves as an appropriate measure of ensuring that the maximum numbers of people in the country have access to health care and treatment. Reinforcing the law that came about through the legislative process is important to increase the ability of the state and federal governments to ensure a healthy population. Through the US Supreme Court’s 2012 ruling, nearly 4 million citizens miss out on appropriate care and treatment as the leaders demonstrate their lack of concern for the population that has little influence on the political issues of the country. Maintaining a compulsory insurance for the citizens protects the needs of the families and adults who are slightly above the poverty line. It will include them whether or not they have children providing them with treatment benefits. A compulsory insurance by the federal government would require all states to participate and ensure the coverage of all citizens. 

Another change that this program should experience is the significant oversight in the implementation of the policy within the states. The entitlement program provides significant healthcare coverage through contributions by the state and federal government. However, through the current practice the program lacks the appropriate oversight necessary to guarantee the eligible citizens receive the quality care. Due to the high continued growth of people registered under the public benefit, the state governments have incorporated Managed Care Organizations popularly known as MCOs to provide cover for these beneficiaries. In California, there are 13.5 million people registered to the state’s Medicaid known as Medi-Cal program. Approximately 10 million of them are served by the MCOs. Through increased oversight the government can ensure actuarial soundness of these organizations as they provide sustainable costs that will control the costs of medical spending. 

The Medicaid program should ensure changes by increasing the patients’ access to health care providers. Though the eligible citizens of this public benefit receive primary and preventive care easily, it is evident that they have found it hard to get access to specialists willing to provide treatment. As per the current laws of the program, there is no mandatory measures to ensure the individuals in need receive the appropriate care. In some states such as New Jersey, the specialist doctors who served Medicaid patients were at a mere 40% while in Wyoming at 99%. Such an occurrence is a clear indicator of the negative impact of uniform practices in the entire nation. The variation in payment rates has propelled this case as it means in areas of low rates, providers are unwilling to offer their services. Dental care is one of the specialty practices that are difficult to find for majority of adult patients. Though the state governments are required to participate in mandatory dental coverage for children, it is an option for adults and the low rates offered make it even harder to find dentists. 

How Changes Impact the Public Benefit 

As per the current practice of the Medicaid program, participants are not required to engage in the expansion of cover for its citizens. In this regard, the twenty states that refuse to participate in enrolling a wider population lack an appropriate alternative to the practice. One of the numerous reasons why insurance cover is necessary for the citizens is due to the extensive research conducted on the issue. Approximately 45,000 annual deaths take place because the individuals do not have health cover. The population of a working-age that remains uninsured is 40% more likely to experience death as opposed to those with private insurance covers. In the case of a compulsory insurance policy the providers would be subjected to significant limitation on cover to guarantee citizens with the appropriate care. Through the participation of such a plan, the Medicaid program could effectively cover the remaining population without cover. The policy would also guarantee that leaders do not incorporate their political affiliations as a measure of denying uninsured persons health care. 

The state governments through its administration of this program should increase the oversight and control of its running. It is evident that more than half of the eligible Medicaid beneficiaries are served by MCOs whose intent is attracting clients and significantly generating profit. However, these organizations are depicted to have challenges setting capitates payment rates. By the year 2015, 39 states including Washington DC had contracted MCOs to serve the Medicaid beneficiaries. In this case, oversight on this practice would ensure that these organizations engage in appropriate financial practices that will guarantee their long-term existence so that they can serve the population. Through inapt choice of financial payment rates, such organizations may become bankrupt resulting in a high population lacking health care cover. Increasing oversight in the practices of the MCOs is incorporated as a measure of preventing a crisis. In the event that the capitated payment rates do not work, the state governments should have a back-up plan to cover health costs for the beneficiaries as required by law. 

One of the primary objectives of the Medicaid program was to increase the number of peoples who have access to health care. In this case, the main aim was not only to provide affordable treatment of primary concerns but also specialty needs. The program in its current state has been ineffective as it does not guarantee access to specialty care. Adults in particular are the one who suffer the most from this program as they are denied care as the doctors within a particular field do not accept the payment rates offered by the government. The state and federal government may incorporate various measures of generating additional funds that guarantee all beneficiaries with the care and protection they seek. Taxation practices that link funds directly from taxation could help increase access for the population served by Medicaid. This practice could enable the government program to provide a higher quality of care for persons suffering from various chronic illnesses. 

Question 4 

Medicaid 

Upon declaring one’s income for a significant amount of time, the individual in the case qualifies for the Medicaid program. The program was established as a measure of covering individuals with insufficient resources to effectively take up a health insurance cover. When the policy was enacted in 1965, it was merely intended for low-income families hence having a child was an essential requirement towards enhanced eligibility. Together with Medicare, these programs would cover a total of 289 million individuals out of a possible 320 million. In this regard, it was necessary to find ways to ensure nearly all individuals in the community receive the required cover to receive health care and treatment. The 30 million or so people who missed out on health insurance include working poor, who lack earn more than the stated limits of Medicaid but too little to afford a private insurance cover. This category clearly belongs to the individual in this case. Other members of this population include low-income earners who do not have the children hence disqualifying them from initial structure of the Medicaid. Undocumented immigrants also suffer a similar fate. 

However, the significant amendments made through the Affordable Care Act (2010) ensured the eligibility of the worker. The law is popularly known as Obamacare which is meant to be an expansion of the Medicaid benefit such that it includes members who were initially left out. By declaring his income, the individual clearly shows that he is within the 133% of the federal poverty level. The policy through its enactment was intended to serve the childless people who work but for very low wages as is the case in this scenario. The policy would enable state offices to provide the busboy an affirmation towards receiving primary care among other benefits associated with the provisions of Medicare. Having an income may enable the individual to qualify for higher benefits in the medical provisions. In this case, the ACA creates exchanges in benefits for individuals to purchase where income is between 138% and 400% of the federal poverty line. By declaring his income the busboy is also exempt from tax penalties that may be incurred due to failure to carry health insurance. Different tiers of a health care plan are provided as they cover a range of costs in medical costs from bronze (60%), silver (70%), Gold (80%) to Platinum (90%). 

Worker’s Compensation 

Declaring income enables the busboy to qualify for worker’s compensation. In this regard, the worker is required to report cases of injuries sustained while at the workplace. However, many instances usually go unreported as the workers fear retaliation from the employer. As per the labor code section 5400, “ no claim to recover compensation under this division shall be maintained unless within thirty days after the occurrence of the injury which is claimed to have caused disability or death.” This means that the worker should immediately report cases of injuries taking place within a month after it has taken place or risk having the claim disapproved. The labor code section 5405 requires that claim should start within a year. 

Unemployment Insurance 

This public benefit program is a joint social insurance funded by both state and federal governments. In this regard, the government helps unemployed individuals to cover the costs of bills incurred while they are looking for work. The law entitlement enables the unemployed person to receive weekly payment that are strictly covered by the Unemployment Insurance code section 100 stating the individual lost their job “through no fault of their own”. In this regard, there are significant issues addressed such as the individual showing that through a base period they were able to receive enough wages to qualify for the claim, that they are physically capable of working and are available to receive an employment as they actively look for work. 

Temporary Assistance to Needy Families 

The busboy’s action of declaring his income to the government is a significant factor that leads to the qualification of Temporary Assistance to Needy Families (TANF). Following high reliance of welfare by citizens and immigrants alike, the Personal Responsibility and Work Opportunity Act of 1996 was passed into law. This reform changed the issuing of assistance to the needy members of the society. Under Title I, the entitlement was limited to no more than five years of lifetime benefit. The federal funding under this reform would be provided as a block grant therefore assistance does not have to be in the form of cash. For instance an individual can receive help in child care, paying for college, starting a business, allowance for clothing, heating expenses, and work-related transportation. However, section 401(b) the TANF entitlement does not necessarily mean that all individuals who meet the eligibility criteria would receive the benefit. 

How Income and Work History Enhances Eligibility for Public Benefit Programs 

In the case of Medicaid, it is evident that the amendments made by the Affordable Care Act of 2010, income would be the primary factor of ensuring eligibility. The Medicaid entitlement required the citizens to demonstrate their need for medical cover by the size of the family. The couples in society who demonstrated having at least one child and lacked sufficient funds through their income to sustain the basic needs of the child would be able to qualify for the entitlement. Section 1115 of the Social Security Act would provide the HHS Secretary the essential authority to waive regulatory requirements within this program. For instance, states could expand the coverage of the program to the individuals or couples without children. This practice was not common for many states but was a probable action by state governments. 

The above scenario of the busboy working at a restaurant shows that by declaring his cash income to the government, he has created significant working history. In this case, the individual identifies that despite the attempts by the restaurant owner to circumvent taxation laws, he reported his earnings to the government. The major issue here is whether or not an individual has the capability to set aside a significant amount of income so as to purchase the lowest package of private health insurance. By declaring his income to the government, the individual is depicted to be within the approximate level above the federal poverty level. In this regard, the busboy can enroll for the Medicaid entitlement and receive appropriate healthcare provisions depending on the outlined state plans. 

The work history and the reported income earnings of the individual are integral to receiving the benefits of workers’ compensation. In this case, it is evident that the employer in question by providing cash-in-hand wages is attempting to circumvent taxation laws. This practice creates the possibility that he may do the same in the case of an injury. In the case that the busboy sustains an injury while at the workplace, failure to declare income immediately disqualifies him for the benefit. The employer may also refuse to offer pay to the worker on a temporary total disability. In this regard, the worker may seek the assistance of the law by reporting the employer to Office of Workers’ Compensation Programs. By performing his duty as an American citizen to report his earnings to the government, he has the necessary proof of wages that have been missed. 

The action of the busboy to declare wages to the government is a clear indicator of the amount of income he would usually use to pay bills and other basic costs within a week. Under the Unemployment Insurance code section 100 it is essential that the worker provides proof that he lost his job through no fault of his own. As a result, he is actively seeking employment that would help restore his ability to rely on himself. The work history through the reported weekly wages for an extended amount of time would help demonstrate that he was indeed holding a job. By declaring his earnings, the relevant department of this benefit will ascertain that the employer has not made appropriate contributions for the unemployment fund. The individual must also provide proof that he is indeed ready to take up any job opportunity that arises from the numerous ones applied for. 

In a similar social insurance program, the Temporary Assistance to Needy Families as provided by the federal government is an aid to assist in families and individuals in need. Through this reform, the federal government ended cash entitlement. It is required that individuals are actively seeking work. The busboy’s effort to declare income and work history at the restaurant establishment, it is evidence of purpose and intent to seek work. He shows that he is available to participate in work requirements if any arises in their locale. The history of working within the minimum of 30 hours per week for the busboy shows that the recipient meets the work requirements to become eligible for the state and federal funding. The reported income of the individual is appropriate proof that the resources are not sufficient for meeting numerous needs including heating or paying for college tuition. 

Question 5 

Providing legal services to a client who appears to have a number meritorious legal claims is critical towards developing an effective plan that will result in ultimate success for the client. The client at hand Sue Freely, has been denied public benefits under the ADA and was subsequently relieved from her job post while on leave under FMLA. In this case, it is important to take a number of approaches that will ensure the law firm receives payment upon success of the lawsuit. The first of them is notice to the employer on the violation of law against the client and a request to seek reinstatement of the client immediately. If this is not feasible, the client may progress into litigation which will include presenting the case in a court tribunal where the lawyer can appeal to a jury of peers and seek payment from the employer with significant damages. 

Notice to Employer 

In the case presented by Sue Freely, it is evident that the employer in question has violated the law by failing to accommodate the client under the laws of ADA and subsequently the FMLA benefits when he fired her. Therefore, a notice is presented to the employer as a first measure where the client seeks resolution of the matter without a lengthy procedure in court. Through assistance from the lawyer, the client can negotiate terms of settlement within which the employer must comply before she is reinstated back to her previous working position. This practice seeks to reduce the costs incurred for the employer and also minimizes the costs that the client will have to pay. However, many employers try to take their chances in court as they believe that the relationship with their previous employees is already broken and cannot be amended. Such an occurrence is potentially good for the law firm as it may significantly increase the pay that will be realized. 

Jury Appeal 

An attorney should consider the prospect of jury appeal on the case as it significantly determines the outcome in FMLA litigation. In this respect, Sue Freely’s case in one that is especially sympathetic as the party was fired by her employer while taking medical leave as indicated by law. The plaintiff may have taken leave for a severe medical condition and the employer viewed that her continued employment could lead to significant increase in medical premiums for the organization. Such a case is presented as “kicking a man while he is down” a clear notation of the lack of concern for human life on the employer’s part. The plaintiff should be able to present proof of a serious illness having taken place while she was on leave. Additionally, she should present to the court that indeed after the end of her leave she had recovered and was capable of returning to her customary duties at the workplace. This presentation is an effective means of demonstrating high level of callous on the employer’s part as seen in his treatment to the employee’s suffering. He may also be portrayed as indifferent to the legal mandates to the FMLA as he seeks an easy way out by causing more suffering to the plaintiff. 

The presenting problem in this case is clear that the actions of the employer have significantly inflicted emotional distress on the employee as per statutory common law. The employer may risk paying millions of dollars in a jury verdict. In this case, it is evident that Sue identifies as a disabled person where the term disability is recognized as a legal concept and not one of medical term. Though the law indicates that a person with a disability is that one who has impairment physically or mentally which limits performance of major life activity, this definition also includes individuals who have had a record of such impairment. The meaning brought about by this law may apply to individuals who have received medical attention to minimize or eliminate the effect of their disability. If the medical leave was a means of caring for a family member the jury verdict may be worse off for the employer. The presentation of the case would present her as a hero by sacrificing her time to care for another being even when she is incapable of carrying out daily life activities normally. The employer would be punished severely by the jury of peers. 

A Chicago case, Schultz v. Advocate Health , resulted in harsh reprimanding for the employer when an employee was awarded $11.65 million in 2002 after the former retaliated against the latter and subsequently fired from his job. The plaintiff had taken leave of absence under the FMLA as a means of taking care of his ailing father. The case incorporated significant state law demonstrating the institution’s lack of concern and infliction of emotional distress intentionally. A similar case, Lore v. Chase Manhattan Mortgage Corporation, a jury verdict awarded the plaintiff with $2.2 million that would later rise to $7.6 when including damages. The 2008 court case portrayed a bank executive who had been denied FMLA leave by the company and after significant attempts he was fired from his post. The action by the employer is depicted as retaliation to the employee for insisting on leave. 

These cases where the plaintiff is awarded are presented as exception as there are numerous times where the jury ruled in favor of the defendant. In such cases, a number of reasons may arise as to employer’s reason to deny the employee FMLA leave and subsequent termination of employment. One of the major causes is seeking leave when the worker is about to receive discipline investigation. Another may be that employee had chronic absenteeism or problems with attendance. As a result, he or she may have used every possible excuse to avoid working. An alternative reason for termination is that the employee or the relative family member did not have a medical condition that required absence from work or did not give notice to the employer as is required by law. In this regard, the employer shows that the request for leave did not qualify for FMLA protection. If the defendant can prove any of the above points, the client risks losing the case. The attorney should be appropriately prepared to face such a challenge as the intent is to prove that the employee is a fraud. The action of the lawyer is to present proof of employee’s innocence, the truth about being in serious health risk, positive working record and reports of an exemplary employee attitude in cases such as working late into the night without significant overtime pay. 

Statute of Limitations 

There are a number of statutory laws that apply in seeking compensation from the employer. The first is the client must make a complaint for the violation of FMLA guidelines as per 29 U.S.C. section 2617(c) (1)-(2). This dictates that a worker should report the violation within two years since the “last event constituting the alleged violation” while in some cases it may be extended to three years. In the latter case, the extension is provided is the employer knew or showed reckless disregard for the action taken despite the prohibition by the law. There are states that have shorter limitations on the period to report the case hence the need to check the statutes of the state. 

Remedies 

Once the case goes to court, it is less probable that the client will seek restoration of employment. However, it remains one of the primary forms of relief that is provided by the Act. In Sue’s case, this is highly unlikely as the organization willfully terminated her employment because she would cause increased premium costs. Other remedies may include, back pay for the lost benefits, front pay when reinstatement is not possible, liquidated damages, damages for emotional distress and limiting damages through after-acquired damages.