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The Impact of the Supreme Court’s Decision on Health Care Uncertainty Reigns and Business Should Prepare

June 29th, 2012

Despite the recent U.S. Supreme Court opinion, upholding the Health Care Law Congress passed in 2010, Republicans in Congress are already pledging prompt corrective action and Mitt Romney, a candidate for President, said, if elected, it will be his first act as President to repeal health care.

On the other hand, Michigan Governor, Rick Snyder and Michigan House Speaker Jase Bolger have pledged to complete the enactment of pending legislation – SB 693, to create a new “MIHealth Marketplace Act” which would establish a state health exchange to help Michigan citizens obtain the healthcare coverage required under the federal mandate at reasonable rates.

The federal Act requires the states to design and implement an exchange for that purpose by January 1, 2014. If a state fails to do so, its citizens will be served by an exchange created by the federal government. SB 693 was introduced to comply with this requirement of the federal Act, and was passed by the Michigan Senate in November of 2011. Consideration of that legislation by the House of Representatives has been held in abeyance pending the issuance of the much-anticipated Supreme Court decision.

It remains uncertain, however, what the states will do, including Michigan, about Medicaid. We will just have to stay tuned! In the meantime, please contact Lansing Appellate Attorney, Graham Crabtree, of Fraser Trebilcock at 517.377.0895 with any information or questions or visit www.fraserlawfirm.com.

U.S. Supreme Court Upholds Health Care Law

June 28th, 2012

Today, the United States Supreme Court issued an historic ruling, and upheld the Affordable Care Act (ACA) which became law on March 23, 2010. The ACA created sweeping reform to the health care system in the United States. The driving principles behind the ACA are to provide affordable health care to all Americans, reduce the growth of the health care costs and improve the health of our communities.

At the heart of the Court’s ruling was a determination that the individual mandate of the ACA is constitutional. The individual mandate requires nearly all Americans to purchase and maintain health insurance. The Court determined that the penalty associated with the individual mandate is a permissible tax that can be imposed by Congress under the taxing power.

The ACA required that States comply with new eligibility requirements for Medicaid or risk losing their federal funding. Specifically, the ACA expanded the Medicaid program from covering medical services for particular categories of vulnerable individuals to a program designed to meet the heath care needs of the entire non-elderly population with income below 133% of the poverty level. The Court determined that the States could hardly anticipate that Congress would transform the program so dramatically. As such, the Medicaid expansion violates the Constitution by threatening the States with the loss of their existing Medicaid funding if they decline to comply with the expansion. The Court’s solution to this issue was to strike down, as unconstitutional, the ability of the Secretary of Health and Human Services to withdraw existing Medicaid funds from a State that fails to comply with the requirements set out in the expansion.

It is important to note that with the ruling, the health care industry will have some relative certainty to go forward to implement plans they had drawn since the law was enacted. And the states will now move forward to implement those provisions they are obligated to undertake.

While there may be Congressional skirmishes and efforts to amend or repeal the law, for now the message is that Congress has spoken.

Fraser Trebilcock’s Health Care Practice Group will provide additional coverage and analysis of the Supreme Court’s ruling throughout the day.

The constitutional rights of free speech and petition for redress of grievances

March 30th, 2012

The United States and Michigan constitutions guarantee our rights to free speech and to petition the government for the redress of grievances. During the past week, we have seen graphic and contrasting examples of these rights in action. The federal and state constitutions protect both examples equally. However, one would hope to hear less of the local speech and would also hope that the national example would have a positive influence upon the nature of political discourse in this country and state.

In Detroit during an open meeting of the financial review team charged with the task of reviewing the City’s financial affairs and working to develop a workable solution to the City’s dire financial condition, the minister of a local church shouted his disapproval of the financial team’s work and said words to the effect that rather than allow the team to “take over the city, we would burn it down first.” The anger, resentment and ignorance which were the foundation for that statement graphically illustrated at least one of the reasons for Detroit’s deterioration during the past 45 or more years.

In marked contrast to the speech of the Detroit minister on Monday March 26, the United States Supreme Court on the same day began its unprecedented 3 days of hearings regarding the challenges to the federal health care law. While the streets of Washington DC were filled with opponents and supporters of the law, the attorneys for the law’s challengers and defenders presented their arguments before the highest court in the land. They continued their presentations on the 27th and the 28th; a decision is expected in June of this year.

The adoption of the federal health care law has angered many persons and has provided fodder for many in the media and on the campaign trail. In many instances we have heard emotionally-based statements about the law. Regardless of one’s personal opinion about the federal health care law, one had to appreciate the fact that the courts, and at the end of the day the Supreme Court, provided a forum within which the law’s challengers and proponents could make their arguments. Also, during the evening newscasts after each day of the Supreme Court’s hearing, especially those on National Public Radio, guest commentators provided keen and reasoned insight about and comment upon the arguments of the health care law’s opponents and supporters. They also presented their respective predictions as to how the Justices would rule. Sitting side by side in a radio studio or in a court room, the advocates respected each other and respected the process in which they were participating. The contrast with the speech at the Detroit meeting was obvious and striking.

Litigation is not always an appropriate avenue to redress one’s grievances. It is certainly not going to solve the City of Detroit’s dilemma. However, our state and federal courts provide a forum and a structure within which one’s claims and concerns can be addressed and ruled upon in a reasoned and rational manner. Time will tell how the Supreme Court will rule in the federal health care case. However, we can be sure that the attorneys who represent the non-prevailing side will not threaten to burn anything.

For more information, please contact Lansing Attorney Mike Perry or visit www.fraserlawfirm.com.

We are building a bridge to nowhere, if you don’t know what is on the other side!

September 12th, 2011

*The views expressed in this article of those of the author and in no way attributed to Fraser Trebilcock or the lawyers and staff within the firm. A similar version of this article appeared in the September 12, 2011 issue of Crain’s Detroit Business.

DETROIT, MICH. + WINDSOR, ONT. — With all the debate and discussion as to who should build a new bridge, we are missing the point as to why a new border crossing is so important. Sure we can say a new bridge is important because the U.S. conducts more trade with Canada than any other country or it is good to have an additional border crossing for redundancy in our crossings, but what does it mean for us here in Michigan?

First, we as Americans know very little about our Canadian neighbors in part because we fail to know Canada as well as Canadians know America. It is time that we, particularly in the Detroit area, consider Windsor-Essex part of our region. Instead of looking across the river and standing in awe that it is another country, we need to look across and recognize our neighbors as our business partners and welcome them as members of our community.

We take for granted our proximity to Canada and do not fully understand the unique relationship we have with Canada. From cars to energy to actors, athletes, agriculture and financial markets, we have a lot in common and a lot to better understand. For example, Windsor was recently named one of “The Top American Cities of the Future,” by FDI Magazine, a publication of The Financial Times. (Cities from Canada, the United States and South America were included in the “American Cities” competition.) That award was given after the Conference Board of Canada said that the Windsor-Essex economy will outperform all other Canadian cities in 2011. That includes outperforming Toronto, Vancouver and Montreal. Windsor also was named in the top 7 of intelligent cities, by the New York-based Intelligent Community Forum, a non-profit think-tank.

Despite the collapse of the auto-industry the Windsor-Essex region remains strong in manufacturing, renewable energy, logistics/warehousing and agri-business. For example, Windsor-Essex has the longest growing season in Canada, averaging 212 days, and the largest greenhouse industry in North America for vegetables and exotic flowers. With a similar growing season, why can’t we have move quicker on the various urban farm initiatives or take Canada’s lead and build just as many greenhouses on this side of the border. In addition, there are currently 14 commercial wineries with internationally recognized wine that we could work with Tourism Windsor-Essex-Pelee Island to promote. And just 45 minutes from the border in Harrow, Ont., the Canadian Government created the Greenhouse & Processing Crops Research Centre where new technologies are created affecting the agricultural industry. Why can’t we link that Centre with all the food technologies being created in and around Battle Creek. We can’t in part, because we are not taking the time to develop regional partnerships across the border to mutually benefit both economies and both nations. We are too focused on ourselves.

In addition to agriculture: Windsor-Essex is investing in the creative industries including digital media and working with their universities and colleges to keep rising talent in the region. Why can’t we work together, as a region to keep rising talent in the region?

As for Ontario’s film industry, given the uncertainty of Michigan’s film industry, Windsor-Essex may just become Hollywood’s next big thing as Ontario has a permanent Film and Television Tax Credit, with an additional 10 percent for productions outside of the Greater Toronto Area (GTA). Regardless of what happens with the film credits here in Michigan, we should promote Detroit together with Windsor-Essex to the entertainment industry and continue to build upon the existing film industry in Detroit, while allowing it to expand into Windsor-Essex. Should Detroit loose its clout in the entertainment industry we can work with our Canadian neighbors to still keep the industry in the region. Instead of going to work in Detroit, for example, production crews, talent agents and others would just cross the border and work in Canada, just like the 7,000 Canadian health care workers do everyday to work in Detroit-area hospitals.

Organizations in Detroit and Windsor are working together. The University of Windsor is working with TechTown and has joint programs with The University of Detroit, The University of Michigan Dearborn and Wayne State University. (In full disclosure, the University of Windsor is a client of mine). While Windsor Regional Hospital and Hôtel-Dieu Grace Hospital have developed a strong partnership with the Henry Ford Hospital in Detroit for patients in need of emergency cardiac care. However, to enrich our region with culture and business acumen on both sides of the border, more partnerships around culture and business must matriculate.

The Detroit Windsor relationship is more than just about a border crossing, an annual celebration of our freedom with fireworks, air races or a periodic visit to Erie Street. It is about jobs and commerce, history and culture and the unique geography we share with each other that no other North American city has. While Detroit and Southeastern Michigan’s population may have declined over the past 10 years, if we include Windsor and Southwestern Ontario, we have a much stronger story to tell. In promoting the region, the Windsor-Essex Economic Development Agency says, “economic prosperity does not recognize borders.” We in Michigan should not allow a border to stand in between us and our ability to better appreciate the unique opportunity we have with our Canadian neighbors — To grow our economy and stand out from others. In fact, we should build a bridge between our cities that will be used to enhance our economy as one regional economy.

Daniel Cherrin is an attorney, mediator, public relations executive and lobbyist with Fraser Trebilcock in Detroit and Lansing.

Seeking Consensus Through Controversy

July 26th, 2011

Why do we always have to wait for the last hour before something gets done in Washington? No, I take that back, Congress exceeds the deadline by which to decide on important issues so they or The White House pass extensions on laws, such the Transportation Equity Act or the No Child Left Behind Act or even the budget so they by time before a decision has to be made. The stalemate on what to do about the debt ceiling is no exception and just the status quo. While the Democrats and Republicans have been talking there seems to be an impasse, where no one is agreeing with anybody, even on the most basic of issues. It seems that Washington, needs the support and guidance of a neutral third party to resolve these disputes and bring some closure to a number of long standing issues, most importantly today, the debt ceiling.

In public policy dispute resolution, for example, all the interested stakeholders come together with the help of a third party neutral who will assist the stakeholders in reaching consensus. Public policy dispute resolution provides for a nonpartisan process for resolving public policy disputes, and has proven successful at all levels of government. In fact, it is emerging as a more effective way of dealing with some of the most polarizing issues. It leads to innovation, creative solutions and relationship enhancement. But is that what Democrats and Republicans want?

The National Policy Consensus Center has found that legislators are becoming problem solvers, facilitators and conveners of issues vital to their state. Yet in Washington, D.C., Members of Congress fail each year to come to a consensus on health care, the budget, various re-authorizations and the debt ceiling.

Today, public policy disputes have the potential of polarizing communities with the affect of delaying important decisions on vital issues of public policy, often resulting in diluted policies or no action at all. Facilitation or mediation helps in resolving some of the high-profile policy disputes and find resolution through controversy and clarity amidst chaos. To assist governments in resolving disputes by and between each other, the disputants need a trusted third party neutral, who is knowledgeable about the issues and the process, while being sensitive to the politics of the day. A university provides elected leaders with an unbiased academic approach to public policy dispute resolution. Perhaps the President, the Speaker, Senate Majority Leader and their colleagues should turn to a University President or perhaps neutral world leader such as the Prime Minister of Canada or Tony Blair or perhaps co-mediators with former President’s George Bush and Bill Clinton, to help resolve the issues.

Policymakers can avoid making difficult decisions on controversial issues by creating a process by which public policy disputes can be resolved. Through a facilitated consensual process, issues such as government shutdowns, delayed projects and other missed opportunities can be avoided and we can all move on to other issues to help our nation move forward.

Decisions that are reached collaboratively can result in high-quality outcomes that are easier to implement, receive fewer legal challenges, make better use of available resources, and better serve the public.

Collaboration is not appropriate for all decisions. It is not necessary or recommended to use a formal collaborative process for routine, simple, or urgent decisions. Collaborative processes are often effective when applied to complex policy questions that affect multiple, interdependent interests, where all the diverse parties affected have compelling reasons to engage with one another in a search for a joint policy or program outcome, and where sufficient time and resources are available to support the process.

However, the following conditions help to sustain collaborative processes:

Clear Role and Purpose
Transparency of Decision-Making
Interest-Based Decision-Making
Every Effort to Bring Affected Stakeholders into the Process
Stakeholders Represents Organized Constituencies
Upfront Exploration of Interests
Common Understanding of Problems and Joint Fact Finding
Policy and Technical Expertise
Respectful and Authentic Process
Transparency of Products

Washington did not have to wait this long. If the parties talked earlier and learned about the real issues underlying the bigger ones, than perhaps today, we would be talking football instead of debt ceilings. It is time we brought in neutrals to help resolve the bigger issues plaguing our nation.

For more information, please contact Fraser Trebilcock or Daniel Cherrin at dcherrin@fraserlawfirm.com.

Cutting through the clutter

June 16th, 2011

This week marked the official kickoff of the 2012 Presidential Election. From now until August 2012, we will be bombarded with candidates announcing their candidacy, being critical of each others policies and otherwise complicating the issues that are now before Congress.

This already in an age where we are bombarded with information. So much information that we just don’t know what to believe. WorldPublicOpinion.org, a project based at the University of Maryland, conducted a study that found “strong evidence that voters were substanitally misinformed on many of the issues prominent in the (2010) election campaign.”

Congressional Quarterly featured this issue in this week’s edition of CQ Weekly. Despite having access to a lot of information, what this study and a recent CNN-Opinion Research survey found was that there is still a knowledge gap of how much we know what goes on in government and how it impacts our lives. In fact, according to the survey, we do not have a clue about which level of government (local, state or federal) does what and for whom. In fact, according to the CQ article, “President’s get blamed for local problems, mayors for national problems.” In fact, I would get calls almost every week from Detroitiers when I was the Communications Director for the City of Detroit and Press Secretary to former Mayor Kenneth Cockrel, Jr. about issues out of the realm of local government. Also, as a intern for William D. Ford (Ann Arbor) in the 1990′s, I would get calls from constituents wanting their street lights fixed.

So as we being a new election cycle, it is important to know what issues are important to you and who is responsible for those issues at either a local, state or federal level. It also is important to reach out to those people and offer your opinion and solution.

In addition, it will benefit you to have a relationship with those individuals so that you can help shape public policy. Retaining a lobbyist or someone who has the connections can prove to be beneficial to you as an individual or as a business. Lobbyists not only know the people involved, they know their personalities and politics surrounding issues. They not only know the policies, they also know the process and can help you navigate above and beyond the rhetoric, to help you achieve your business objectives.

For more information, please contact Daniel Cherrin at dcherrin@fraserlawfirm.com or visit www.fraserlawfirm.com.