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CONSIDERING ADDITIONAL TYPES OF DISABILITY OR LEGAL RELIEF FOR YOUR SOCIAL SECURITY DISABILITY CLIENTS

By Faye Riva Cohen, Esq., assisted by Gina Y. Mosley, Esq., of The Law Office of Faye Riva Cohen, P.C., Philadelphia, PA

Published in National Organization of Social Security Claimants’ Representatives Forum

March 2010 and April 2010

Social Security disability attorneys or representatives are often not familiar with some of the civil rights laws and other remedies which may be available to their clients, beyond, or in lieu of, Social Security disability benefits, and which may result in additional or alternative sources of financial proceeds for their clients. Also, as Social Security disability claims have greatly increased due to the lagging economy, client advocates may encounter many persons who will not meet the stringent Social Security disability standards, but may be able to qualify for other relief. This article will explore some of these laws and remedies.

Due to the complexity of some of the remedies and the intricate interaction between them, which often require balancing and negotiation, it will be beneficial to client advocates to establish a relationship with one or more attorneys who practice in the areas of law noted below if they do not, in order to determine if other remedies may exist for their clients. As many of these additional remedies have stringent time deadlines, inquiries should be made as quickly as possible to other counsel as to whether a client has additional remedies and the viability of pursuing them. Indeed, failure of an attorney or a representative to consider these remedies may be the source of a professional liability issue depending on the outcome of a client’s case.

An applicant for Social Security disability benefits frequently has a history, such as his medical conditions or work history, which has brought him to the position of applying for this type of benefit, which requires that he is deemed unable to perform substantial gainful work for a minimum of twelve (12) months or he has a condition that will result in death.  That history often involves his employment situation and the nature of that situation can serve as the basis for additional remedies.  Therefore, a thorough interview with a potential client should determine:

  • Whether that person suffered an injury at the workplace;
  • Whether his employer terminated him as a result of suffering the injury after the employer was informed that it was a work-related injury;
  • Whether the injury, work-related or not, still permitted him to work for his employer with a reasonable accommodation by the employer. The courts’ interpretation of “reasonable accommodation” is discussed below;
  • Whether the employer refused to make the reasonable accommodation and instead laid off or terminated the employee;
  • Whether the employee, who formerly did not have any or few performance problems, suddenly received discipline or write-ups after the injury;
  • Whether the employer should have been aware that the employee was suffering from physical or mental problems, and instead of helping him manage those problems, terminated him, laid him off, or eliminated his position;
  • Whether the employee had available to him short and/or long-term disability benefits, some type of retirement disability or union benefits for which he could apply.

THE AMERICANS WITH DISABILITY ACT AND ITS AMENDMENTS

Significant legislation has been enacted to protect employees who have been injured in and out of the workplace and who are suffering from an illness.  The Americans with Disabilities Act of 1990 (hereinafter “ADA”) was intended to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C.A. §12101 et seq. The Act applies to employers with 15 or more employees and prohibits discrimination against qualified individuals on the basis of a disability in regard to job application procedures, hiring, advancement, termination, compensation or job training. See 42 U.S.C. §12112(a).

In the years since the Act’s passage into law, the U.S. Supreme Court has handed down specific opinions which have curtailed the reach of the ADA and have greatly limited the definition of a disability under the ADA. Large clusters of people, initially covered by the ADA, have been shut out from the intended far-reaching protections as a result of those court opinions.  The result has put a heavy burden of proving a disability on the plaintiff, which was clearly against Congress’ intent.  See Sutton v. United Airlines, Inc., 527 U.S. 471 (1999) and its companion cases and in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002).  As a result of these Supreme Court cases, lower courts have found that individuals with a range of substantially limiting impairments are not people with disabilities.

In order to rectify this situation, Congress passed the Americans with Disabilities Act Amendments Act (hereinafter “ADAAA”), which became effective on January 1, 2009. The ADAAA greatly broadens the relevant definitions of the ADA and gives renewed hope to disabled individuals who are ready, willing and able to work with a reasonable accommodation. The Act’s new language also enlarged the definition to include a larger array of individuals who are “regarded as” having a disability.  Additionally, mitigating factors are no longer assessed in the evaluation of an individual as disabled.

If one has a client who lost his job due to a negative job action and who is covered by the newly expanded ADAAA, but had no recourse but to initiate a Social Security disability claim, either because his condition worsened or because he could not locate another job with his disabilities, he will be required to file a claim with a government agency at the local, state or federal level in order to protect his rights and preserve his right to bring later litigation, if necessary.  That government agency may hold a fact-finding conference or a mediation, depending on the agency’s practice, and while the matter is at the agency level it may be settled without resorting to litigation. Bear in mind that the ADA claim can proceed independently and concurrent to the Social Security disability claim.

Employers are required by the ADAAA to reasonably accommodate those employees known to have a disability to allow for the fulfillment of essential job functions.  However, these employers will not be required to make accommodations which will cause an undue hardship.  Under U.S.C. §12111(9), those reasonable accommodations include, but are not limited to, (1) making existing facilities used by employees readily accessible to and usable by individuals with disabilities, (2) job restructuring, (3) modification of equipment or devices, (4) appropriate adjustment or modifications of examinations, training materials or policies, and (5) the provision of qualified readers or interpreters.

It is the employee’s responsibility to inform his employer that an accommodation is necessary in order for that employee to fulfill his essential job functions.  It is also important to know that the new amendments make it clear that employees who are simply “regarded as” having a disability are not eligible for the aforementioned accommodations.  Once the eligible employee requests an accommodation, an interactive process with the employer regarding the appropriate accommodations will begin.  U.S.C. §12111(10) enumerates factors that would cause an undue hardship on the employer when accommodating an employee and are thus not mandated under the law. That list includes: (1) the nature and cost of the accommodation, (2) the overall financial resources of the facility or facilities, (3) the overall size of the business and (4) the type of operation.

It is also significant to note that simply because an employee’s doctor sends a note to the employer limiting the employee’s ability to work, requesting time off for the employee, requesting reduced hours, or asking that the employee be assigned to light duty, the employer is not necessarily governed by the doctor’s request. Legions of employees have been terminated because an employer either did not feel the need to honor a doctor’s request or seized upon the doctor’s request to terminate an employee because, according to the doctor, the employee cannot do the job as required. An employee would be wise to seek legal help, if possible, in negotiating a disability accommodation from an employer.

It is not uncommon for employers to begin plotting for an employee’s termination shortly after they are informed, formally or informally, of the employee’s illness.  Red herrings often used by employers to terminate or alternatively force an employee to resign include giving an employee a series of baseless poor performance evaluations, job restructuring rendering the affected employee’s position nonessential, suddenly changing absence policies, or engaging in poor treatment of an employee which encourages his resignation.

THE REHABILITATION ACT

The Rehabilitation Act Title V entitled “Nondiscrimination under Federal Grants and Programs” 29 U.S.C.A. § 720 et seq. protects those with disabilities from discrimination on the basis of those disabilities in programs organized by or receiving money from the federal government. The standards for determining employment discrimination under the Rehabilitation Act are the same as those used in Title I of the Americans with Disabilities Act described above.

 THE PREGNANCY DISCRIMINATION ACT

The two primary laws that protect women during pregnancy are the Pregnancy Discrimination Act and the Family Medical Leave Act (”FMLA”).  An amendment to Title VII of the Civil Rights Act of 1964, the Pregnancy Discrimination Act was established in 1978. The Act requires employers with 15 or more employees to treat employees with pregnancy-related conditions in the same manner required by law as those with other health conditions.  For example, if an employee with a serious medical condition is permitted to take leave or work a modified schedule under FMLA, the pregnant woman will be afforded the same options.  The Act also prevents an employer from firing or refusing to hire a woman based on her pregnancy or ability to take maternity leave.  In that same light, an employee cannot lose credit accrued for seniority or retirement benefits during her leave.  Lastly, an employer is required to keep the job open and maintain health care benefits as though the woman was on sick or disability leave.

Pregnant women also rely heavily on FMLA.  As previously discussed, expecting and new mothers can take up to 12 weeks off within a 12 month period to care for the birth of their child.  One key distinction between FMLA and the Pregnancy Discrimination Act is that FMLA only applies to employers of 50 employees or more.  Moreover, the employee must have worked either one full year or 1250 hours to request FMLA leave.

THE AGE DISCRIMINATION IN EMPLOYMENT ACT

The Age Discrimination in Employment Act of 1967 (“ADEA”) protects those employees over the age of 40 from workplace discrimination based on age.  29 U.S.C. § 621 et seq. It applies to employers with 20 or more employees, state, local and federal governments, and employment agencies and labor organization. Under this Act, it is unlawful for employers to discriminate against employees or job applicants with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, job assignments and training. As with the ADAAA, this Act also makes retaliation relating to the aforementioned unlawful.

Although an employee can be asked to waive their rights under the ADEA when signing a severance agreement, a clearly established protocol must be followed.  The agreement must be (1) in writing and understandable; (2) specifically refer to ADEA rights; (3) not waive rights or claims that may arise in the future; (4) offer valuable consideration; (5) advise the employee in writing to consult with an attorney prior to execution of the waiver; (6) allow for 21 days in which the employee can consider the agreement; and (7) allow for 7 days within which the employee can revoke the agreement after signing it.  Consider this protocol if a severance agreement concludes one’s client’s disability matter.

 THE FAMILY MEDICAL LEAVE ACT

The Family Medical Leave Act, (P.L. 103-3, 107 Stat. 6) (“FMLA”) was enacted on February 5, 2003 for the purpose of helping people who were stressed about trying to balance the competing demands of work and family life. The FMLA allows an employee to take up to 12 weeks of unpaid leave in a 12 month period for the birth or adoption of a child, to care for a family member, or to tend to his own serious health problems. The employee has three options from which to choose when deciding how to take time off.  He can take the entire 12 weeks at once, take leave as needed following proper procedures, or he can simply work a reduced schedule. Note that FMLA time off may be combined with paid time off and employers generally have an option of requiring that employees use up their sick/vacation/personal time prior to using FMLA time.  Employers have the burden of providing employees with information, notice and guidance about FMLA requirements.

It is important that any FMLA documents completed by the client and their doctors be reviewed by an attorney if possible.  Moreover, an attorney or representative should ensure that the FMLA documents conform or are at least considered when applying for other types of disability.  Often these documents will have different or contradicting onset dates, diagnoses, prognoses, or levels of severity of condition which will complicate the Social Security disability application procedure. The FMLA leave documents can be of assistance and provide documentary support in a Social Security disability claim.

The Department of Labor’s Wage and Hour Division published a Final Rule under the FMLA in January 2008 which became effective on January 16, 2009, and an updated set of regulations by the Department of Labor were published. The FMLA benefits provided to military families (referred to as military caregiver leave and covered service-member leave) greatly expand the usual 12 weeks of FMLA leave up to 26 workweeks of leave in a single 12 month period to care for a covered service member with a serious illness or injury incurred in the line of duty on active duty. Also, the time spent performing light-duty work doesn’t count against the 12 week FMLA leave. The regulations provide added guidance of what a “serious health condition” is.

Implementation of the ADA and the FMLA sometimes cause friction between an employer’s right to know about an employee’s condition and an employee’s right to keep his medical conditions private.  Relying on a medical treatment source for this information is not suggested, as doctors have been known to tell patients they are not required to reveal any information about their medical conditions, when that is not always the case, which can result in an employee’s termination for refusal to divulge information an employer has a right to know.

Generally, the information that must be revealed by an employee or his medical treatment sources under the FMLA must be enough to permit the employer to know how to best accommodate an employee, or to provide the information on Department of Labor Form WH-380E, which is a certificate of health care provider for an employee’s serious health condition. This information, requested from a doctor, includes, among other things, the beginning date of the condition, dates treated for the condition, probable duration of condition, medication prescribed, treatments, referrals made to other health care providers, and whether an employee can perform certain job functions.

Employees on FMLA must follow an employer’s usual and customary procedures for reporting an absence, barring an usual circumstance.  Further, an employer’s direct supervisor cannot contact health care providers and cannot ask for additional information beyond that required on the certification form, as the Health Insurance Portability and Accountability Act (“HIPPA”) is invoked to limit this information. There are also provisions for certification of ongoing conditions and fitness for duty certifications.

 FECA AND FELA CLAIMS AS OPTIONS FOR FEDERAL EMPLOYEES

 The Federal Employees Compensation Act (“FECA”), 5 U.S.C.A. § 8101 et seq., provides federal employees with compensation benefits for work-related injuries or illnesses.  Administered by the Department of Labor’s Office of Workers’ Compensation Programs, all claims generally must be brought within three years of the date of injury. The federal employee will continue to receive compensation benefits as long as they remain totally or partially disabled.  The federal employee will receive two-thirds or three-fourths of their salary at the time of the injury depending on whether the employee has dependents.

Another piece of federal legislation that attorneys who handle disability matters should be familiar with is Federal Employers’ Liability Act (“FELA”). 45 U.S.C.A. § 51 et seq. This Act was initially meant to protect the rights of railway workers who were injured while at work in this country. Since its enactment, FELA has been greatly expanded.  There is a three year statute of limitations from the date of the injury.  Generally the statute begins running when the employee knew or should have known of the existence of the injury and that the FELA statute of limitations is triggered in an occupational injury case when the injured worker knew or should have known: 1) of the existence of the injury; and 2) that workplace exposure was a cause

 SHORT AND LONG-TERM TERM DISABILITY POLICIES AND ERISA

Clients frequently are not aware that they are entitled to make a claim which entitles them to receive some form of some short and/or long-term disability payments as a general benefit of their employment, membership in a union or because they have opted to receive additional benefits paid for through payroll deductions. Employees may also have disability coverage they have purchased privately.

However, simply because this type of benefit exists does not mean that it is easily procured. Disability insurance carriers may be reluctant to approve clients for benefits, particularly long-term disability benefits, and if they are approved, carriers often attempt to terminate the employee prematurely. Employees are sometimes lulled into thinking that because they have received short-term disability benefits easily that receiving long-term disability benefits will also be an easy process. Moreover, if an employee is receiving long-term disability benefits, this normally indicates that the injury is not work-related, because a worker’s compensation claim would ensue instead.

Insurance disability carriers tend to have little respect for the fact that a claimant has been awarded Social Security disability benefits prior to or even after an ALJ’s decision, and this type of award does not have significant impact on a carrier’s decision to award long-term disability benefits.  However, a detailed decision by an ALJ judge, the Appeal’s Council or a court, will usually be helpful in a long-term disability claim.  In the event that a client suffers from physical and mental impairments, because many policies limit the number of years of benefits for mental impairments, carriers may seize on a decision and allege that the mental impairments take priority over the physical impairments, so one should use care in emphasizing the nature of the disability claimed.

Most insurance carriers require that a successful applicant for long-term disability benefits apply for Social Security disability benefits, and if that claim is successful, those benefits will be offset against any amount paid to the applicant under long-term disability coverage, after the deduction of any attorney’s fees. If that claim is not successful, it should not impact on private disability insurance benefits.

There are several levels of administrative appeal in the long-term disability denial process and insurance carriers frequently extend the administrative process as long as possible, hoping to wear out the applicant. It is important that each stage of the administrative process be followed, and that any and all medical evidence is submitted to the insurance carrier during the administrative process.  This is because there is case law which states that evidence submitted after the administrative process cannot be introduced if a denial is later litigated under The Employee Retirement Income Security Act of 1974 (“ERISA”), found in the U.S. Code beginning at 29 U.S.C. §1001.

ERISA is a federal law which mandates minimum standards for most voluntarily established pension and health plans in private industry. The result is additional protection for individuals with covered plans.  Long-term disability appeals are included in the health care plans covered by ERISA. Being familiar with ERISA is particularly important when dealing with denials of long-term disability benefits in that this federal law preempts the vast majority of state and local laws pertaining to similar subject matter.

ERISA dictates an administrative process which must be fulfilled in its entirety before the employee obtains the right to sue.  The administrative processes differ from policy to policy but the common thread running through every policy is that stringent timelines must be followed in order to safeguard the claim. ERISA also provides for an internal appeal process.  Once this process is complete, a lawsuit can be brought.

UNEMPLOYMENT INSURANCE BENEFITS

Although there may be risks if a claimant applies for both unemployment insurance (“UI”) benefits and Social Security disability benefits contemporaneously, for those who don’t have a financial choice, one is not precluded from filing for both benefits contemporaneously. In order to receive UI benefits, one must assert that he is ready, willing and able to work but cannot find employment.  Conversely, to file for Social Security disability benefits one must show that his medical condition prevents him from working in his previous position or any other field and he is not currently seeking employment.

Although there appears to be an inherent conflict in these positions, in Cleveland v. Policy Management Systems Corp., 526 U.S. 795 (1999) the U.S. Supreme Court held that: (1) claims for Social Security Disability Insurance (SSDI) benefits and for ADA damages did not inherently conflict, and (2) an employee was entitled to an opportunity to explain any discrepancy between her statement in pursuing SSDI benefits that she was totally disabled and her ADA claim that she could perform essential functions of her job. A similar analysis can be applied to the receipt of UI benefits where one alleges an ability to do some type of work.

Administrative law judges may not look favorably upon Social Security disability claims where the employee is receiving UI benefits, but they should consider a claimant’s application for and/or receipt of UI benefits as only one of the statutory factors adversely impacting the claimant’s credibility in assessing the ability to work, and it should be considered as part of the five step sequential evaluation process and the totality of circumstances.

Holding oneself out as being able to work is not the same as being able to work and perform substantial gainful activity. Also, a mere desire to work is not proof of the ability to work, because many employers will not hire someone with a myriad of medical problems, despite that person being willing to make a work attempt.

A November 15, 2006 Memorandum from Chief Judge Frank A. Cristaudo to Regional Chief Judges and Regional Office Management Teams, states that “[t]his is a reminder that the receipt of unemployment insurance benefits does not preclude the receipt of Social Security disability benefits.  The receipt of unemployment benefits is only one of many factors that must be considered in determining whether the claimant is disabled. See 20 CFR 404.1512(b) and 416.912(b).” The Memorandum states that Social Security Ruling 00-1c incorporates Cleveland.  A long line of Appeal’s Council and ALJ Decisions prior to Cleveland support this analysis, which requires consideration of all of the evidence and the totality of circumstances, making the ability to receive both types of benefits possible.

Some advocates delay the date of onset of the condition in a Social Security disability claim paving the way for a client to receive UI benefits for a period of time. However, the Social Security disability process can be quite lengthy, and may not always be successful for claimants, so it may be desirable for them to have a stream of income pending the Social Security disability process.  UI benefits are not offset by Social Security disability and therefore can serve as additional funds for claimants during the Social Security disability application process.

THE PUBLIC POLICY EXCEPTION AS APPLIED TO EMPLOYEES AT WILL AND EMPLOYEES WITH WORKER’S COMPENSATION CLAIMS

Since 1891, Pennsylvania common law held that in the absence of a specific statutory or contractual restriction, an at-will employment relationship could be terminated by either the employer or the employee at any time, for a good reason, a bad reason or no reason at all. Henry v. Pittsburgh & Lake Erie Railroad Co., 139 Pa. 289, 21 A. 157 (1891).  It was not until almost 100 years later that this holding was reevaluated in Geary v. United States Steel Corporation, 456 Pa. 171, 319 A.2d 174 (1974).  In Geary, an employee was terminated for warning his fellow coworkers of the valid dangers posed by the new product the company was manufacturing.  Interpreting Geary, Yaindl v. Ingersoll-Rand Co. held “when the discharge of an employee at will threaten public policy, the employee may have a cause of action against the employer for wrongful discharge.” 281 Pa.Super. 560, 422 A.2d 611, 617 (1980).

Some states may have statutory or common law making it a violation to terminate an employee who has been injured during the course of employment. In Pennsylvania, for example, the courts have established a narrow exception to the standard employment at will doctrine which permits employers to terminate their employees for minimal reasons, stating that it is a violation of public policy to terminate an employee who initiates a claim of worker’s compensation. Rothrock v. Rothrock Motor Sales, Inc., 810 A.2d 114 (Pa.Super. 2002). However, this is often a difficult standard to meet and employers often ignore this exception, taking the risk that an injured employee will not have the substantial resources necessary to sue the employer for violation of the policy.

 In September 2009, a record setting consent degree was entered into between Sears, Roebuck and Co. and former employees who were allegedly discriminated against when Sears maintained an inflexible workers’ compensation leave exhaustion policy and terminated employees rather than providing them with reasonable accommodations for their disabilities in violation of the ADA.  The case was docketed as EEOC v. Sears Roebuck & Co., N.D. Ill. No. 04 C 7282. The Chicago based U.S. Equal Employment Opportunity Commission declared that the class action lawsuit it had initiated would be settled for $6.2 million with additional remedial relief.  Many attorneys in the workers compensation field believe that this settlement will lead to important changes in how companies structure their leave policies.

 However, the Pennsylvania public policy exception to the employment at-will doctrine will not apply where a statutory remedy is available.  For example, an employee who was terminated based on race, color, religion, national origin, or sex is entitled to file under Title VII and similar state statutes, although he may be permitted to raise the exception as an ancillary state claim.

SEVERANCE AGREEMENTS IN LIEU OF COURT PROCEEDINGS

 Another helpful tactic which should be considered if Social Security disability standards cannot be met but an employee must leave his position because he can’t perform his job duties due to some disability and/or his employer can’t reasonably accommodate his disability, is negotiating a severance agreement to include additional funds for a client and/or lengthen his entitlement to health insurance benefits.  The agreement will be enforceable so long as the scope is reasonable, no laws are violated, consideration is present and the agreement is knowingly and voluntarily entered into.

Employers are oftentimes willing to enter into a severance agreement to avoid the lengthy discrimination agency or litigation process.  It may be far more cost effective for an employer to give these concessions early in the negotiation process.  It is important to exhaust all other remedies discussed earlier if a severance agreement is to be signed because standard severance agreements terminate the employee’s right to sue the employer for any actions that took place during a certain time frame, with the possible exception of worker’s compensation claims, depending on state law.

CONCLUSION

 It is not unusual to have a client suffering from a job-related injury or illness who would have been able to continue to work given a reasonable accommodation under the ADAAA or following a FMLA leave. Instead, many employers terminate, lay off, or force these employees to resign in violation of the law and the public policy exception to the employee-at-will doctrine and the aforementioned statutes, depending on state law.  That client, in addition to the receipt of Social Security disability benefits, could potentially receive worker’s compensation benefits, short and/or long term disability benefits, retirement disability and/or a settlement from an employer due to alleged violations of one of the civil rights acts or policies.  Note that there may be financial offsets from receipt of more than one of these types of benefits. Also, a negotiated severance agreement or settlement may include severance pay, extension of insurance benefits and attorney’s fees and costs for a client.

In conclusion, there is no doubt, as outlined by the various remedies above, that the disability field of law is often confusing as it requires interaction with various laws and policies which often have not only varying, but conflicting, burdens of proof.  However, a practitioner who is at a minimum familiar with other possible remedies can be of great help to his client. Also, this help may result in additional sources of income to the client and to the practitioner who undertakes these additional claims or refers them to other attorneys and is able to collect referral fees depending on state guidelines.

 

How Religion Supports Science, but Atheism Doesn’t

I have spoken with several scientifically minded people recently who’ve reported a conflict between the religious and scientific worldview. Most of these people are not actual scientists (a few of them are), but nevertheless, they seem to appreciate what science has done for the world, and generally enjoy the musings of those engaged in it. Fair enough: science has done a great deal to improve the priorly squalid conditions of our human experience, and conjectures among scientists are of often enormous intrigue, especially those which can make for a good sci-fi. But is there really a conflict between the scientific and religious worldview? Is it irrational to be a person of faith and lover of science?

Here is what I would maintain. There are, admittedly, among certain, specific religious affiliations, real and obvious conflicts between what some particular religions say, and what some particular scientific endeavors teach. No person of faith should deny these apparent face-offs. (Here, something like young earth creationism comes to mind, or the denial of the efficaciousness of penicillin.) But at the same time, no person of faith should concede that just because there are some conflicts with some religious viewpoints and the mainstream scientific consensus, that the religious worldview, broadly construed, is in anyway incompatible with the enterprise or results of science itself.

We can defuse this so-called conflict hypothesis, first by taking the most general religious stance possible: that God exists. In other words, there is not a being, but a foundation to being itself, or an ultimate, self-sufficient answer to the question of “How come anything?” Across religious traditions—from Christianity to Hinduism—this foundation is believed to be a mind, or at least something mind-like: unified, perfect in its understanding, and capable of relating all real and really possible ideas. This ground of being—this Godhead—therefore, is unlike anything else and is the reason for everything else. Because of this, the best and perhaps only way we can approach God intellectually (apart from specific revelation) is by a slow, philosophical process of stripping away all the things God is almost certainly not, like a being in time or space, or composed of parts, matter, etc. Classical theism, then, says God is the power behind all powers, the fully knowing, fully inclusive reality which, because it exists through itself, continually donates being to everything existing apart from it.

Back to the original point: Is such a belief inconsistent with science? If so, the conflict is not easily apparent. We’ll need to investigate.

Science is the study of physical things, or to be precise, how one physical event causes or leads to another physical event. Science, then, is etiological rather than ontological. It assumes a physical reality and goes from there; science cannot answer why there is a physical reality to start. This is the first distinction a person should make, and once a person has this distinguishing feature clear in their mind, it becomes quite understandable why science has very little to say about God. Science is definitionally and practically restricted to studying God’s creation but cannot in principle have anything to say about the Creator—who is not a limited, physical thing—himself.

Here is a simple way of thinking about it: Science works within the book of physical, interactive life. It can tell us that Jack laughed because Susy told a joke. But clearly there is another, higher up, and further out, explanation to be found. For is it not equally true that Jack laughed because the author made Susy to be funny, and Jack susceptible to jokes? And so, we can see there is a proximate answer, which science deals with, but also an ultimate answer, which is left to philosophy and theology and all the like. The proximate answer is both true and insightful, yet all proximate answers within the book depend ultimately on there being an author. And so, who is the author, we would like to know? And why did he or she bother writing the story to begin with? These are legitimate questions—perhaps the most legitimate we can ask—and they are all legitimately unanswerable through the empirical enterprise.

The question of why any story of life has been put to paper to begin with, which is the all-too-familiar but far from insignificant realization that anything exists instead of nothing, is a question that science cannot attend to, but philosophy and theology, on the other hand, can. If God did not exist—that is, if there were not a necessary, self-sufficient foundation to reality (that which in principle does not, and could not, be caused)—it is hard to see how anything could exist. Everything about physical reality is conditioned; there are a confluence of causes to explain the things which constitute the world we live in, from galaxy formation to fermions and bosons and so on. But reality in total (whatever that is) cannot be the sort of thing in need of an outside explanation, since nothing could stand outside of reality to cause it. So there must be a part, a layer, or a foundation, of reality beyond the realm of created, physical things—beyond time and space and matter and energy—to answer the most interesting and important question of all: “How come anything?”

But we can, and should, go further. God supports science in other ways yet unmentioned, and often unrecognized.

If, for example, God exists, then we might expect to have been formed with generally reliable faculties. We can trust that however God brought us about (evolution or otherwise), he did so with the intent of having us discover real truths about the world—mathematical, logical, moral, etc—and that our cognitive faculties are not just a jumble of useful but false beliefs suited for the proliferation of genes. If, however, God did not exist, then we have no strong reason to expect our beliefs, or our belief forming mechanisms, to be aimed accurately at discerning reality. Any theory of unguided evolution, after all, does not care about truth, only that some such species remains a going concern, and these two things—truth on one hand, the propagation of DNA on the other—are not necessarily, or even probably, related. Delusions (like, according to Richard Dawkins, belief in God would be, or objective morality) could lead to survival just as well as truth, and in some respects, maybe even more so. But if this is the case, then we have reason to be skeptical of all beliefs formed through our evolutionarily mechanisms, and this includes our beliefs in evolution and naturalism (naturalism being one of the strongest forms of atheism). The position then is self-defeating. To accept both (evolutionary theory and naturalism) is to have to reject both. Theism, on the other hand, offers ample epistemological support to evolutionary theory, since we can trust that God providentially guided the process leading to rational, reasoning animals like us. (For more on this line of argument—that is, how evolutionary theory undercuts belief in naturalism, but can be supported by theism—see here and listenhere.)

We also might expect that if God exists, the world would be orderly and intelligible—and, indeed, the world is orderly and intelligible, magnificently and exquisitely so. Also—amazingly enough—the world is stable: yesterday was pretty much like today in terms of physical laws and causal processes, and we expect tomorrow will probably be the same. Why should any of this be the case, if God did not exist? That anything exists at all, that there exist people to understand and ask questions about existing things, and that our existing physical laws are generally unchanging and susceptible to understanding, is, to be frank, a miracle beyond the reach of any purely naturalistic explanation. Given the existence of God, however, all this is just the sort of thing we’d expect. Even if we could not predict the way God would do things (for that, we’d have to be God), the existence of God makes sense of the way things have actually been done. God makes sense of science and everything science assumes: logic, mathematics, and the moral realm. Theism provides a solid foundation to all of these in the existence of a nonphysical, foundational mind. Belief in God makes science both rational and reliable. Rejection of God makes science a bizarre mystery, if not a ludicrous leap of faith. In this sense, we are all believers in something. The only question is where do we draw the line?

By Pat Flynn and published on Word on Fire on August 20, 2019 and can be found here.

 

No ‘gay gene’: Massive study homes in on genetic basis of human sexuality

Nearly half a million genomes reveal five DNA markers associated with sexual behaviour — but none with the power to predict the sexuality of an individual.

The largest study1 to date on the genetic basis of sexuality has revealed five spots on the human genome that are linked to same-sex sexual behaviour — but none of the markers are reliable enough to predict someone’s sexuality.

The findings, which are published on 29 August in Science and based on the genomes of nearly 500,000 people, shore up the results of earlier, smaller studies and confirm the suspicions of many scientists: while sexual preferences have a genetic component, no single gene has a large effect on sexual behaviours.

“There is no ‘gay gene’,” says lead study author Andrea Ganna, a geneticist at the Broad Institute of MIT and Harvard in Cambridge, Massachusetts.

Ganna and his colleagues also used the analysis to estimate that up to 25% of sexual behaviour can be explained by genetics, with the rest influenced by environmental and cultural factors — a figure similar to the findings of smaller studies.

“This is a solid study,” says Melinda Mills, a sociologist at the University of Oxford, UK, who studies the genetic basis of reproductive behaviours.

But she cautions that the results may not be representative of the overall population — a limitation that the study authors acknowledge. The lion’s share of the genomes comes from the UK Biobank research programme and the consumer-genetics company 23andMe, based in Mountain View, California. The people who contribute their genetic and health information to those databases are predominantly of European ancestry and are on the older side. UK Biobank participants were between 40 and 70 years old when their data were collected, and the median age for people in 23andMe’s database is 51.

The study authors also point out that they followed convention for genetic analyses by dropping from their study people whose biological sex and self-identified gender did not match. As a result, the work doesn’t include sexual and gender minorities (the LGBTQ community) such as transgender people and intersex people.

A need for more data

Scientists have long thought that someone’s genes partly influenced their sexual orientation. Research from the 1990s2 showed that identical twins are more likely to share a sexual orientation than are fraternal twins or adopted siblings. Some studies suggested that a specific part of the X chromosome called the Xq28 region was associated with the sexual orientation of people who were biologically male — although subsequent research cast doubt on those results.

But these studies all had very small sample sizes and most focused on men, says Mills. This hampered scientists’ ability to detect many variants associated with sexual orientation.

In the recent study, Ganna and his colleagues used a method known as a genome-wide association study (GWAS) to look at the genomes of hundreds of thousands of people for single-letter DNA changes called SNPs. If lots of people with a trait in common also share certain SNPs, chances are that the SNPs are related in some way to that characteristic.

The researchers split their study participants into two groups — those who reported having had sex with someone of the same sex, and those who didn’t. Then the researchers performed two separate analyses. In one, they evaluated more than one million SNPs and looked at whether people who had more SNPs in common with each other also reported similar sexual behaviours. The scientists found that genetics could explain 8–25% of the variation in sexual behaviour.

For their second analysis, Ganna and his colleagues wanted to see which particular SNPs were associated with same-sex sexual behaviours, and found five that were more common among those individuals. However, those five SNPs collectively explained less than 1% of the variation in sexual behaviour.

This suggests that there are a lot of genes that influence sexual behaviour, many of which researchers haven’t found yet, says Ganna. An even larger sample size could help to identify those missing variants, he says.

But Ganna cautions that these SNPs can’t be used to reliably predict sexual preferences in any individual, because no single gene has a large effect on sexual behaviours.

It’s complicated

Although the researchers have identified some of the SNPs involved in same-sex sexual behaviour, they aren’t sure what the genetic variants do. One is near a gene related to smell, which Ganna says has a role in sexual attraction. Another SNP is associated with male-pattern baldness — a trait influenced by levels of sex hormones, which suggests that these hormones are also linked to same-sex sexual behaviour.

The results demonstrate the complexity of human sexuality, says Ganna. They also presented a challenge to the study researchers, who knew that explaining nuanced findings on such a sensitive topic to the general public would be tricky.

To ensure that their results are not misinterpreted, the study researchers worked with LGBTQ advocacy groups and science-communication specialists on the best way to convey their findings in the research paper and to the public. Their efforts included the design of a website that lays out the results — and their limitations — to the public, using sensitive, jargon-free language.

Ewan Birney, a geneticist and director of EMBL European Bioinformatics Institute near Cambridge, UK, applauds that effort. “It’s a communications minefield,” he says.

Although some researchers and LGBTQ advocates might question the wisdom of conducting this kind of research, Birney says that it’s important. There has been a lot of sociological research on same-sex sexual behaviours, he says, but this is an incredibly complicated topic. It’s time to bring a strong, biologically based perspective to the discussion, Birney says.

References

  1. 1.

    Ganna, A. et al. Science 365, eaat7693 (2019).

  2. 2.

    Pillard, R. C. & Bailey, J. M. Hum. Biol. 70, 347–365 (1998).

By Jonathan Lambert and published in Nature on August 25, 2019 and can be found here.

‘Luxury beliefs’ are the latest status symbol for rich Americans

A former classmate from Yale recently told me “monogamy is kind of outdated” and not good for society. So I asked her what her background is and if she planned to marry.

She said she comes from an affluent family and works at a well-known technology company. Yes, she personally intends to have a monogamous marriage — but quickly added that marriage shouldn’t have to be for everyone.

She was raised by a traditional family. She planned on having a traditional family. But she maintained that traditional families are old-fashioned and society should “evolve” beyond them.

What could explain this?

In the past, upper-class Americans used to display their social status with luxury goods. Today, they do it with luxury beliefs.

People care a lot about social status. In fact, research indicates that respect and admiration from our peers are even more important than money for our sense of well-being.

We feel pressure to display our status in new ways. This is why fashionable clothing always changes. But as trendy clothes and other products become more accessible and affordable, there is increasingly less status attached to luxury goods.

The upper classes have found a clever solution to this problem: luxury beliefs. These are ideas and opinions that confer status on the rich at very little cost, while taking a toll on the lower class.

One example of luxury belief is that all family structures are equal. This is not true. Evidence is clear that families with two married parents are the most beneficial for young children. And yet, affluent, educated people raised by two married parents are more likely than others to believe monogamy is outdated, marriage is a sham or that all families are the same.

‘Upper-class people don a luxury belief to separate themselves from the lower class’

Relaxed attitudes about marriage trickle down to the working class and the poor. In the 1960s, marriage rates between upper-class and lower-class Americans were nearly identical. But during this time, affluent Americans loosened social norms, expressing skepticism about marriage and monogamy.

This luxury belief contributed to the erosion of the family. Today, the marriage rates of affluent Americans are nearly the same as they were in the 1960s. But working-class people are far less likely to get married. Furthermore, out-of-wedlock birthrates are more than 10 times higher than they were in 1960, mostly among the poor and working class. Affluent people seldom have kids out of wedlock but are more likely than others to express the luxury belief that doing so is of no consequence.

Another luxury belief is that religion is irrational or harmful. Members of the upper class are most likely to be atheists or non-religious. But they have the resources and access to thrive without the unifying social edifice of religion.

Places of worship are often essential for the social fabric of poor communities. Denigrating the importance of religion harms the poor. While affluent people often find meaning in their work, most Americans do not have the luxury of a “profession.” They have jobs. They clock in, they clock out. Without a family or community to care for, such a job can feel meaningless.

Then there’s the luxury belief that individual decisions don’t matter much compared to random social forces, including luck. This belief is more common among many of my peers at Yale and Cambridge than the kids I grew up with in foster care or the women and men I served with in the military. The key message is that the outcomes of your life are beyond your control. This idea works to the benefit of the upper class and harms ordinary people.

It is common to see students at prestigious universities work ceaselessly and then downplay the importance of tenacity. They perform an “aw, shucks” routine to suggest they just got lucky rather than accept credit for their efforts. This message is damaging. If disadvantaged people believe random chance is the key factor for success, they will be less likely to strive.

‘The key message is that the outcomes of your life are beyond your control’

White privilege is the luxury belief that took me the longest to understand, because I grew up around poor whites. Often members of the upper-class claim that racial disparities stem from inherent advantages held by whites. Yet Asian Americans are more educated, have higher earnings and live longer than whites. Affluent whites are the most enthusiastic about the idea of white privilege, yet they are the least likely to incur any costs for promoting that belief. Rather, they raise their social standing by talking about their privilege.

In other words, upper-class whites gain status by talking about their high status. When laws are enacted to combat white privilege, it won’t be the privileged whites who are harmed. Poor whites will bear the brunt.

It’s possible that affluent whites don’t always agree with their own luxury beliefs, or at least have doubts. Maybe they don’t like the ideological fur coat they’re wearing. But if their peers punish them for not sporting it all over town, they will never leave the house without it again.

Because, like with diamond rings or designer clothes of old, upper-class people don a luxury belief to separate themselves from the lower class. These beliefs, in turn, produce real, tangible consequences for disadvantaged people, further widening the divide. Just as fashionable clothing will soon be outdated, so will today’s fashionable beliefs. In the future, expect the upper class to defame even more values — including ones they hold dear — in their quest to gain top-dog status.

By Rob Henderson and published in The New York Post on August 17, 2019 and can be found here.

Divorce After Death?

Historically, when a husband and wife were in the process of being divorced and one died their status remained as if married, and division of the probate marital property would occur under the probate rules of Title 20.  Effective January 28, 2005, the foregoing changed, and equitable distribution under certain circumstances may now occur even after one of the spouses has died.

            Title 23 now provides that “[I]n the event one party dies during the course of divorce proceedings, no decree of divorce has been entered and grounds have been established as provided in subsection (g), the parties’ economic rights and obligations arising under the marriage shall be determined under this part rather than under 20 Pa.C.S. (relating to decedents, estates and fiduciaries).”  23 Pa.C.S.A. § 3323(d.1).   The Official Note indicates that the primary reasons for the changes is so that parties who are divorcing would need not choose between equitable distribution or electing against the Will of the other spouse.  Indeed, the Official Notes state that “[T]he parties’ economic rights and obligations are determined under equitable distribution principles, not under the elective share provisions of Chapter 22 of Title 20 (Decedents, Estates and Fiduciaries Code).”  Importantly, the change to Title 23 leaves several questions unanswered, that have yet to be clarified by the courts.

            It is universally accepted that a divorce decree cannot be entered, regardless of the approval of the divorce grounds, when one of the spouses in the divorce action dies, because a divorce action abates immediately upon the death of one of the parties.  The changes to 23 Pa.C.S.A. § 3323(d.1) does not alter the foregoing.  Taper V. Taper, 939 A.2d 969 (Pa. Super., 2007), Yelenic v. Clark, 922 A.2d 935 (Pa. Super., 2007), In Re Estate of James A. Bullotta, Jr., 838 A.2d 594 (Pa., 2003).  Therefore, regardless of the approval of divorce grounds, the parties remain married.

            If the parties remain married, regardless of grounds of divorce being established, then any item of property that passes by law to the surviving spouse, because they are the surviving spouse, must supercede equitable distribution.  Of particular note are retirement plans, such as IRA or 401(k) plans that are generally governed by ERISA, which of course is a federal statute that does not fall within Title 20.  Frequently, pension plans stipulate that if a spouse is named as a beneficiary, their name cannot be removed without their consent.  The same might be the case for life insurance provided as an employment benefit through the decedent’s employer.  Likewise, a tenancy by the entireties is created and governed by common law and not Title 20.  Consequently, assets passing outside Title 20 may not be subject to equitable distribution after the death of a spouse.

            23 Pa.C.S.A. §3323(d.1) did not take effect until January 28, 2005.  Left unresolved is whether the change to Title 23 effects parties who separate prior to the effective state of the statute, and whether the change to Title 23 should be applied to parties when one of the parties filed for divorce prior to the effective date of the statute.  Under 1 Pa.C.S.A. §1926, no statute is to be considered retroactive unless it is clearly and manifestly so intended by the General Assembly.  Indeed, “in the absence of clear language to the contrary, statutes must be construed to operate prospectively only.”  Budnick v. Budnick, 419 Pa.Super. 172, 615 A.2d 80 (Pa.Super.,1992.)  citing Flick v. Flick, 408 Pa.Super. 110, 115-117, 596 A.2d 216, 219-220 (1991).  There is nothing in §3323(d.1) that even hints at retroactive effect; therefore the statute may not apply to those individuals who separated prior to January 28, 2005.

            Attorneys who practice in the field of family law should be aware that if the parties separated after January 28, 2005, and one of the spouses is ill, consideration should be made to obtaining a finding of grounds for divorce, depending on the assets involved and how they are held.  Those attorneys who practice in the field of estate law need to make certain they are aware of this change in the law, the need to update wills, and the need to check the records of the Register of Wills to determine if a Personal Representative is appointed.  Consideration should be made to filing an informal caveat to block probate of any will, and a formal caveat then filed and a petition filed to appoint an independent administrator pendente lite to marshal the assets of the deceased spouse’s estate, to ensure that the other spouse is not left with nothing.

Here is yet another an article, by Adam S. Bernick, Esquire, who is of counsel to my firm, providing some sound advice and insight into the estate planning process.  This article was originally published in Upon Further Review on December 8, 2009, and can be seen here.

U.S. Supreme Court Weighs in on Beneficiary Issues in Savings and Investment Plans

What happens when an individual never removed his divorced spouse as a beneficiary of his employer’s Savings and Investment Plan (SIP) and then dies? The recent U. S. Supreme Court case of Kennedy v. DuPont, 129 S.Ct. 865, 172 L.Ed.2d 662 (1/26/2009) answered this question in a unanimous decision authored by Justice Souter. The Court determined the plan document controlled what happened to the benefits. If the plan document stipulated release of the money to the divorced spouse, regardless of a non-QDRO divorce decree directing otherwise, because the decedent neglected to change the designated beneficiary from the now divorced spouse to another individual, then the plan administrators acted correctly when they released the money to the divorced spouse and not to the estate.

The decedent, William, worked for DuPont and participated in a SIP. Under the SIP, William retained the power to designate any beneficiary or beneficiaries to receive all or part of the funds upon his death, and to replace or revoke such designation. Importantly, under the SIP when William died, if he did not have a surviving spouse and a beneficiary designation was not in effect, distribution would be made to the executor or administrator of his estate. Implicit in the foregoing, of course, is that if William never amended his beneficiary designation to remove his now divorced spouse, it would remain in effect.

In 1971, William married Liv, and, in 1974, he signed a form designating her to take benefits under the SIP. William did not name a contingent beneficiary to take if she disclaimed her interest. William and Liv divorced in 1994. The divorce decree (apparently non-QDRO) provided for divorce of the parties, and specifically divested Liv of her rights in any of William’s retirement plans. However, William did not execute any documents removing Liv as the beneficiary of the SIP, although he did execute a new beneficiary-designation form naming his daughter, Kari, as the beneficiary under DuPont’s Pension and Retirement Plan. On William’s death in 2001, petitioner Kari was named executrix and she asked DuPont to distribute the SIP funds to William’s Estate. DuPont relied on William’s designation form and paid the balance of some $400,000 to Liv.

Litigation occurred and the matter eventually made its way to the U.S. Supreme Court. The Court granted certiorari to resolve a split among the appellate courts and state supreme courts with regards to a divorced spouse’s ability to waive pension plan benefits through a divorce decree not amounting to a QDRO and whether a beneficiary’s federal common law “waiver” of plan benefits would be effective where the waiver was inconsistent with plan documents.

The Court held that regardless of any waiver under federal common law, the plan administrator was correct in not granting Liv’s “waiver”. Instead the Court held that the plan administrator “did its statutory ERISA duty” by paying the benefits to Liv in conformity with the plan documents. The Court reasoned that ERISA compliance is governed by the plain language of the written documents, and that plan administrators should not have to review a multiple amount of documents prior to release of the benefits.

Family law attorneys need to make sure that if there is no QDRO they take action to make their clients aware if the consequences of not changing the beneficiary designation. If there is a QDRO, the plan administrators must be made aware of the QDRO promptly so that the plan records/beneficiary designation is modified to reflect the terms of the QDRO. Estate planning attorneys need to review their clients’ beneficiary designations to make sure that they still comply with their estate plan goals.

By Adam S. Bernick, Esquire, Law Office of Adam S. Bernick and of counsel to the Law Office of Faye Riva Cohen, P.C. and published in Upon Further Review on November 10, 2009.

Johns Hopkins Research: No Evidence People Are Born Gay or Transgender

Scholars at Johns Hopkins University released a new report on Monday which argues that there is not sufficient evidence to suggest that lesbian, gay, or transgender people are born with this sexual orientation or gender identity.

The three-part, 143-page report, which appeared in the Fall 2016 edition of The New Atlantis, also investigated other commonly accepted ideas about homosexuality and transgenderism. Mayer and his co-author Paul McHugh, a professor of psychiatry and behavioral sciences at Johns Hopkins, challenged the claim that discrimination and social stigma are the only reasons why homosexual and transgender people suffer higher rates of mental health problems and are more likely to commit suicide.

The study breaks down in three parts: First, Mayer and McHugh examined whether homosexuality is an inherited trait, and concluded that people are not simply “born that way.” Second, they looked at the causes of the poor mental health associated with gay and transgender people, concluding that social stress does not explain all of it. Finally, they studied transgenderism, concluding that it is not innate and that transgender “treatments” are associated with negative outcomes.

“Studies of the brains of homosexuals and heterosexuals have found some differences, but have not demonstrated that these differences are inborn rather than the result of environmental factors that influenced both psychological and neurobiological traits,” the report explained. “One environmental factor that appears to be correlated with non-heterosexuality is child sexual abuse victimization, which may also contribute to the higher rates.”

The report cited the National Longitudinal Study of Adolescent to Adult Health, which tracked the sexual orientation of children aged 7 to 12 in 1994-1995 and again in 2007-2008. Eighty percent of male respondents who had reported same-sex attraction and both-sex attraction in childhood later identified as exclusively heterosexual, while more than half of the females who reported both-sex attraction as children reported exclusive attraction to men as adults.

“Summarizing the studies of twins, we can say that there is no reliable scientific evidence that sexual orientation is determined by a person’s genes,” the researchers wrote. “But there is evidence that genes play a role in influencing sexual orientation.”

“So the question ‘Are gay people born that way?’ requires clarification. There is virtually no evidence that anyone, gay or straight, is ‘born that way’ if it means that their sexual orientation was genetically determined,” the report explained (emphasis added). “But there is some evidence from the twin studies that certain genetic profiles probably increase the likelihood the person later identifies as gay or engages in same-sex sexual behavior.”

The scholars also investigated potential links between transgender identity and neurological differences. While some studies found brain-activation patterns associated with transgenderism, the report found that “these studies do not offer sufficient evidence for drawing sound conclusions about possible associations between brain activation and sexual identity or arousal. The results are conflicting and confusing.”

The researchers concluded that there is not enough evidence to come to firm conclusions about the causes of gender identity. “There are no serial, longitudinal, or prospective studies looking at the brains of cross-gender identifying children who develop to later identify as transgender adults,” and the “neurological differences in transgender adults might be the consequence of biological factors such as genes or prenatal hormone exposure, or of psychological and environmental factors such as childhood abuse, or they could result from some combination of the two.”

The report also found that gay and transgender people are at elevated risk for a variety of mental health risks, including anxiety disorders, depression, substance abuse, and suicide. The transgender rate of lifetime suicide attempts is estimated at 41 percent, compared to under 5 percent for the overall population.

Mayer and McHugh also disputed the argument that these mental health disorders are caused by social stressors like discrimination and stigma. While they found some evidence for this widely proclaimed “social stress model,” it ended up being “limited, inconsistent and incomplete,” and it is not yet “a useful tool for understanding public health concerns.”

When asked about likely criticism from liberals and conservatives, Mayer said he suspects critics will claim the report was only issued to serve the biases of his co-author McHugh. McHugh has spoken out against transgenderism in the past, but the study was emphatically not intended to merely back up his ideas.

“Every line in this I either wrote or approved of,” Mayer told The Christian Post. “There is no bias either way. The bias is just towards science.”

“I think we get into these very high volume battles, particularly in this current environment,” the author explained. “When science supports our position, sometimes it is better to tone down a bit. In other words, conservatives have been highly critical of the report too already because it didn’t support this or didn’t support that. The idea is that let the science speak and then see how they respond to it.”

By Tyler O’Neil and published on August 23, 2016 in PJ Media and can be found here.

The Medical Authorization Process Under HIPPA: Protection or Burden?

We will not accept the authorization for the release of medical records that you had your client complete; he must complete our authorization instead, because of HIPAA. “The patient must physically come to our office and sign our authorization in person in order for our office to release medical records to the patient or anyone else because of HIPAA. “I can’t talk to you at all about your client’s health condition because of HIPAA. These are common phrases I have heard from health care providers when trying to gather evidence for a client’s case.

The word “HIPAA” has become synonymous with patient privacy. This privacy concept comes from the Privacy Rule, which developed out of a Congressional mandate for the adoption of Federal privacy protections for individually identifiable health information. In the Administrative Simplification provisions, Sections 261-264, of the Health Insurance Portability and Accountability Act (“HIPAA”) of 1996, Public Law 104-191, Congress directed the Secretary of Health and Human Services to establish these Federal privacy protections.

The HIPAA Administrative Simplification provisions directed the Secretary of Health and Human Services to adopt national standards for electronic health care transactions. To ensure that this new information sharing would not jeopardize patient privacy, Section 264 of HIPAA directed the Secretary of Health and Human Services to establish Federal privacy protections for individually identifiable health information. Thus, the Secretary drafted the Privacy Rule and required compliance, for most covered entities, by April 14, 2003. Covered entities include health plans, health care clearinghouses, and health care providers.

According to the Privacy Rule, a valid authorization for the release of protected health information is required when an attorney is requesting his client’s medical information from a health care provider. See 45 C.F.R. § 164.508 (2003). The general requirements for a valid authorization include:

  • a description of the protected health information to be used or disclosed
  • the names of person(s) or class of persons authorized to make requested use or disclosure
  • the names of person(s) or class of persons to whom the covered entity may make the requested use or disclosure
  • a description of each purpose of the requested use or disclosure
  • an expiration date or expiration event
  • the patient’s signature and date
  • notification to the patient of his right to revoke, how to exercise that right, and the exceptions to the right to revoke
  • notification of the ability or inability to condition treatment, payment, or enrollment for benefits on signing the authorization
  • an explanation of the potential for the information to be disclosed to another by the recipient and no longer be protected

Although these authorization rules may be followed by an attorney’s office, it does not guarantee cooperation from health care providers. Any attorney, or support staff, who has attempted to gather a client’s medical documentation to prove his case has undoubtedly heard the phrase “HIPAA” countless times, as a rebuttal to providing documentation.

Some may say that the Privacy Rule has empowered patients to have more control over their health information. However, the way the Privacy Rule functions in the attorney-client context is anything but empowering, because clients who want their attorneys to have unlimited access to their health information are burdened by the barriers their health providers place on the collection of this important information. Fear of penalties, misunderstanding of the Privacy Rule, and possibly a general dislike of the legal profession may all contribute to the apprehensiveness or unwillingness of certain health care providers to assist a law office with the development of a client/patient’s case. Whatever the rationale may be, this lack of cooperation can disadvantage a client’s case by delaying the receipt of essential evidence.

One example of how this lack of cooperation can disadvantage a client’s case occurred when our office was attempting to gather medical records from a hospital for a Social Security Disability case. These records illustrated when and how our client began suffering from auditory hallucinations, paranoia, and depression. The client spent a week at the hospital in an attempt to stabilize her psychiatric symptoms. These records were imperative for proving to the administrative law judge that this client was no longer able to work due to the onset of her mental conditions.

Our office went through the standard process of calling the hospital to inquire as to where to send a request for medical records. We prepared a detailed request and sent it to the medical records department along with a HIPAA compliant authorization that we had our client review and sign. In response to this request, the medical records department refused to accept our authorization and informed us that a hospital authorization would need to be completed by the patient (even though it is extremely difficult to even get this client to answer her telephone, let alone fill out more paperwork). The client also had a disability advocate, who in the meantime hand delivered a request for medical records. When she followed up with her request, she was informed that there was no record of such a request.

Our office continued to attempt to receive these much-needed records. We made sure all of the requested paperwork was completed and sent another request for medical records to the medical records department. We called their office daily to ensure that our second request was received and responded to. When we finally were told that it was received, we were informed that we were missing the required hospital authorization. We explained that the requested authorization was enclosed and that now the hearing was quickly approaching, so we needed their assistance with this matter. We spoke with the supervisor who could not assist us further because of “HIPAA”. The department would not expedite the process in any way and their only suggestion was to resend everything again and then wait to see what happens.

Since we had our client’s interest in mind and wanted to make sure the judge had ample time to review these important medical records prior to the hearing, we were forced to go beyond the medical records staff and talk to hospital administration. After several telephone calls and letters, we were able to set up a time to pick up these medical records. We were glad we went through all of the trouble of obtaining this documentation because we ultimately won the case for the client and these records assisted us in proving the elements of her case. However, our office was forced to spend a great amount of time and energy conducting the seemingly simple task of gathering a client’s medical records. This type of delay obviously can have a negative financial impact on a client and could be extremely detrimental to a client’s case. Unfortunately, this hospital staff’s behavior is just one example of how some health care providers function under the guise of protecting patient privacy.

Although it would be ideal for patients to be able to gather their medical information without the assistance of an attorney, often times it is necessary for an attorney to handle this part of the legal process on behalf of their clients (e.g., handling disability cases where a client has difficulty remembering tasks or physically visiting a doctor’s office).

Attorneys are required to provide diligent representation to their clients and need the cooperation of health care providers to meet this obligation. Although the protection of patient privacy is clearly an important goal, in practice it appears that the real world application of HIPAA’s Privacy Rule is more of a burden on clients and their counsel than a protection of clients’ rights.

By: Samantha Bogin, Esquire and published on July 10, 2006 in The Legal Intelligencer.

I Was America’s First ‘Nonbinary’ Person. It Was All a Sham.

Four years ago, I wrote about my decision to live as a woman in The New York Times, writing that I had wanted to live “authentically as the woman that I have always been,” and had “effectively traded my white male privilege to become one of America’s most hated minorities.”

Three years ago, I decided that I was neither male nor female, but nonbinary—and made headlines after an Oregon judge agreed to let me identify as a third sex, not male or female.

Now, I want to live again as the man that I am.

I’m one of the lucky ones. Despite participating in medical transgenderism for six years, my body is still intact. Most people who desist from transgender identities after gender changes can’t say the same.

But that’s not to say I got off scot-free. My psyche is eternally scarred, and I’ve got a host of health issues from the grand medical experiment.

Here’s how things began.

After convincing myself that I was a woman during a severe mental health crisis, I visited a licensed nurse practitioner in early 2013 and asked for a hormone prescription. “If you don’t give me the drugs, I’ll buy them off the internet,” I threatened.

Although she’d never met me before, the nurse phoned in a prescription for 2 mg of oral estrogen and 200 mg of Spironolactone that very same day.

The nurse practitioner ignored that I have chronic post-traumatic stress disorder, having previously served in the military for almost 18 years. All of my doctors agree on that. Others believe that I have bipolar disorder and possibly borderline personality disorder.

I should have been stopped, but out-of-control, transgender activism had made the nurse practitioner too scared to say no.

I’d learned how to become a female from online medical documents at a Department of Veterans Affairs hospital website.

After I began consuming the cross-sex hormones, I started therapy at a gender clinic in Pittsburgh so that I could get people to sign off on the transgender surgeries I planned to have.

All I needed to do was switch over my hormone operating fuel and get my penis turned into a vagina. Then I’d be the same as any other woman. That’s the fantasy the transgender community sold me. It’s the lie I bought into and believed.

Only one therapist tried to stop me from crawling into this smoking rabbit hole. When she did, I not only fired her, I filed a formal complaint against her. “She’s a gatekeeper,” the trans community said.

I should have been stopped, but out-of-control, transgender activism had made the nurse practitioner too scared to say no.

Professional stigmatisms against “conversion therapy” had made it impossible for the therapist to question my motives for wanting to change my sex.

The “Diagnostic and Statistical Manual of Mental Disorders” (Fifth Edition) says one of the traits of gender dysphoria is believing that you possess the stereotypical feelings of the opposite sex. I felt that about myself, but yet no therapist discussed it with me.

Two weeks hadn’t passed before I found a replacement therapist. The new one quickly affirmed my identity as a woman. I was back on the road to getting vaginoplasty.

There’s abundant online literature informing transgender people that their sex change isn’t real. But when a licensed medical doctor writes you a letter essentially stating that you were born in the wrong body and a government agency or court of law validates that delusion, you become damaged and confused. I certainly did.

Painful Roots

My trauma history resembles a ride down the Highway of Death during the first Gulf War.

As a child, I was sexually abused by a male relative. My parents severely beat me. At this point, I’ve been exposed to so much violence and had so many close calls that I don’t know how to explain why I’m still alive. Nor do I know how to mentally process some of the things I’ve seen and experienced.

Dr. Ray Blanchard has an unpopular theory that explains why someone like me may have been drawn to transgenderism. He claims there are two types of transgender women: homosexuals that are attracted to men, and men who are attracted to the thought or image of themselves as females.

It’s a tough thing to admit, but I belong to the latter group. We are classified as having autogynephilia.

After having watched pornography for years while in the Army and being married to a woman who resisted my demands to become the ideal female, I became that female instead. At least in my head.

While autogynephilia was my motivation to become a woman, gender stereotypes were my means of implementation. I believed wearing a long wig, dresses, heels, and makeup would make me a woman.

Feminists begged to differ on that. They rejected me for conforming to female stereotypes. But as a new member of the transgender community, I beat up on them too. The women who become men don’t fight the transgender community’s wars. The men in dresses do.

Medical Malpractice

The best thing that could have happened would have been for someone to order intensive therapy. That would have protected me from my inclination to cross-dress and my risky sexual transgressions, of which there were many.

Instead, quacks in the medical community hid me in the women’s bathroom with people’s wives and daughters. “Your gender identity is female,” these alleged professionals said.

Trans men are winning in medicine, and they’ve won the battle for language.

The medical community is so afraid of the trans community that they’re now afraid to give someone Blanchard’s diagnosis. Trans men are winning in medicine, and they’ve won the battle for language.

Think of the word “transvestite.” They’ve succeeded in making it a vulgar word, even though it just means men dressing like women. People are no longer allowed to tell the truth about men like me. Everyone now has to call us transgender instead.

The diagnostic code in my records at the VA should read Transvestic Disorder (302.3). Instead, the novel theories of Judith Butler and Anne Fausto-Sterling have been used to cover up the truths written about by Blanchard, J. Michael Bailey, and Alice Dreger.

I confess to having been motivated by autogynephilia during all of this. Blanchard was right.

Trauma, hypersexuality owing to childhood sexual abuse, and autogynephilia are all supposed to be red flags for those involved in the medical arts of psychology, psychiatry, and physical medicine—yet nobody except for the one therapist in Pittsburgh ever tried to stop me from changing my sex. They just kept helping me to harm myself.

Escaping to ‘Nonbinary’

Three years into my gender change from male to female, I looked hard into the mirror one day. When I did, the facade of femininity and womanhood crumbled.

Despite having taken or been injected with every hormone and antiandrogen concoction in the VA’s medical arsenal, I didn’t look anything like a female. People on the street agreed. Their harsh stares reflected the reality behind my fraudulent existence as a woman. Biological sex is immutable.

It took three years for that reality to set in with me.

When the fantasy of being a woman came to an end, I asked two of my doctors to allow me to become nonbinary instead of female to bail me out. Both readily agreed.

After pumping me full of hormones—the equivalent of 20 birth control pills per day—they each wrote a sex change letter. The two weren’t just bailing me out. They were getting themselves off the hook for my failed sex change. One worked at the VA. The other worked at Oregon Health & Science University.

To escape the delusion of having become a woman, I did something completely unprecedented in American history. In 2016, I convinced an Oregon judge to declare my sex to be nonbinary—neither male nor female.

In my psychotic mind, I had restored the mythical third sex to North America. And I became the first legally recognized nonbinary person in the country.

Celebrity Status

The landmark court decision catapulted me to instant fame within the LGBT community. For 10 nonstop days afterward, the media didn’t let me sleep. Reporters hung out in my Facebook feed, journalists clung to my every word, and a Portland television station beamed my wife and I into living rooms in the United Kingdom.

Becoming a woman had gotten me into The New York Times. Convincing a judge that my sex was nonbinary got my photos and story into publications around the world.

Then, before the judge’s ink had even dried on my Oregon sex change court order, a Washington, D.C.-based LGBT legal aid organization contacted me. “We want to help you change your birth certificate,” they offered.

Within months, I scored another historic win after the Department of Vital Records issued me a brand new birth certificate from Washington, D.C., where I was born. A local group called Whitman-Walker Health had gotten my sex designation on my birth certificate switched to “unknown.” It was the first time in D.C. history a birth certificate had been printed with a sex marker other than male or female.

Another transgender legal aid organization jumped on the Jamie Shupe bandwagon, too. Lambda Legal used my nonbinary court order to help convince a Colorado federal judge to order the State Department to issue a passport with an X marker (meaning nonbinary) to a separate plaintiff named Dana Zzyym.

LGBT organizations helping me to screw up my life had become a common theme. During my prior sex change to female, the New York-based Transgender Legal Defense & Education Fund had gotten my name legally changed. I didn’t like being named after the uncle who’d molested me. Instead of getting me therapy for that, they got me a new name.

A Pennsylvania judge didn’t question the name change, either. Wanting to help a transgender person, she had not only changed my name, but at my request she also sealed the court order, allowing me to skip out on a ton of debt I owed because of a failed home purchase and begin my new life as a woman. Instead of merging my file, two of the three credit bureaus issued me a brand new line of credit.

Walking Away From Fiction

It wasn’t until I came out against the sterilization and mutilation of gender-confused children and transgender military service members in 2017 that LGBT organizations stopped helping me. Most of the media retreated with them.

Overnight, I went from being a liberal media darling to a conservative pariah.

Both groups quickly began to realize that the transgender community had a runaway on their hands. Their solution was to completely ignore me and what my story had become. They also stopped acknowledging that I was behind the nonbinary option that now exists in 11 states.

The truth is that my sex change to nonbinary was a medical and scientific fraud. Consider the fact that before the historic court hearing occurred, my lawyer informed me that the judge had a transgender child.

I should have been treated. Instead, at every step, doctors, judges, and advocacy groups indulged my fiction.

Sure enough, the morning of my brief court hearing, the judge didn’t ask me a single question. Nor did this officer of the court demand to see any medical evidence alleging that I was born something magical. Within minutes, the judge just signed off on the court order.

I do not have any disorders of sexual development. All of my sexual confusion was in my head. I should have been treated. Instead, at every step, doctors, judges, and advocacy groups indulged my fiction.

The carnage that came from my court victory is just as precedent-setting as the decision itself. The judge’s order led to millions of taxpayer dollars being spent to put an X marker on driver’s licenses in 11 states so far. You can now become male, female, or nonbinary in all of them.

In my opinion, the judge in my case should have recused herself. In doing so, she would have spared me the ordeal still yet to come. She also would have saved me from having to bear the weight of the big secret behind my win.

I now believe that she wasn’t just validating my transgender identity. She was advancing her child’s transgender identity, too.

A sensible magistrate would have politely told me no and refused to sign such an outlandish legal request. “Gender is just a concept. Biological sex defines all of us,” that person would have said.

In January 2019, unable to advance the fraud for another single day, I reclaimed my male birth sex. The weight of the lie on my conscience was heavier than the value of the fame I’d gained from participating in this elaborate swindle.

Two fake gender identities couldn’t hide the truth of my biological reality. There is no third gender or third sex. Like me, intersex people are either male or female. Their condition is the result of a disorder of sexual development, and they need help and compassion.

I played my part in pushing forward this grand illusion. I’m not the victim here. My wife, daughter, and the American taxpayers are—they are the real victims.

by James Shupe published on March 10, 2019 in The Daily Signal and can be found here.

Members of previous generations now seem like giants — When did we become so small?

Many of the stories about the gods and heroes of Greek mythology were compiled during Greek Dark Ages. Impoverished tribes passed down oral traditions that originated after the fall of the lost palatial civilizations of the Mycenaean Greeks.

Dark Age Greeks tried to make sense of the massive ruins of their forgotten forbearers’ monumental palaces that were still standing around. As illiterates, they were curious about occasional clay tablets they plowed up in their fields with incomprehensible ancient Linear B inscriptions.

We of the 21st century are beginning to look back at our own lost epic times and wonder about these now-nameless giants who left behind monuments that we cannot replicate, but instead merely use or even mock.

Does anyone believe that contemporary Americans could build another transcontinental railroad in six years?

Californians tried to build a high-speed rail line. But after more than a decade of government incompetence, lawsuits, cost overruns and constant bureaucratic squabbling, they have all but given up. The result is a half-built overpass over the skyline of Fresno — and not yet a foot of track laid.

Who were those giants of the 1960s responsible for building our interstate highway system?

California’s roads now are mostly the same as we inherited them, although the state population has tripled. We have added little to our freeway network, either because we forgot how to build good roads or would prefer to spend the money on redistributive entitlements.

When California had to replace a quarter section of the earthquake-damaged San Francisco Bay Bridge, it turned into a near-disaster, with 11 years of acrimony, fighting, cost overruns — and a commentary on our decline into Dark Ages primitivism. Yet 82 years ago, our ancestors built four times the length of our singe replacement span in less than four years. It took them just two years to design the entire Bay Bridge and award the contracts.

Our generation required five years just to plan to replace a single section. In inflation-adjusted dollars, we spent six times the money on one-quarter of the length of the bridge and required 13 agencies to grant approval. In 1936, just one agency oversaw the entire bridge project.

California has not built a major dam in 40 years. Instead, officials squabble over the water stored and distributed by our ancestors, who designed the California State Water Project and Central Valley Project.

Contemporary Californians would have little food or water without these massive transfers, and yet they often ignore or damn the generation that built the very system that saves us.

America went to the moon in 1969 with supposedly primitive computers and backward engineering. Does anyone believe we could launch a similar moonshot today? No American has set foot on the moon in the last 47 years, and it may not happen in the next 50 years.

Hollywood once gave us blockbuster epics, brilliant Westerns, great film noirs, and classic comedies. Now it endlessly turns out comic-book superhero films or pathetic remakes of prior classics.

Our writers, directors and actors have lost the skills of their ancestors. But they are also cowardly, and in regimented fashion they simply parrot boring race, class and gender bromides that are neither interesting nor funny. Does anyone believe that the Oscar ceremonies are more engaging and dignified than in the past?

We have been fighting in Afghanistan without result for 18 years. Our forefathers helped to win World War II and defeat the Axis Powers in four years.

In terms of learning, does anyone believe that a college graduate in 2020 will know half the information of a 1950 graduate?

In the 1940s, young people read William Faulkner, F. Scott Fitzgerald, Pearl Buck and John Steinbeck. Are our current novelists turning out anything comparable? Could today’s high-school graduate even finish “The Good Earth” or “The Grapes of Wrath”?

True, social media is impressive. The internet gives us instant access to global knowledge. We are a more tolerant society, at least in theory. But Facebook is not the Hoover Dam, and Twitter is not the Panama Canal.

Our ancestors were builders and pioneers and mostly fearless. We are regulators, auditors, bureaucrats, adjudicators, censors, critics, plaintiffs, defendants, social media junkies and thin-skinned scolds. A distant generation created; we mostly delay, idle and gripe.

As we walk amid the refuse, needles and excrement of the sidewalks of our fetid cities; as we sit motionless on our jammed ancient freeways; and as we pout on Twitter and electronically whine in the porticos of our Ivy League campuses, will we ask: “Who were these people who left these strange monuments that we use but can neither emulate nor understand?”

In comparison to us, they now seem like gods.

By Victor Davis Hanson and published on October 10, 2019 and can be found here.

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