Concurrent Causation from “A Medley of Interesting Disability Cases”

Kruk v. Metropolitan Life Ins. Co.,2013 U.S. Dist. LEXIS 35637 (D. Conn. 2013)

Facts and holding: Rita Kruk (“Kruk”), a Human Resources Specialist, was a participant in an ERISA plan provided through her employment that provided disability benefits. Kruk’s Plan stated that if a disability was due to a mental or emotional disease, participants were entitled to monthly long term disability benefits for a maximum of 24 months. If the disability was due to physical injury or illness, then participants were entitled to benefits up to, at most, age 65. The Plan used an “any occupation” definition of total disability.

Kruk suffered from the combined effect of two co-morbid illnesses: one mental or emotional in nature (depression) and one physical in nature (lupus). In December 2000, she submitted a claim to Metropolitan Life Insurance Company (“MetLife”) for long term disability benefits. MetLife paid Kruk’s claim for the maximum 24-month duration pertaining to benefits for disability due to a mental or emotional illness. Kruk challenged this determination, claiming that she was disabled by lupus, a physical cause, entitling her to benefits until age 65. MetLife argued that Kruk’s disabling conditions were actually mental and emotional depression, and not the physical illness of lupus.

 

 

On summary judgment, and under an abuse of discretion standard, the Court found that Kruk was impaired “by a combination of symptoms and ailments: some readily ascribable to mental or emotional disease (severe depression, anxiety, cognitive impairment); others more readily ascribable to physical disease (arthralgias, anemia), still others of less determinable origin (fatigue, sleep disturbances).” Id. at *34-35. The Court held that in order to be entitled to disability benefits after the 24-month limitation period, Kruk had to show that “her physical disease, in and of itself and entirely disregarding her mental and emotional disease, was totally disabling.” Id. at *47. The Court found that Kruk could not make that showing. Despite a report from Kruk’s physician which concluded that Kruk was totally disabled by her lupus and depression, one independent physician determined that Kruk was totally disabled by her psychiatric condition and a second independent physician found that, from a physical standpoint, Kruk was capable of unrestricted work activities. Therefore, the Court ruled that Kruk was not entitled to more than 24 months of disability payments, and MetLife’s decision to terminate Kruk’s benefits after that time did not constitute an abuse of discretion.

The Court found its decision consistent with Sheehan v. Metropolitan Life Insurance Co., 368 F. Supp. 2d 228 (S.D.N.Y. 2005). There, the plaintiff suffered from two co-morbid illnesses – coronary heart disease, a physical illness, and cardiac neurosis, a mental disorder generated by fear of recurrence of a heart attack. The Sheehan court ruled that during the time in which the plaintiff’s co-morbidity existed, he had exhausted his entitlement to benefits resulting from psychiatric disease, and thus he could only receive additional disability benefits if the physical cardiac condition by itself constituted a total disability.

Lessons learned: The issue of concurrent causation can be very complicated, primarily because the same issue can be analyzed in a variety of contexts, or by focusing on different aspects of the dispute. Here, of course, the issue is a disability caused by both a mental and a physical condition. But the issue can also arise in the context of “accident versus sickness.” And more generally (and more commonly), the issue is presented in the property/casualty context when a loss is the result of both a covered and excluded cause. See, e.g., Garvey v. State Farm Fire & Casualty Co., 48 Cal.3d 395 (1989). In the disability context, that same issue can arise when a cause of disability is excluded specifically by rider, or the cause is excluded as a pre-existing condition. See, e.g., Fought v. Unum Life Ins. Co., 379 F.3d 997 (10th Cir. 2004). And many courts divert the focus of the dispute to whether one of the two causes is the primary or proximate cause of the loss or disability, sidestepping the issue of what happens with true independent, concurrent causation. See, e.g., Brooks v. Metropolitan Life Ins. Co., 27 Cal.2d 305, 309-310 (1945). Thus, different states may characterize the dispute differently, leading to different types of analyses, which in turn makes generalizing or predicting an outcome to this kind of dispute difficult. (And the author reminds the reader that this decision was based on a review under the “arbitrary and capricious” standard, and it is often difficult to generalize a legal conclusion based on a ruling from a court using that standard.)

For a review of another concurrent causation (or dual causation) case discussed by the author, see White v. Prudential Ins. Co., 2012 U.S. Dist. LEXIS 161675 (E.D. Penn. 2012), reviewed in the Ensemble of Interesting Disability Cases.

Finally, an entirely separate (and more common) issue may arise in determining whether a psychiatric condition is properly characterized as “mental” in the first place. See, e.g., Patterson v. Hughes Aircraft Co., 11 F.3d 948 (9th Cir. 1993). This issue, too, has been discussed in the author’s earlier annual case summaries.

From A Medley of Interesting Disability Cases

Plaintiff Awarded Benefits when Sedgwick Abuses its Discretion

Sedgwick Claims Management is notorious for abusing its discretion when determining whether a claimant qualifies for disability benefits. The most common ways in which Sedgwick abuses its discretion includes, the failure to consider treating doctors’ opinions, failure to consider a favorable determination by the Social Security Administration, failure to speak to treating doctors regarding the claimants’ disabling conditions, failure to have the claimant examined and relying solely on paper reviews of paid doctors. A court in the Northern District of California addressed some of these very issues resulting in a very favorable outcome for the Plaintiff.

The Plaintiff in James v. AT&T West Disability Benefits Program et. al, was seeking disability benefits under an ERISA plan administered by Sedgwick. The Court found that Sedgwick carved out the Plaintiff’s disability into discrete parts stating “because the evidence for any single ailment did not support a finding of disability, she was not disabled under the terms of the Plan”. Sedgwick failure to consider the Plaintiff’s overall disability as a whole and how the combination of mental and physical symptoms prevented her from working was an abuse of discretion.

The Court also held that Sedgwick abused its discretion when it failed to have its hired peer review physicians speak to the Plaintiffs treating doctors to discuss her disabling conditions. It was brought to the court’s attention that Sedgwick’s doctors placed calls to James’ treating physicians with instructions to return the call within 24 hours or a report would be submitted without their input. The court stated that most physicians have very busy schedules and allowing only 24 hours for a return call is unreasonable. James’ doctors were very familiar with her condition and would have been able to shed light on her multiple disabling issues. Sedgwick’s failure to provide a fair opportunity for these consultations to take place was arbitrary and capricious.

Sedgwick further failed to consider James’s subjection complaints of pain, requiring objective medical evidence that was impossible to provide, an abuse of discretion that occurs frequently with claimants suffering from conditions such as fibromyalgia. Finally, the Court slapped Sedgwick on the wrist yet again for failing to conduct an IME of a James, relying solely on a paper review, when its own policy allows for such an examination to take place.

This decision is a definite win for Plaintiff’s who have been denied disability benefits by Sedgwick as well as insurance companies that have denied their claims for similar reasons.

California Insurance-Related Bills Signed into Law

September 30, 2014, was the deadline for Governor Jerry Brown to take action on bills passed by the California Legislature during the 2014 regular legislative session. Here are summaries of noteworthy insurance-related bills that were signed into law. Unless noted otherwise, these new laws will go into effect on January 1, 2015.  

Assembly Bills

AB 1234 - provides in statute that information reported in the registration statement required by the Insurance Holding Company System Regulatory Act and information and documents disclosed in the course of an examination or investigation made pursuant to the Act is not subject to discovery from the commissioner and is not admissible into evidence in any private civil action if obtained from the commissioner in any manner.

AB 1395 - increases from $0.25 to $0.26 the annual per vehicle fee assessment on automobile insurance policies which funds consumer service functions at the Department of Insurance related to automobile insurance; the assessment will remain at $0.26 until January 1, 2016, thereafter the amount of the assessment will be determined by the insurance commissioner but may not exceed $0.26. AB 1395 also clarifies that an insurer, after it remits the $0.15 Seismic Safety Commission assessment on property insurance policies to the Department of Insurance, does not owe a duty to the policyholder to return a portion of the assessment in the event the policy is terminated early.   

AB 1804 - requires private passenger auto insurers, residential property insurers, and insurers providing individual disability income insurance to maintain a verifiable process or to adopt a procedure that allows an applicant or policyholder to designate one additional person to receive notice of lapse, termination, expiration, nonrenewal, or cancellation of a policy for nonpayment of premium. AB 1804 does not apply to policies of private passenger auto insurance that provide coverage for less than six months. AB 1804 will become operative on January 1, 2016.

AB 1897 - adds a section to the Labor Code which provides that when a client employer obtains or is provided workers from a labor contractor to perform labor within the employer’s usual course of business, the client employer and the labor contractor share all civil legal responsibility and civil liability for all workers supplied by the labor contractor for both the payment of wages and the failure to obtain workers’ compensation insurance.

AB 2056 - requires pet insurance policies to include specified disclosures, including policy exclusions, any waiting period or deductible, and whether the insurer reduces coverage or increases premium based on claim history. AB 2056 also sets forth definitions of certain terms, including “chronic condition,” “hereditary disorder,” and “veterinary expenses,” which a pet insurer must include in its policies if the insurer uses any of the terms in its policies. AB 2056 applies to any policy of pet insurance which is marketed, issued, amended, renewed, or delivered to a California resident on or after July 1, 2015.  

AB 2064 - revises the disclosure language which must be included in a residential property insurer’s mandatory offer of earthquake insurance. The disclosure revisions enacted in AB 2064 will become operative on January 1, 2016. AB 2064 also increases the statutory cap on the California Earthquake Authority’s operating expenses from 3% of its premium income to not more than 6% of its premium income.

AB 2128 - extends the sunset date on the statutory provisions relating to the Department of Insurance’s California Organized Investment Network (COIN) from January 1, 2015 to January 1, 2020. Existing law requires all admitted insurers to file data on their community development investments in California. AB 2128 limits the requirement to report on community development investments to each admitted insurer with annual premiums written in California equal to or in excess of $100 million for any reporting year. AB 2128 further provides that an insurer meeting the $100 million threshold also must report on its community development infrastructure investments and its green investments in California. The information required by AB 2128 must be submitted by July, 1, 2016, on investments made or held during calendar years 2013, 2014, and 2015. AB 2128 also revises the information regarding insurer community development investments which the Department of Insurance is required to post on its website.       

AB 2220 - requires private patrol operators to carry a minimum of $1 million in liability insurance coverage.

AB 2293 - establishes insurance requirements for a transportation network company which the bill defines as an entity “operating in California that provides prearranged transportation services for compensation using an online-enabled application or platform to connect passengers with drivers using a personal vehicle.” AB 2293 requires a transportation network company to maintain $1 million in primary liability coverage from the moment a participating driver accepts a ride request until the driver completes the transaction on the online-enabled application or platform or until the ride is complete, whichever is later. In the timeframe from when a participating driver logs on to the transportation network company’s online-enabled application or platform until the driver accepts a request to transport a passenger, the transportation network company insurance must maintain primary liability insurance coverage in the amount of at least $50,000/$100,000/$30,000; the company also must  maintain excess coverage of at least $200,000. The statutory section on insurance coverage enacted by AB 2293 states that nothing in the section “shall be construed to require a private passenger automobile insurance policy to provide primary or excess coverage during the period of time from the moment a participating driver in a transportation network company logs on to the transportation network company’s online-enabled application or platform until the driver logs off the online-enabled application or platform or the passenger exists the vehicle, whichever is later.”   These provisions of AB 2293 become operative on July 1, 2015.      

AB 2494 - authorizes a trial court to order a party, the party’s attorney, or both to pay reasonable expenses, including attorney’s fees, incurred by another party as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay.

AB 2734 - makes changes to the Insurance Code which the Assembly Insurance Committee characterizes as “noncontroversial.” Among other changes, AB 2734 1) increases from $5,000 to $20,000 the annual tax threshold which triggers the obligation on a surplus lines broker to make tax payments in monthly installments, 2) increases from $5,000 to $20,000 the annual tax threshold which triggers an obligation on an insurer to prepay taxes, 3) clarifies what constitutes “California business” for the purposes of insurers’ duty to file information with the insurance commissioner concerning procurement contracts with minority, women and disabled veteran-owned businesses, 4) changes the annual data call on private passenger auto insurance information to an every-other-year data call, 5) clarifies that the $5 million financial responsibility requirement for testing of autonomous vehicles may be satisfied with an insurance policy, and 6) authorizes the insurance commissioner to act on an application seeking status as a certified reinsurer 30 days after the application is published, rather than the 90 days required by existing law.

AB 2735 - sets forth in statute that a homeowner who has purchased an earthquake insurance policy that does not satisfy the standard coverage requirements must be reminded by the insurer at renewal that the homeowner has the right to purchase a policy that meets the standard coverage requirements. The reminder notice must be filed with the insurance commissioner 30 days before its first use and is subject to the commissioner’s disapproval.   

Senate Bills

SB 1011 - authorizes certain 501(c)(3) nonprofit organizations to insure themselves against damage to property and the losses related to the loss of use of property though a risk pool arrangement.

SB 1205 - requires the Department of Insurance’s curriculum board to develop or recommend courses of study for agents and brokers on commercial earthquake risk management.  

SB 1273 - extends the sunset date on the California Low-Cost Automobile Insurance Program from January 1, 2016 to January 1, 2020. SB 1273 also amends several statutory provisions relating to the program. Among other changes to the program, SB 1273 1) increases the cap on the value of an automobile that may be insured under the program from $20,000 to $25,000 and authorizes the California Automobile Assigned Risk Plan Advisory Committee to adopt a method to determine the value of an automobile, subject to the insurance commissioner’s approval, 2) allows a person who has fewer than three years of driving history to qualify for coverage under the program, and 3) entitles certified producers to a commission of 12% or $50, whichever is greater.

SB 1446 - allows a small employer health plan or a small employer health insurance policy that was in effect on December 31, 2013, that is still in effect on the effective date of SB 1446, and that does not qualify as a grandfathered health plan under the federal Affordable Care Act, to be renewed until January 1, 2015, and to continue to be in force until December 31, 2015. SB 1446 went into effect on July 7, 2014.

 

Giving People a Second Chance at Home: Why Rental Admission Policies Should Follow the Progression of Employment Policies

This blog post was coauthored by Todd Belcore, Community Justice Lead Attorney at the Shriver Center.

Rental property owners who utilize “blanket bans,” which typically deny admission outright to anyone with a record of criminal conviction or even just a history of arrests, need to take a look at what’s happening with similar blanket bans in employment. 

This past summer Illinois became the
fifth state to enact a “ban the box” law for private employers. Most employers can no longer ask about a person’s criminal history on the initial application for employment. Only after an individual is considered a qualified candidate for the job can the employer consider a person’s criminal background. Individuals in states with “ban the box” laws have both an incentive to become qualified for job opportunities and a legitimate chance to sell themselves to a prospective employer so they can get the jobs they need to take care of themselves and their families.

“Ban the Box” laws don’t just give people who have turned their lives around a chance to work; they are also good for employers. Employers who don’t rule applicants out based on criminal history have access to a broader pool of applicants from which they can hire the best candidate for the jobs. Moreover, this hiring practice helps employers avoid possible violation of federal civil rights laws relating to employment. (
The Equal Employment Opportunity Commission (EEOC) has promulgated guidance
noting that blanket hiring bans of individuals with criminal and/or arrest histories could violate civil rights laws.)

Employment-related blanket bans disproportionately harm minorities, who have greater contact with the criminal justice system despite not actually being more likely to commit crime—especially as it relates to drug offenses. As a result, blanket bans relating to criminal history can be a proxy for discrimination according to race.

While employers in states with “ban the box” laws can ultimately reject applicants with criminal records, they may only do so after an individualized analysis of each applicant’s qualifications. This evolution in thinking honors the value of giving people second chances and goes a long way towards reintegrating people into society and advancing civil rights.    

Unfortunately, the progress made in eliminating employment-related blanket bans has not influenced similar bans instituted by property owners in rental housing. In fact, housing-related blanket bans have actually become more commonplace in recent years and have expanded to bar not just persons with conviction histories, but also individuals who have nothing more than an arrest on their record.

These housing-related blanket bans have become so pervasive that in 2011, former Secretary of Housing and Urban Development (HUD) Sean Donovan urged housing providers to use their discretion in admitting persons with criminal history to housingYet a 2011-12 report of Illinois affordable housing providers found that this discretion was essentially used to enact far-reaching criminal background check admission policies. For example, some rental housing admission policies deny admission to anyone who has ever been arrested for anything in his or her lifetime, or impose 100-year criminal background checks on applicants. Moreover, municipal rental crime-free ordinances, which require landlords to conduct criminal background checks of all rental applicants, have proliferated. These ordinances may prevent rental housing applicants from living in certain parts of the country entirely. 

Beyond just affecting an individual’s ability to obtain housing for themselves and their loved ones, these housing bans also create serious obstacles to gaining employment, because the lack of a permanent address can make finding a job next to impossible. In that regard, housing-related bans erect the same type of civil rights impediments the EEOC identified with respect to employment-related bans.

Right now, too many people are forced to go without housing simply because of policies that may violate civil rights and that do not recognize the broader notion that people can turn their lives around. Thankfully, that can change. HUD’s Office of Fair Housing and Equal Opportunity should issue guidance, similar to the EEOC guidance, making clear that some of these housing-related policies violate civil rights laws. New HUD Secretary Julian Castro should also go beyond what his predecessor did and limit the use of arrest records and lifetime bans for minor and non-violent offenses. Affordable housing providers should follow the lead of agencies like the Chicago Housing Authority, which recently began a pilot program to allow persons with criminal histories the chance to move back in with their families. Finally, laws should also be enacted to bar the blanket bans in housing, including the use of arrest records to deny admission to rental housing.  Because everyone deserves to have a place they can call home.


Joelle Ballam-Schwan contributed to this blog post.

 

   

PART III: How Can Non-participating Providers Rendering Emergency Services Enforce their Rights in Payor-Provider Reimbursement Disputes?

Non-participating providers’ rights to sue in a reimbursement dispute, again, depend on whether the patient they rendered services to has a Department of Mental Health Care (DMHC) or California Department of Insurance (CDI) regulated plan. California Health and Safety Code section 1371.4(b) provides that:

"A health care service plan, or its noncontracting medical providers, shall reimburse providers for emergency services and care provided to its enrollees, until the care results in stabilization of the enrollee, except as provided in subdivision (c). As long as federal or state law requires that emergency services and care be provided without first questioning the patient's ability to pay, a health care service plan shall not require a provider to obtain authorization prior to the provision of emergency services and care necessary to stabilize the enrollee's emergency medical condition."

While no California court has yet been called upon to determine the availability of a stand-alone, private right action for violation of section 1371.4(b), two California appellate decisions have held that medical providers could bring private actions for violations of the Knox-Keene Act under the Unfair Competition Law (UCL) and common law theories. In Coast Plaza Doctors Hosp. v. UHP Healthcare, (2002) 105 Cal. App. 4th 693, the court held that the Knox-Keene Act did not bar a health care provider from seeking reimbursement required by California Health and Safety Code section 1371 directly from the health care insurer for services rendered to enrollees of the health care plan “on a common law breach of contract theory or under the unfair competition law (Bus. & Prof. Code, § 17200).” Furthermore, if ERISA-governed policies are at issue, the protections and rights of emergency providers under Health and Safety Code section 1371.4 are “not subject to ordinary preemption under ERISA because it falls under the purview of ERISA's saving clause.” Coast Plaza Doctors Hosp. v. Blue Cross of California, (2009) 173 Cal. App. 4th 1179, 1189.

Both Bell and Coast Plaza contemplate causes of action under the UCL or at common law (breach of contract, implied-in-fact contract, equitable indemnity, comparative negligence, or other statutory or common law bases for liability) but did not definitively establish that there is a private cause of action under section 1371.4 to enforce violations of this law. In California Pacific Regional Medical Center v. Global Excel Management, Inc., (2013) Case No. 13-cv-00540 NC (unpublished), a federal court held that there is no private cause of action under Health and Safety Code section 1371.4. Thus, courts have conferred on private parties the right to enjoin violations of the Knox-Keene Act through the UCL or at common law but have not conferred a general power to enforce the Act under such provisions as section 1371.4. Instead, such “power has been entrusted exclusively” to the DOC and now to the DMHC, “preempting even the common law powers of the Attorney General.” California Med. Ass'n, Inc. v. Aetna U.S. Healthcare of California, Inc., (2001) 94 Cal. App. 4th 151, 161.

Thus, California law has established the following rules:
1. Non-participating providers providing emergency services to enrollees of DMHC and CDI-regulated policies have standing to directly sue health insurance companies to resolve a reimbursement disputes over services rendered.

2. Non-participating providers providing non-emergency services to enrollees of DMHC and CDI-regulated policies do not have standing to directly sue health insurance companies to resolve reimbursement disputes over services rendered.

Our next post will cover how reimbursement disputes are resolved in court after a provider or patient files suit alleging either UCL or common law causes of action against an insurer who has underpaid claims for services rendered...

SNAP Challenge Day Seven — A Few Lessons Learned

Today is the last day of my participation in the SNAP challenge. My wife and I have got leftover chicken for lunch, and pasta and broccoli for dinner again, so we budgeted all right. We wound up spending $68.25 (not counting two restaurant meals for me) for the week. That’s $1.75 less than we thought we had when we did our shopping but $8.75 more than we learned we actually had on day one of the challenge.

How would we have cut our spending for the week by $8.75? I would have saved $4 if I hadn’t twice forgotten to bring my lunch. I probably could have saved about $3 by buying the store brand of whole coffee beans instead of paying $7 for 12 ounces of Starbucks. Where would the other $1.75 have come from? Store brand cereal or lunch meats? Iceberg lettuce? No parmesan cheese on the pasta?

But that’s all hindsight. If we had simply stopped spending when we hit $60, we would have experienced real hunger. And I wasn’t quite willing to take the simulation that far.

Still, I learned a lot this week by taking the SNAP challenge and getting a glimpse of what it’s like to live on SNAP benefits. I don’t think there’s any other way to do that.

What have I felt?

Stress when I was food shopping and had to watch every penny, pass up the sales, and put back anything that I didn’t absolutely need.

Fear of going hungry when I learned that our benefits had been “cut” without notice.

Sadness when I realized that all I could afford were the basic necessities with no budget for snacks or dessert.

Mad at myself when I realized I forgot to bring my lunch and I either had to go hungry or incur a small but unaffordable expense.

Powerless when something unexpected came up and I had no flexibility to deal with it.

Mostly I felt a sense of the the desperation that SNAP recipients must experience every day from having to constantly worry about whether they will have enough food to make it through the week. 

 

SNAP Challenge Days Five and Six — Making Sacrifices, Within Limits

[Editor's Note: Shriver Center Director of Economic Justice Dan Lesser is taking the SNAP challenge this week and blogging about his experiences.]  

Day Five

In the morning, a friend at the office announced that we were out of coffee. I had not been counting the office coffee I drink. I don’t know what it costs, it can’t be too much. My friend tells me he’s going to Starbucks, and I tell him I really need some coffee. He knows I’m taking the SNAP challenge, so he offers to buy me a cup. Since I basically panhandled him for the coffee, do I have to count it?

At lunchtime, I realize that I left my lunch on the kitchen counter at home again. I normally bring my lunch to work, so this is not something new I am doing for the SNAP challenge. As my friends can attest, I’m just forgetful.

That’s one of the biggest differences between people who are on and are not on SNAP. The consequences of making a mistake, like forgetting your lunch, if you’re on SNAP are pretty severe--you might not eat that day. For the rest of us, when we forget our lunch, it’s hardly noticeable; we just go and get takeout. 

On my wife’s advice, I go to a nearby drugstore and get a package of ramen noodles, the cheapest way to fill up. I’m going to Wrigley Field this afternoon with an old friend who’s visiting from New York, but no way can I afford ballpark food.

At the ballpark, my friend offers to get me a hot dog, but I tell him I just ate. He looks at me funny—why would somebody eat just before they go to a baseball game and miss out on ballpark food? Later, he texts me from the concession stand and asks if I like peanuts. “No,” I lie. Then, he again offers me a hot dog. 

After the game, my friend and I are meeting some other friends for dinner. Again, I spend somewhere close to a full week’s SNAP allotment on a restaurant meal (paying for a portion of my friend’s dinner too). Ignoring the SNAP challenge rules, I don’t count it. But what would I do if were really on SNAP and I had an old friend visiting from New York? I have no idea.

Day Six

Pretty uneventful. It’s a Saturday, which makes it easier in that you don’t have to worry about forgetting to bring your lunch. On the other hand, there are plenty of temptations in the pantry.

That night, my wife and I watch a movie with our new puppy. A perfect time for popcorn. Can’t do it.    


 

Poverty Rate Falls But Is Still High, Income Inequality Unchanged

What is the state of poverty, in this 50th anniversary of the War on Poverty? According to Census Bureau figures released last week, and to the surprise of some experts, following increases in poverty due to the Great Recession, the poverty rate finally began to fall in 2013, year four of the economic recovery.

The overall poverty rate declined to 14.5% in 2013 from 15.0% in 2012—the first significant decrease since 2006—and the poverty rate for children under age 18 was down significantly to 19.9% from 21.8%, the first time the child poverty rate has declined since 2000.

Yet, while the poverty rate has finally begun to fall, it is still two points higher than it was at the start of the Great Recession in 2007. Over 45 million Americans live in poverty. And, while the reduction in the poverty rate might initially feel reassuring, further examination of the numbers reveals persistently high levels of inequality reflected in economic trends for women, children, people of color, and folks at the lowest income levels.

Women and Children

Women still made only 78 cents for every dollar men earned in comparable employment, an insignificant increase of one cent from last year. Families maintained by a female householder had a median income of $35,154 compared to $50,625 for families maintained by male householders and $76,509 for households maintained by married couples. Although overall poverty rates fell for both men and women between 2012 and 2013, women still experienced poverty at a rate of 15.8% as compared to 13.1% of men.

The numbers grow starker when looking at women with children. In 2013, children represented 23.5% of the total population but 32.3% of people in poverty. One in five related children under age 6 lived in poverty, and 55% of related children under age 6 with single mothers lived in poverty, more than five times the rate for related children in married-couple families.

Black and Hispanic Households

Despite the significant, 3.5% increase in Hispanic median household income, a large disparity in income based on race and ethnicity remained. Median Hispanic household income was $40,963 while median White, non-Hispanic household income was $58,270. Black households had an even lower median income level of $34,598.

The ratio of Black to non-Hispanic White income, 0.59, has not changed significantly since 1972, the first year the Census Bureau collected data for this specific comparison. Not only are the gaps not closing, Black and Hispanic households have experienced larger and more persistent median income decreases than White households since median income was at its height in 1999, with Black households earning 13.8% less than they did in 2000, Hispanic households earning 8.7% less than in 2000, and non-Hispanic White households earning only 5.6% less since 2000.

In 2013, the poverty rate of black children (38%) and Hispanic children (30%) was much higher than that of non-Hispanic white children (11%).

Income Inequality

With the Gini Index, a Census-published measure of income inequality, unchanged from its record high level last year, and the median household income level far below pre-recession levels, the wealthiest households have disproportionately benefitted from the economic growth of the last four years. The share of national income that goes to the top fifth of households, which has been growing for decades, was 51.0%, a historic high. That means the top 20% of households received more of the nation’s income than the bottom 80% combined.

Capturing the Full Picture

The official poverty rate offers an important but flawed view of poverty in the United States because it does not account for important noncash income supports received by low-income individuals and families and it underestimates living expenses. Later this month, the Census Bureau will release the Supplemental Poverty Measure (SPM), which modernizes the poverty measure by accounting for the role of programs like the Supplemental Nutrition Assistance Program (SNAP, formerly Food Stamps) and refundable tax credits like the Earned Income Tax Credit (EITC) in measuring household income. The SPM provides a way of evaluating the effectiveness of these programs in fighting poverty. In 2012, if the Census Bureau counted SNAP benefits towards income, 3.7 million fewer people would have been living in poverty. Counting the EITC would have reduced the number of children in poverty by 2.9 million.

Conclusion

Even though the experts’ prediction of a stagnant poverty rate was wrong, they had something right: not much has changed. One in seven Americans and nearly one in five American children are poor. Moreover, women and children and people of color still experience huge income disparities compared with others, and the rich are benefiting from economic growth far more than the poor.

The author thanks MacKenzie Speer, Economic Justice and Opportunity VISTA, for her extensive work on this blog.

SNAP Challenge Days Three and Four – Unexpected Expenses

[Editor's Note: Shriver Center Director of Economic Justice Dan Lesser is taking the SNAP challenge this week and blogging about his experiences.]

Day Three

I forgot that I had a breakfast date with four of my friends/work colleagues today. Even worse, it was my turn to buy. Breakfast for four at a sit-down downtown restaurant: $65.31. More than our full week’s $60 SNAP allotment.

The SNAP challenge rules are clear. “All food purchased and eaten during the challenge week, including dining out, must be included in the total spending.” Ah, but I’m a lawyer and I’ve found a loophole. Under the rules of the SNAP program itself (not SNAP challenge rules), benefits may not be used to buy a prepared meal at a restaurant.  So I don’t have to count breakfast, right? Or do I?

Uh-oh, I forgot to bring my lunch.

Having eaten an enormous breakfast, I thought I could make it until dinner. But, when my last meeting ended at 4:30, I was famished and still had a couple more hours to put in. I had to eat something. I went down to the store in our building’s lobby and poured over the merchandise, looking for the cheapest thing that would fill me up until I got home. Six ounces of trail mix for just $2, a good buy, but still $2 I don’t have.

Day Four

This afternoon we had an unplanned 350-mile car trip to Indiana. A long car trip normally entails some food-related expenses such as a fast-food meal, coffee, and a candy bar. But we hadn’t budgeted for any of that. So we brought sandwiches to eat in the car. No stopping at Starbucks for coffee. No candy bar from the vending machine at the gas station.

Taking the SNAP challenge gives you a taste of what it's like when unforeseen life events happen and you don’t have any flexibility to deal with them. You can’t do the little things that the rest of us do to cushion the blow. All you can do is grit your teeth and survive.  

 

SNAP Challenge Day Two – Cheating

The SNAP challenge rules are clear. They say “avoid accepting free food…at work,” I read all of the rules beforehand. Carefully.

Yet, within hours of beginning the SNAP challenge on Monday, I had cheated. I had a couple of cookies at work. Monday night, after dinner, I had two (small) handfuls of pumpkin seeds and two more of chocolate-covered sunflower seeds. On Tuesday, I had a slice of fruit bread at work and, after dinner, some dried apricots and more pumpkin seeds. At least I’ve managed to resist my coworker’s candy bowl.

When we were planning our week, my wife and I didn’t think about desserts and snacks. It doesn’t matter, we couldn’t have afforded them anyway. It’s not that I really needed the cookies and the pumpkin seeds, it’s just that a dinner of rice and beans, or baked chicken and potatoes, no matter how delicious, isn’t quite satisfying. I craved a few more tastes.

Which got me thinking about that 8% cut in SNAP benefits that occurred in November 2013. When I’ve written or talked about this before, I focused on the monetary amount that families of different sizes were losing under the cut.

But it isn’t really about the money. Rather, it’s about having the capacity to put a little variety into one’s diet. And, for a family, the opportunity to provide an occasional treat to the children. Not just three square meals a day, but some simple desserts and snacks too.

Some think SNAP recipients should only be able to use their benefits to purchase nutritious necessities. Why should the taxpayer subsidize desserts and snacks? But I would argue, based on my SNAP challenge experience, that it’s not really about the desserts and snacks either. What it’s really about is having the freedom and the agency to put some variety into your own and your children’s lives, to have some fun, to not always have to put your nose to the grindstone when you plan, budget, and do your weekly shopping. Doesn’t every kid deserve to have Flamin’ Hot Cheetos once in a while?