Category Archives for Legislation

Jewish opposition to the Holocaust Insurance Accountability Act of 2010

When is a contract not a contract?

JTA reports today that six Jewish organizations have signed a letter opposing the Holocaust Insurance Accountability Act of 2010.

The American Jewish Committee, the Anti-Defamation League, B’nai B’rith International, the Conference on Jewish Material Claims Against Germany, the World Jewish Congress and the World Jewish Restitution Organization condemned the Holocaust Insurance Accountability Act of 2010 in a recent letter to Rep. John Conyers (D-Mich.), chairman of the House of Representatives Judiciary Committee.

The bill would allow Holocaust survivors to sue insurance companies in U.S. courts for unpaid Holocaust-era policies. Claimants previously had to go through the International Commission on Holocaust Era Insurance Claims, which shut down in 2007.

A number of Florida-based Holocaust survivor groups, backed by some state lawmakers and insurance commissioners, say ICHEIC was fatally flawed, unduly deferential to the insurers and paid out only a tiny percentage of liable claims. ICHEIC officials have said that the process was as pliant as the law would allow.

The letter from the Jewish groups said that the bill would harm negotiations with Germany, which contributes hundreds of millions of dollars for survivors living in poverty, by reopening previously settled agreements.

“Many survivors wouldn’t receive anything in their lifetime” if the bill were to pass, said Roman Kent, a representative for the Claims Conference. “If I go to court, it will take 10 to 15 years to get anything. So what practical effect would the bill have?”

Proponents of the bill say that Germany’s commitment to reparation payouts is ironclad in the law and would not be affected by reopening the ICHEIC process.

The full JTA article can be read here.

Elena Kagan and Arlen Specter on Holocaust era insurance claims

Solicitor General Elena Kagan says she doesn’t want to count her chickens. Senator Arlen Specter says he is one of her chickens.

The issue was how Kagan, if confirmed to the Supreme Court, would vote on a petition requesting that the Court hear an appeal from a decision by the Second Circuit which held that Holocaust era insurance lawsuits were preempted by Executive branch foreign policy. Specter is clearly of the opinion that Holocaust survivors should have their day in court. Kagan ducked the question, claiming that as Solicitor General, her job would likely entail opposing a petition for certiorari by the Supreme Court in the very case discussed by Specter. Video of the exchange is below.

Legislation has been introduced in the House that would allow lawsuits against insurance companies based on state law to go forward (see H.R. 4596, “Holocaust Insurance Accountability Act of 2010″). Our previous posts on the subject can be read here and here.

Hat tip: HSF

Agudath Israel opposes the proposed NYS organ donation bill

I mentioned in the previous post that religious organizations would be lobbying hard against the proposed New York State legislation that would presume that applicants for driver licenses consent to organ donation unless they affirmatively opt out of the program.

Apparently Agudath Israel has already circulated a memo to members of the New York State legislature. According to Agudah’s press release (here and here):

While Agudath Israel of America acknowledges the shortage of organs for transplant and the fact that Jewish religious authorities may permit organ donation in certain cases, it considers “highly presumptuous” – in fact, “simply false – the assumption “that the hundreds of thousands of Orthodox Jews across New York State would be in favor of allowing their organs to be harvested and transplanted,” in the words of a memorandum sent by Agudath Israel representatives to all the members of the New York State legislature.

Agudath Israel notes further that “similar presumptions about other ethnic and faith groups across the state would be equally false. The plain truth is that many people, for religious or other reasons, would not want their all of their organs automatically harvested. To presume consent where there is no consent is to make a mockery of these people’s rights.”

…

“Presumed consent,” says Agudath Israel associate general counsel Rabbi Mordechai Biser, “would effectively abandon the entire concept of personal autonomy—the principle underlying all statutory and common law regarding health care proxies, living wills, and the like.”

The principle, he continues, “that individuals have the right to direct what should happen to their own bodies after death would be replaced with the assumption that the state has the right to use a person’s body as it wishes unless the person actively protested such use during his or her lifetime.

“To put it simply: A person’s body should not belong to the state to use as it sees fit simply because he neglected to insist otherwise when alive.”

The Agudath Israel memorandum urges the legislature to “search for other ways of increasing organ donation without trampling on the personal autonomy and religious liberties of countless New Yorkers.”

Proposed legislation in New York to presume consent to organ donation

Currently in New York a person can affirmatively choose to be an organ donor. This is typically done when applying for a New York State driver license or by checking and signing the box on the reverse side of a driver license.

New York State assemblyman Richard Brodsky has introduced legislation that would reverse the enrollment process. Under the proposed legislation (A09865), an applicant for a driver license is automatically enrolled as an organ donor unless he or she opts out of the program. Furthermore, if an applicant has not opted out of the organ donation program, his or her family members or health care proxy cannot override the presumed consent without showing that the “consent” was later revoked.

The sponsor’s memo states:

According to the New York State Organ Donor Network, New York State currently has the lowest donor Designation Rate (DDR) in the United States. In total, only 11% of eligible donors are currently enrolled in The New York State Organ and Tissue Registry.

This number starkly contrasts to the national average of 43%. In some states, such as Utah and Iowa, the DDR ranges between 65-70%. This bill will create a new model for organ and tissue donation that is aimed at significantly increasing that percentage while taking into consideration all of the individual rights of persons to decline enrollment into the program.

The bill does not change Public Health Law 4301(5)(c) which states that an organ donee may not accept the gift if the donee has reason to believe that an anatomical gift is contrary to the decedent’s religious or moral beliefs. But this is small comfort to those with moral or religious objections to organ donation. By not opting out, the decedent is presumed to have consented, and “reason to believe” that the gift is contrary to the decedent’s religious or moral beliefs seems to be a pretty slippery concept.

The proposed bill also does not change the manner in which an anatomical gift can be revoked. So if, for example, one did not opt out of organ donation on the driver license application form, the presumed consent can be revoked by a “signed card or document found on his person or in his effects.” A revocation can be added to a health care proxy, but not everyone signs a health care proxy, even though they should.

The New York Times Room for Debate blog had several comments for and against the legislation. Elaine Berg, president and chief executive officer of the New York Organ Donor Network, was in favor of the bill (no surprise given her job description), yet wrote:

Importantly though, in order to be considered, it is imperative that any system of presumed consent have robust safeguards to protect individual rights. There must be guarantees that every citizen is well-informed regarding their right to opt out, and the procedure to do so would have to be simple, accessible and barrier-free.

Multilingual education in communities lacking access to computers or English media would have to take place. There would need to be multiple types of outlets for opting out, including at social service agencies, schools, D.M.V.’s, places of worship and online. We would have to pay special attention to communities who may have broad concerns about donation.

Religious organizations will no doubt strenuously lobby against the bill.

Holocaust Insurance Accountability Act of 2010

In an Op-Ed for JTA in December 2009, U.S. Rep. Ileana Ros-Lehtinen (R-Fla.) wrote:

Although more than 60 years have passed since the world witnessed the atrocities committed by Hitler’s regime, many Holocaust-era compensation issues remain unresolved. One of these issues includes the continued failure of insurance companies to pay Holocaust survivors or families of victims for policies purchased before or during World War II. This is one of the enduring injustices of the Holocaust.

For more than 60 years, many European insurance companies have unfairly denied claims, arguing that Holocaust survivors and their families lack documentation — such as death certificates — needed to prove policy ownership. But such requirements are unfair and even disgraceful considering that the concentration camps in which many of the Holocaust victims perished did not issue death certificates, and that many of the assets and documents owned by the victims were confiscated by the Nazi regime.

In fact, in many cases, the only surviving records of such policies are in the vaults of the insurance companies, many of which shamefully refuse to disclose the names of Holocaust-era policyholders.

To address the problem of settling Nazi-era insurance claims, the International Commission on Holocaust Era Insurance Claims was established in 1998. Some European insurance companies agreed to participate in the ICHEIC process, but their participation was voluntary and lacked the necessary enforcement mechanisms. The ICHEIC process ended in 2007 after producing payments for only a small fraction of the value of Nazi-era insurance policies. Insurance companies were never forced to make adequate disclosure of policy ownership information, and potential claimants remain in the dark about whether they have a claim.

The failure of the insurance companies to settle Nazi-era insurance claims is particularly disturbing given that many Holocaust survivors in the United States live below the poverty line and lack adequate housing, food and medical care.

On February 4, 2010, Rep. Ros-Lehtinen introduced legislation in the House which clarifies that the ICHEIC, which was largely ineffective, succeeded in frustrating survivors’ attempts to collect insurance proceeds under laws of individual states:

In American Insurance Association, Inc., v. Garamendi, the United States Supreme Court held that under the supremacy clause of the Constitution of the United States, executive agreements and Federal Government policy calling for insurance claims against German and Austrian companies to be handled within ICHEIC preempted State laws authorizing State insurance commissioners to subpoena company records and require publication of the names of Holocaust era policy holders.

The proposed law would allow claims based on state law to go forward. It would also require insurance companies to comply with certain state laws regarding disclosure of policies in effect between January 30, 1933, and December 31, 1945. The bill would apply to lawsuits previously dismissed as preempted and would extend the statute of limitations for lawsuits to at least 10 years from the date the bill goes into law. See H.R. 4596, “Holocaust Insurance Accountability Act of 2010.”

In her Op-Ed for JTA, Rep. Ros-Lehtinen wrote that she had previously introduced a similar bill, but “unfortunately, the bill did not reach the House floor, in part because of the insurance industry’s fierce lobbying efforts against the measure. A lack of interest among key members of Congress also has pushed the rights of Holocaust survivors into the legislative abyss.”

The insurance industry’s deepest and sincerest belief in the sanctity of contracts is evident in its recent arguments that executive bonuses should be paid despite the reckless investments that brought the economy to its knees. One would almost expect to find insurance companies rushing to voluntarily honor survivors’ claims.