Headlines about "ERISA preemption of state law"
Gathered from the web by the editors at BenefitsLink.com.
State Legislation Opposing Certain Health Reforms, 2009-2010
Excerpt: "States have an extensive and complicated shared power relationship with the federal government in regulating various aspects of the health insurance market and in enacting health reforms. As part of state-based responses to federal health reform legislation, members of at least 11 state legislatures are using the legislative process to seek to limit, alter or oppose selected federal actions, including single-payer provisions and mandates that would require purchase of insurance. Based on actions initially in Arizona, several states propose or may propose state constitutional amendments, using language such as . . . ." (National Conference of State Legislatures)
[Guidance Overview] ERISA Can Govern Individual Disability Insurance Policies in an Employment Setting
Excerpt: "A recent case decided in Tennessee serves as a reminder that an insurance arrangement does not have to be group insurance in order for ERISA to apply. In Alexander v. Provident Life and Accident Insurance Co. . . . (E.D. Tenn. Oct. 16, 2009), the court held that individual disability insurance contracts for physician employees constituted an ERISA plan." (Poyner Spruill)
Head of Employee Benefit Security Administration, Phyllis Borzi, on Health Care Reform and ERISA Remedies
Excerpt: "[She talks] about the need for need for ERISA reform in the area of remedies as part of the push for health care reform. [In BNA's Pension and Benefits Daily, she says] Plan sponsors and employee benefit attorneys too often jump to the defense of the Employee Retirement Income Security Act for all the wrong reasons . . . ." (Workplace Prof Blog)
[Guidance Overview] Court Holds That QDRO Controls Determination of Life Insurance Beneficiaries Because Welfare Plan QDROs Are Not Preempted by ERISA
Excerpt: "EBIA Comment: The list of decisions that recognize a preemption exception for welfare plan QDROs keeps growing. Although the decision in this case (by a trial court in the First Circuit) is not binding precedent there, welfare plans in the Second, Fourth, Sixth, Seventh and Tenth Circuits should be prepared to deal with QDROs. Plan sponsors and insurers faced with conflicting QDRO-based claims to welfare benefits may, as the insurer did in this case, want to consider using interpleader to resolve the dispute and avoid the risk of having to pay benefits twice. Notwithstanding the growing weight of authority to the contrary, we continue to think there are reasons to conclude that ERISA's QDRO provisions properly apply only to pension plans (based on the legislative history and because the QDRO definition appears in Part 2 of ERISA which, under the plain language of ERISA Section 201(1), does not apply to welfare plans). These arguments might yet form the basis for a different conclusion in another federal circuit (or even in the Supreme Court, if the issue ever reaches that court)." (Employee Benefits Institute of America)
Supreme Court Asks for Obama Administration's Stance on Healthy San Francisco
Excerpt: "The justices' action Monday is not unusual. The court regularly asks the federal government for its position in important cases, particularly those that involve a possible conflict between federal and state or local laws. Such requests indicate that one or more justices are undecided about granting review, which requires four votes on the nine-member court." (San Francisco Chronicle)
[Guidance Overview] Ninth Circuit Holds That ERISA Does Not Preempt Hospital's State Law Claims
Excerpt: "In Marin General Hospital v. Modesto, the Ninth Circuit had to determine whether the Hospital's state-law claims are completely preempted under ? 502(a)(1)(B) of ERISA, 29 U.S.C. ? 1132(a)(1)(B), and thus whether the case was properly removed from state to federal court." (Roy Harmon III via Health Plan Law)
[Opinion] Healthy San Francisco Program Rated High by Participants, According to Survey
Excerpt: "At least two thoughts here: 1. The success of this pay or play program can act as a successful model for how an employer mandate can work for the provision of health care to the greater populations, and 2. Although the initial signs are good, there are still barriers as far as explaining the program to participants and these challenges remind me of those being fought on the pension side of the ledger. The San Francisco program is not out of the woods. There is still a possibility will be found preempted under ERISA." (Workplace Prof Blog)
[Opinion] Health Insurance Reform and ERISA Preemption
Excerpt: "One simple reform to the healthcare system which would be simple, budget-neutral and actually conservative would be to repeal the part of ERISA that immunizes health insurance providers from state common law actions in tort and contract. I honestly do not know whether the plans being considered by the Congress would provide this repeal, or whether they simply maintain the federal preemption but provide for federal remedies with more teeth than the current system. The current federal remedies -- reimbursement of out-of-pocket expenses by a victorious beneficiary or injunctive relief -- are useless for most people, and certainly lack the deterrent effect of state tort and even contract remedies." (TortsProf Blog)
An Interview with Brooks Hamilton Touching on ERISA and Pre-emption
Excerpt: "BrightScope: Why do you think judges are 'ERISA novices' as you have indicated in your writings? Brooks Hamilton: Judges 'appear' to be ERISA novices at their very best, or so it seems to me. Some may indeed even have a heartfelt bias, or perhaps an honest predisposition regarding fundamental ERISA issues, which in the altogether render them fundamentally indifferent, if not viscerally opposed, to the fiduciary standards imposed by ERISA. It must be remembered that 'Trust law' as a descendant of the Common Law was not a basic part of federalism in the first place." (BrightScope Inc)
A Summary of Judge Sotomayor's ERISA Decisions: Part II (PDF)
3 pages. Excerpt: "This handful of cases is representative of Justice Sotomayor's decisions in ERISA cases during her time as a District Court judge. In short, Judge Sotomayor's District Court ERISA decisions are well-reasoned, thoughtful and meticulous. They are not the product of a 'judicial activist.' Although we often see cases in which courts simply don't seem to 'get it' when it comes to ERISA, the same cannot be said for Judge Sotomayor based on a review of those opinions." (Reish & Reicher)
[Guidance Overview] A Summary of Judge Sotomayor's ERISA Decisions at the Second Circuit Court of Appeals (PDF)
5 pages. Excerpt: "As a general proposition, there is nothing talismanic in Judge Sotomayor's ERISA decisions. They tend to follow existing law, rather than create it. Her opinions are clear, intelligent and thoughtful. They tend to reflect a thorough research of precedent, a comprehensive study of the record and a methodical examination and analysis of the arguments of the parties. . . . While on the Second Circuit Court of Appeals, Judge Sotomayor was a member of the panel deciding approximately twenty ERISA related cases. We will briefly discuss the five cases in which she has written the opinion for the Court." (Reish & Reicher)
[Guidance Overview] Sixth Circuit Rules That a Program of Insured Benefits to Which an Employer Pays the Premiums for at Least One Employee Is Subject to ERISA As to All Employees
Excerpt: "In Helfman v. GE Group Life Assurance Company, No. 08-2168 (6th Cir. 2009), the Court faced the question of whether a program, which consisted of two insurance policies that paid long-term disability benefits to employees (the 'Program'), was subject to ERISA. The plaintiff did not want the Program to be subject to ERISA, because he was bringing a state law claim against the insurers under the Program which ERISA would preempt. The case centered on whether the Program was exempt from ERISA under the 'safe harbor' found in the Department of Labor's regulations at 29 C.F.R. ? 2510.3-1(j). For the safe harbor to apply to the Program, among other requirements of the regulations, no premiums may be paid to the Program by an employer (the 'No Premium Condition')." (Stanley D. Baum of Eaton & Van Winkle)
[Guidance Overview] Sixth Circuit Opines on ERISA 'Safe Harbor' Exemption
Excerpt: "In general, in order to fall under this safe harbor (and fall out of ERISA), one of the requirements of the safe harbor is that no contributions be made by the employer, i.e. if the employer is making contributions to the plan, then it is an ERISA-covered plan. Thus, because many disability plans are funded either partially or fully by the employer, they are covered by ERISA. In the recent Sixth Circuit case of Helfman v. GE Group Life Assurance Company, et al., a participant had challenged the district court's decision that the plan was covered by ERISA because the participant sought to get out from under the ERISA banner of deference afforded the plan administrator's decision. The district court had ruled that the plan administrator had not abused its discretion and upheld the insurer's termination of the participant's benefits." (ERISA Fiduciary Guidebook)
[Guidance Overview] HIPAA Does Not Preempt State-Law Claim for Improper Disclosure of Medical Records
Excerpt: "EBIA Comment: Although this case did not involve a health plan, it caught our attention because it makes the important point that while HIPAA provides no private cause of action for individuals whose privacy rights are violated, state-law claims are still possible. This is because only state laws that are 'contrary' to HIPAA are preempted and a provision of state law is 'contrary' to HIPAA only if it would be impossible to comply with both the state and federal requirements, or if the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of HIPAA. We also note that if the state-law claim in this case had been made against a health plan subject to ERISA (ERISA applies to most private-sector plans), the plan would have had an additional argument for preemption based on ERISA's more sweeping preemption provision." (Employee Benefits Institute of America)
Obama Administration Stays Out of San Francisco Health Spending Case
Excerpt: "The Obama administration has not joined employers in seeking a Supreme Court review of a federal appeals court ruling that upheld San Francisco's controversial health care spending law. The administration let pass the July 10 deadline for friend-of-the-court briefs to be filed in the case." (Business Insurance)
Education and Labor Committee ERISA Waiver Amendment to H.R. 3200 (PDF)
4 pages. AMENDMENT OFFERED BY MR. KUCINICH OF OHIO. (U.S. House of Representatives Committee on Education & Labor via American Benefits Council)
Managing Health Benefits in Challenging Times: Mercer Survey on Recession and Reform
Excerpt: "Mercer's Survey on Recession and Reform explores how the downturn and health care reform efforts are affecting employers' health benefit programs. This Perspective reports the survey's findings on employers' expected health benefit costs in 2009 and cost-control plans for 2010; impact of the recently enacted federal COBRA subsidy, special CHIP enrollment rights and mental health parity expansion; and views on proposals to impose individual-coverage or employer pay-or-play mandates, curb employer deductions for benefits, waive ERISA pre-emption, or create a single-payer health care system. (Perspective, 13 Jul 2009, 11 pages)" (Mercer LLC)
Obama Administration Remains Quiet on San Francisco Health Plan
Excerpt: "In contrast to President George W. Bush's Labor Department, which unsuccessfully urged a federal appeals court to overturn the groundbreaking law, the new administration submitted no arguments before the July 10 deadline for briefs supporting or opposing Supreme Court review. President Obama, meanwhile, has praised the San Francisco program, the first of its kind in the nation, while pressing Congress to enact comprehensive health coverage." (San Francisco Chronicle)
Little Unity Among Businesses on Health Care Reform, According to Survey
Excerpt: "One reform proposal that scares employers who do business in multiple states is the possibility that officials on the state level would be able to usurp the authority of the Employment Retirement Income Security Act. Despite its name, ERISA primarily deals with health-plan regulation, and the law allows multistate employers to administer a companywide health plan. A survey by Miller & Chevalier and the American Benefits Council found nine out of 10 employers want to maintain ERISA's national standards rather than allow more state autonomy." (Chicago Tribune)
Amendment to Grant States the Right to Implement Single Payer Passes House Committee
Excerpt: "Today witnessed the landmark passage of the States Single Payer Amendment which would remove federal barriers to implementation of a single payer health care system at the state level. This bipartisan vote signifies the prominence of the single payer solution as the plan favored by a majority of Americans. The amendment introduced by Rep. Dennis Kucinich (D-Ohio) during the Education and Labor Committee's consideration the health reform bill -- H.R. 3200 -- passed by a bipartisan margin of 25-19. The amendment would free states from Employer Retirement Income Security Act (ERISA) regulations that have been used by insurance companies to tie down states with litigation, preventing them from implementing progressive health care solutions." (HuffingtonPost.com, Inc.)
[Opinion] Bipartisan Support for Removing Barriers to State Single-Payer Experiments
Excerpt: "Whether the country as a whole is ready for an equitable system whereby the government pays for everyone's health care costs out of tax revenue is clearly a debatable question. But many states and localities may already be. A consistent roadblock has been legal interpretations of ERISA, the Employee Retirement Security Act of 1974. ERISA governs the laws surrounding benefits offered by an employer, including health care benefits. ERISA, of course, does not require employers to provide health insurance. The fact that it does not always comes up when as the basis of legal challenges for employer mandates . . . ." (Change.org)
[Opinion] Supreme Court Justice Ginsberg Calls ERISA 'Unfair'
Excerpt: "According to the Supreme Court, since the only remedy allowed under ERISA for a wrong-coverage decision was to force the insurance company to pay the benefit it should have paid to the insured in the first place, states could not allow a plaintiff to sue for a worsening of his condition or for pain, suffering, or death caused by the insurance company's decision. In her concurring opinion, Justice Ruth Bader Ginsburg joined 'the rising judicial chorus urging Congress and the Supreme Court to revisit what is an unjust and increasingly tangled ERISA regime.' Justice Ginsburg said the problem was that the Court, through a series of decisions, had made it that virtually all state-law remedies would be preempted. She then noted that a 'series of the Court's decisions has yielded a host of situations in which persons adversely affected by ERISA-proscribed wrongdoing cannot gain?relief,' and called for the current situation to be quickly remedied." (AnAmericanDay.com)
Health Care Reform Requires Law Reform
Excerpt: "Health care financing and delivery reform seems to be under way. Reform will in all likelihood originate with Congress but may also come from the states or even the private sector. Federal law, however, limits states' options for reform, while state law constrains federal reform, and both state and federal law impede private innovation. Congressional action could facilitate state reform. Alternatively, federal preemption of state law may be necessary for federal reform. If neither Congress nor the states act, action by federal agencies could support private innovation. In any event, law reform is a necessary condition for health reform." (Health Affairs)
[Opinion] ERIC and NBGH Urge Supreme Court to Consider Petition to Overturn San Francisco Health Ordinance
Excerpt: "The ERISA Industry Committee (ERIC) and the National Business Group on Health (NBGH), Washington, D.C.-based trade associations that represent America's major employers, [on July 10, 2009,] urged the Supreme Court to grant the petition by the Golden Gate Restaurant Association asking the Court to review the decision of the Ninth Circuit Court of Appeals in the case of the Golden Gate Restaurant Association vs. City and County of San Francisco." (The ERISA Industry Committee)
[Opinion] American Benefits Council Amicus Brief to U.S. Supreme Court in GGRA v San Francisco (PDF)
25 pages. Excerpt: "The American Benefits Council . . . and the HR Policy Association . . . submit this amicus brief urging this Court to review the Ninth Circuit's decision in Golden Gate Restaurant Association v. City and County of San Francisco, et al., 546 F.3d 639 (9th Cir. 2008) . . . . The Decision held that the San Francisco Health Care Security Ordinance . . . is not preempted by the Employee Retirement Income Security Act of 1974 ('ERISA'). The Decision disregards Supreme Court precedent and conflicts with the United States Court of Appeals for the Fourth Circuit's decision on an issue of national importance." (American Benefits Council)
[Guidance Overview] First Circuit Requires Abstention Where State Proceedings Have Begun
Excerpt: "Colonial v. Medley addresses when it is appropropriate for a district court to abstain from jurisdiction over a case in which state court proceedings have been instituted on facts which leave the question of preemption in doubt. . . . The plaintiff, Cauldron, had filed a claim against a short term di[s]ability carrier and also filed a charge with the Massachusetts Commission Against Discrimination ('MCAD'). The central issue was a provision in the policy that excluded psychiatric or psychological conditions." (Roy Harmon III via Health Plan Law)
[Opinion] If the Plan Fits, You Must Acquit (Or at Least Preempt)
Excerpt: "Here's an interesting case for you. Here in the First Circuit, we have plenty of case law making clear that theories of liability that serve as alternative enforcement mechanisms to those set forth in ERISA itself are preempted. What about the circumstance where the cause of action is not necessarily an alternative enforcement method but would nonetheless require the fact finder to reference the terms of an ERISA governed employee benefit plan to determine whether or not the plaintiff's state law cause of action is viable? Is there a point at which the state law claim becomes too remote from the existence of the ERISA governed employee benefit plan for it to be preempted? " (Stephen Rosenberg of The McCormack Firm, LLC)
[Opinion] ERISA Preemption, Health Care Pay or Play, and the Supreme Court
Excerpt: "I have said it time and time again on this blog, that ERISA preemption serves the admirable, even if perhaps inadvertent, role of forcing health care to be tackled at the only level it can be adequately addressed, the federal one, and not at the level of state governments, which simply don't have the resources to pull it off . . . ." (Stephen Rosenberg of The McCormack Firm, LLC)
[Guidance Overview] Health Plan Participant's Emotional Distress Charge Preempted by ERISA
Excerpt: "The U.S. District Court for the District of New Hampshire has dismissed an employee's charge that her employer negligently inflicted emotional distress on her by long delays and not responding to her inquiries when processing her medical claims. The court pointed out that both parties agreed that Louise Polley's Harvard Pilgrim Health Care Inc. medical benefits were provided under an Employee Retirement Income Security Act (ERISA) plan. 'ERISA preempts all state laws that 'relate to' employee welfare benefit plans,' Chief Judge Steven J. McAuliffe wrote in the court opinion. He rejected Polley's argument that she was not claiming a loss of benefits, but was asserting that Harvard Pilgrim knew or should have known she was emotionally vulnerable and its handling of her claims would make her condition worse. According to the opinion, Polley sued Harvard Pilgrim in state court for negligent infliction of emotional distress." (PLANSPONSOR.com; free registration required)
[Guidance Overview] ERISA Does Not Preempt State Laws Preventing Insurers from Including Discretionary Language in Policies
Excerpt: "In American Council of Life Insurers v. Ross, case, 2009 U.S. App. LEXIS 5748,F.3d (6th Cir. 2009), the Sixth Circuit held that a Michigan law prohibiting insurers from including discretionary language in insurance policies fell within the scope of ERISA preemption 'savings clause' and was therefore enforceable. The court relied on the Supreme Court's Miller decision, which articulated a new test for determining whether a state law 'regulates insurance' and is, therefore, saved from ERISA preemption." (Passion for Subro)
Interesting Preemption Case Cites Glenn
Excerpt: "Don't miss this Sixth Circuit case--American Council of Life Insurers v. Ross [linked on target page]--holding that ERISA does not preempt a Michigan state law which prohibits insurers from including the Firestone discretionary language in insurance policies. The case is particularly noteworthy because the court cites the Glenn case in support of its decision that the state law should not be preempted . . . ." (Attorney B. Janell Grenier via Benefitsblog.com)
[Opinion] The Massachusetts Health Care Reform Act: Demonstrating that ERISA Preemption is Health Care Reform's Best Friend
Excerpt: "Well, I have argued more than once on these electronic pages that ERISA preemption, rather than being the whipping boy of choice for people who advocate state level health insurance mandates, should be understood as a key element in bringing about any type of effective change to the health insurance system. Why is that? Because ERISA preemption forbids the states from enacting health insurance reform statues since states cannot enact them without either deliberately or unavoidably rejiggering employer provided - and thus ERISA governed - health plans, meaning that any real change from the current employer provided (and voluntary) health insurance system can only take place on a national level." (Stephen Rosenberg of The McCormack Firm, LLC)
Employee Benefits Research Tips and Techniques
Excerpt: "[B. Janell Grenier has posted her] outline for a presentation given to the Louisville Employee Benefits Council on March 10th of this year." (ERISA Fiduciary Guidebook)
Comparison of ERISA Pension and State Pension Protections
Excerpt: "You asked whether any state has adopted Employees Retirement Income Security Act of 1974 (ERISA) pension fund mismanagement protections. You also asked for a comparison of the ERISA provisions that are designed to protect private-sector employees from pension plan mismanagement with state law provisions designed to protect public pension plans from mismanagement by the state treasurer." (Blogness)
Including Employer Financing in State Health Reform Initiatives: Implications of Recent Court Decisions (PDF)
12 pages. Excerpt: "In the last three years, federal courts of appeal have reached different conclusions about whether ERISA preempts employer 'pay or play' laws in Maryland and California. This Issue Brief discusses implications of these court cases for state health reform. After outlining the reasons states may want to include employers as a source of health care financing, the paper discusses ERISA's preemption principles, describes state and local laws that have imposed employer fees, and notes the key findings and conclusions from the court of appeals opinions." (State Coverage Initiatives via National Academy for State Health Policy)
White House Memo on Preemption
Excerpt: "The White House has issued a general Memo [at http://www.whitehouse.gov/the_press_office/Presidential-Memorandum-Regarding-Preemption/] to 'Heads of Executive Departments and Agencies' relating to the issue of federal preemption of state law. ERISA lawyers will want to read it and reflect on how the policy might or might not impact an already complicated and tangled ERISA preemption regime." (Attorney B. Janell Grenier via Benefitsblog.com)
[Guidance Overview] ERISA Applies to Tribal Disability Plan Covering Casino Employees
Excerpt: "EBIA Comment: We found this case interesting because there has been little comment from the courts on the difference between 'essential government functions' and 'commercial activities.' We also note that the court rejected the employee's argument that because the plan failed to file annual Form 5500s, it was not subject to ERISA." (Employee Benefits Institute of America)
House Health Subcommittee Considers Bill to Eliminate Pre-Emption for Medical Devices
Excerpt: "The House Energy and Commerce Health Subcommittee on Tuesday heard testimony on the Medical Device Safety Act of 2009 (HR 1346), which would allow consumers to sue medical device manufacturers in state courts, CQ HealthBeat reports. The bill responds to last year's Supreme Court ruling that says medical devices with FDA pre-marketing approval can be pre-empted from lawsuits under state law, in accordance with the Medical Device Amendments of 1976." (Kaiser Family Foundation)
[Guidance Overview] The Breadth of ERISA Preemption
Excerpt: "In Edward Marram as Trustee of the Geo-Centers, Inc. Profit Sharing Plan & Trust v. Kobrick Offshore Fund, Ltd. et al., 2009 Mass. Super. LEXIS 85, a state trial judge wrote extensively on ERISA preemption - something that is extremely rare.The judge stated that the Court finds that these claims for contribution are barred under the ERISA preemption provision, 29 U.S.C. ?1144(a), which supersedes 'any and all State laws insofar as they may now or hereafter relate to any employee benefit plan . . .' 29 U.S.C. ?1144(a)." (Passion for Subro)
[Guidance Overview] Health Care Provider's Equitable Estoppel Claims Dismissed As Contrary to Plan's MAC Provisions
Excerpt: "This provider reimbursement case illustrates several hazards for the health care provider that warrant careful attention. First, as always, 'verification' calls are always less valuable than they first appear. Verification of what? (Rarely will you find a verification of 'payment'). Second, the language of assurance can be complex. In this case, as the excerpt reveals, a promise to pay the 'maximum allowable charge' is far less of a commitment that it may appear. Third, estoppel will be unavailable in most cases to backstop errors - at least where plan language is clear enough (and the plan administrator will get a pass in many cases based upon a discretionary clause)." (Roy Harmon III via Health Plan Law)
ERISA Litigation Study Gives ERISA Cases Systematic Analysis
Excerpt: "How often are ERISA cases disposed of by trial? Who wins more often on summary judgment motions? What is the relative number of ERISA cases on the dockect among the federal Courts Of Appeal? These and many more interesting questions for ERISA practictioners may be found in this interesting study with the practical title 'Erisa Litigation Study'. . . . The paper provides a methodologically consistent evaluation of ERISA cases that yields considerable useful and just plain interesting information. The paper is available for download on SSRN as a part of the Working Paper Series." (Roy Harmon III via Health Plan Law)
[Guidance Overview] The Supreme Court, Suffolk Superior Court and Ed Zelinsky, All Commenting on the Breadth of ERISA Preemption
Excerpt: "Two interesting things worth passing along this week on the topic of ERISA preemption, both reinforcing its breadth. The first is this well-written analysis of preemption out of the state trial court in Massachusetts, unusual for the reason that, normally, if ERISA preemption exists, the case ends up by original or removal jurisdiction in federal court; you seldom see a state trial judge write extensively on this subject as a result. Moreover, you don't always see any judge write this well and accurately on the subject . . . ." (Stephen Rosenberg of The McCormack Firm, LLC)
[Guidance Overview] Zelinsky on ERISA 514(a) Preemption
Excerpt: "Edward Zelinsky (Cardozo) has just posted on SSRN his essay (forthcoming State Tax Notes) Golden Gate III, ERISA Preemption, and the San Francisco Health Care Security Ordinance. Here's the abstract: An exploration of the most recent decision of the U.S. Court of Appeals for the Ninth Circuit in Golden Gate Restaurant Association v. City and County of San Francisco (Golden Gate III) indicates that ERISA Section 514(a) preempts the San Francisco Health Care Security Ordinance. Two premises guide this exploration of Golden Gate III. First, employers' ongoing payments to health care administrators, such as insurance companies, constitute employee benefit 'plans' for ERISA purposes. Second, employers' contributions are central features of their employee plans." (Workplace Prof Blog)
[Guidance Overview] Citing ERISA Preemption, Sixth Circuit Dismisses State-Law Claims
Excerpt: "The Sixth Circuit rejected Lerner's [the plaintiff] arguments that his state-law claims against EDS were based not on Continental's denial of long-term disability benefits, but on EDS's alleged failure to make sure that his SDRC benefits were not diminished in the corporate transition. The Court pointed out that Lerner had specifically pled in his state-law claims that his damages included 'the loss of disability insurance benefits (monthly benefit payments, return to work benefits, and rehabilitation benefits.)' In the view of the Court, 'Lerner has thus chosen to seek payment of the disability insurance benefits themselves, not merely damages in an amount equal to those benefits.' Therefore, the Court said, 'the state-law claims against EDS for breach of contract, fraudulent misrepresentation, and innocent misrepresentation 'relate to' an ERISA benefit plan and are preempted by that federal statute.'" (The Wood Law Firm, PLLC)
ERISA Litigation Study, April 15, 2009 (PDF)
21 pages. (Pension Governance, Inc. and The Michel-Shaked Group via McGuireWoods LLP)
[Opinion] ERISA: Rock of Gibraltar or Rock in the Road to Reform?
Excerpt: "As we ponder the roadblocks to health care reform, it's hard to see around the one called ERISA. Are state reforms a viable option? What are some possible solutions to this problem? This legal issue, among others, is addressed in the Legal Solutions in Health Reform project. The study on the ERISA preemption issue examines the law's role in health reform, specifically 'what opportunities exist to facilitate health care initiatives given the constraints of ERISA preemption.'" (Wolters Kluwer)
[Guidance Overview] Draft Language Carefully for Plans Not Subject to ERISA
Excerpt: "In this situation, the plan committed itself in its own written document to complying with ERISA rules and providing ERISA rights to employees in a situation where, normally, that would not be necessary. If the plan failed to comply with ERISA rules, there would be no remedy under ERISA, but there would be a contract breach and associated relief under applicable state law." (CCH Incorporated)
[Guidance Overview] Sixth Circuit Holds that Plant-Closure Decision Did Not Interfere with ERISA-Protected Pension Rights
Excerpt: "This Sixth Circuit decision provides employers with a timely reminder during difficult economic times. [The TRW case] reminds employers considering plant closings or other discharges that where pension costs are involved that it may be fairly easy for discharged employees to establish a presumption of ERISA discrimination. Hence, during the planning stages, it is essential that an employer consider whether it will be able to produce evidence supporting a legitimate, non-discriminatory reason for the discharges." (Porter Wright Morris & Arthur LLP)
[Guidance Overview] Sixth Circuit Sustains Michigan Ban on Discretionary Clauses (PDF)
At page 8. Excerpt: "[T]here has been a wave of litigation over whether state law prohibitions against discretionary clauses in life, disability, medical and similar insurance contracts are preempted by ERISA. In general, these clauses provide insurers of ERISA plans with discretion to interpret and apply ERISA plan terms. Discretionary clauses often have been viewed as playing a significant role in containing plan costs, because they limit a court's review of claims determinations to an inquiry into whether the plan fiduciary abused its discretion. In American Cou[n]cil of Life Insurers v. Ross, 2009 WL 691062 (6th Cir. Mar. 18, 2009), the Sixth Circuit joined several earlier district courts and became the first appellate court to conclude that a state law ban on discretionary clauses was not preempted by ERISA." (Proskauer Rose LLP)
[Guidance Overview] San Francisco Employer Group Moves Forward with Appeal to Supreme Court on Health Care Statute
Excerpt: "After the 9th circuit rejected its request for rehearing, the Employer Group is finalizing plans to appeal to the Supreme Court the circuit's October 2008 ruling that upheld San Francisco's 'play or pay' statute. The statute requires employers to spend a minimum amount on health benefits for its employees, or pay a fee to the city for its use in providing health benefits - a mandate that the Employer Group claims violates ERISA's preemption clause. The Employer Group is not alone - among others, the U. S. Department of Labor filed an amicus curiae brief in support of a rehearing. __________ v. City and County of San Francisco, No. 07-17370, D.C. No. CV-06-06997-JSW (March 9, 2009)." (Deloitte via BenefitsLink.com)
Supreme Court Denies Restaurant Association's Stay Request on Mandatory Employer Health Fee
Excerpt: "The U.S. Supreme Court refused Monday to stop San Francisco from requiring employers to help pay for health coverage of the uninsured, rejecting restaurant owners' bid for an emergency stay while the court weighs a legal challenge to the groundbreaking program. The 800-member Golden Gate Restaurant Association argues that the mandatory employer fee conflicts with nationwide regulation of health benefits and will hurt businesses already battered by the economy." (San Francisco Chronicle)
[Guidance Overview] PBMs Prevail in Controversy over ERISA Preemption of Disclosure Legislation
Excerpt: "The PBM industry won a significant victory in [Pharm. Care Mgmt. Ass'n v. D.C.] which, if sustained on appeal, may serve as a vehicle for Supreme Court review of ERISA's preemptive limits on PBM disclosure legislation." (Health Plan Law)
With Pretzel Logic, Restaurant Owners Attack San Francisco Health Care Law
Excerpt: "Talk about twisted logic. A group of San Francisco restaurant owners wants the U.S. Supreme Court to block the city's pioneering health care program because it somehow threatens national health care reform. On top of that, the Golden Gate Restaurant Association cites the recently passed American Recovery and Reinvestment Act to back up its claims." (AFL-CIO)
Sixth Circuit Upholds Michigan's Discretionary Clause Ban
Excerpt: "In American Council Of Life Insurers v. Ross, No. 08-1406 (March 19, 2009), the Sixth Circuit sustained Michigan's ban on discretionary clauses against an ERISA preemption challenge, finding that the ban was within ERISA's savings clause as a permissible state regulation of insurance." (Roy Harmon III via Health Plan Law)
How Long Is Too Long in an ERISA Case?
Excerpt: "Merits of a case aside, it must be timely. What is timely under ERISA? The question can be quite troublesome." (Health Plan Law)
[Opinion] Wrongs That Can't Be Remedied: ERISA Preemption and Limited Statutory Remedies
Excerpt: "Paul Secunda, the law professor formerly known as the workplace prof, has a new law review article out on the 'wrong without a remedy' aspect of ERISA litigation, which is the fact that the broad scope of preemption can combine with the limited range of remedies available under ERISA in a way that makes some alleged wrongs involving employee benefit plans simply not redressable. Notice that unlike many commentators, including Paul in his article, I call it an aspect of ERISA litigation, rather than a problem, as, contrary to Paul's article, I am not convinced this isn't the logical outcome, rather than the problematic distortion, of the original statutory structure. Either way, there is certainly room to argue over whether, and if so what, should be done about this aspect, and Paul provides his own version of changes that could be enacted legislatively or by judicial development to eliminate the 'wrong without a remedy' scenario." (Stephen Rosenberg of The McCormack Firm, LLC)
[Opinion] Secunda on [No] ERISA Remedies
Excerpt: "Paul Secunda (Marquette) has just posted on SSRN his article (forthcoming Hofstra LELJ) Sorry, No Remedy: Intersectionality and the Grand Irony of ERISA. Here's the abstract: Congress enacted the Employee Retiree Income Security Act of 1974 (ERISA or Act) to protect employees' retirement and welfare benefits. Nevertheless, the Act has been interpreted by the U.S Supreme Court over the years to be in essence an Employers' Security Act, with employers using ERISA to shield themselves against employee benefit-related claims." (Workplace Prof Blog)
Presentation Handout: ERISA Litigation: An Update from the Front Lines (PDF)
20 pages. Presented to the ASPPA Benefits Council of New England. (Stephen Rosenberg of The McCormack Firm, LLC)
[Opinion] Simple, State-Law Tort Suit Over Car Wreck Turned Into Federal Preemption Case Revolving Around the Unfathomable Morass Called ERISA
Excerpt: "The year of the West Virginia Supreme Court of Appeals has ended with a series (seven, by my count) of dissents and one reluctant concurrence from Justice Starcher. In a case involving a hospital's subrogation claim: 'I dissent because, in my 12 years on the appellate bench, I have too often seen arcane procedural decisions like this one flow forth from this Court. These decisions brilliantly and eloquently describe the trees, while failing to recognize the surrounding forest. These kinds of decisions may be technically correct, but they wholly miss the public policy waves that will ripple from the Court's decision...'" (Legal Profession Blog)
[Opinion] Of Ironies, ERISA & Reform: ERISA's Uncertain Future
Excerpt: "Professor Gerry W. Beyer (Wills, Trusts & Estates Prof Blog) recently posted a note about Paul Secunda's article, Sorry, No Remedy: The Grand Irony of ERISA, which is an article I have looked forward to reading. Evidently only the abstract is available on SSRN at present, but I'll update this post if I find out otherwise. Judging by the abstract, the article may be understood syllogistically as follows [on the target page]." (Health Plan Law blog by Attorney Roy F. Harmon III)
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