Headlines about "ERISA preemption of state law"
Gathered from the web by the editors at BenefitsLink.com.
[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)
[Guidance Overview] ERISA Litigation Chapter - 2007 Annual Review of Developments in Business and Corporate Litigation (PDF)
65 pages. (Jones Day)
Employer Mandates and ERISA Preemption: A Critique of Golden Gate Restaurant Association v. San Francisco
Excerpt: "The Ninth Circuit's recent decision in Golden Gate Restaurant Association v. San Francisco saves the employer mandate of the San Francisco ordinance from ERISA preemption by slighting the language of the statute and by misapplying the U.S. Supreme Court's existing case law under ERISA Section 514(a). If (as is likely) the Supreme Court rules upon the ERISA status of employer mandates like San Francisco's by adhering to its past decisions, the Court will strike such mandates as ERISA-preempted. Under current law, the Ninth Circuit's opinion in Golden Gate II is not sustainable." (Social Science Research Network)
New Scholarship on ERISA Preemption of San Francisco's Health Ordinance
Excerpt: "Edward A. Zelinsky, Benjamin N. Cardozo School of Law, comments on the Ninth Circuit's recent decision sustaining the San Francisco health ordinance under an ERISA preemption challenge. The paper is entitled 'Employer Mandates and ERISA Preemption: A Critique of Golden Gate Restaurant Association v. San Francisco'. . . . The paper is available on SSRN." (Health Plan Law blog by Attorney Roy F. Harmon III)
[Opinion] DOL Amicus Brief in GGRA v. City and County of San Francisco (PDF)
27 pages. (U.S. Department of Labor via American Benefits Council)
[Opinion] ERIC & NBGH File Joint Amicus Brief Supporting Full Ninth Circuit Court of Appeals Review of San Francisco Employer 'Play-or-Pay' Ordinance (PDF)
22 pages. Excerpt: "This past Friday, October 31, 2008, The ERISA Industry Committee (ERIC) and the National Business Group on Health (NBGH) -- two organizations representing large, national employers providing health benefits to tens of millions of Americans -- filed an amicus brief supporting the Golden Gate Restaurant Association's call for a full Ninth Circuit Court of Appeals review of the city of San Francisco's controversial play or pay ordinance on employers." (The ERISA Industry Committee/National Business Group on Health)
[Opinion] American Benefits Council Amicus Brief in Golden Gate Restaurant Association v. City and County of San Francisco (PDF)
24 pages. Excerpt: "This case is of significant nation-wide importance to employer-sponsors of health benefits plans and their employees. Council members offer some of the Nation's most generous and well-managed health benefit plans, virtually all of which cover employees that reside in many states, counties, and cities. These multi-state plans are complex undertakings. If the Ordinance and other similar 'pay-or-play' laws are allowed, it will create a 'regulatory balkanization' that would strike at the heart of the purpose of ERISA preemption, which is to encourage employers to establish comprehensive health plans for their employees without regard to the particular state or locality in which they live." (American Benefits Council)
[Guidance Overview] Discovery Responses Did Not Support Removal and ERISA Preemption in State Law Wrongful Discharge Case
Excerpt: "Plaintiffs walk a fine line when asserting claims under the ADA and state wrongful discharge laws. This recent district court opinion exemplifies a successful avoidance of ERISA preemption, but not without the trouble of removal and remand. The problem lies in the natural consequence of termination. Aside from loss of wages and compensation benefits, the plaitntiff will lose participation in employee benefit plans." (Attorney Roy F. Harmon III on Health Plan Law Blog)
Full Text of Appeal to Full Ninth Circuit Over San Francisco Employer Healthcare Spending Mandate
28 pages. Excerpt: "An employer group has appealed to the full Ninth US Circuit Court of Appeals a Sept. 30 decision by a three-judge panel that ERISA doesn't pre-empt San Francisco's health care mandate. . . . The panel's decision overturned a lower court's finding that ERISA does preempt the mandate. The appeal marks the next step toward the US Supreme Court possibly reviewing whether ERISA bars states and localities from imposing employer play-or-pay health care mandates." (Golden Gate Restaurant Association via Mercer LLC)
[Opinion] Wooten and ERISA Preemption: When History and Current Desires Collide
Excerpt: "Quite simply, rulings and arguments by commentators that ERISA preemption should be read more narrowly than has been the case, and concomitant decisions like the Ninth Circuit ruling on the San Francisco act, may be understandable as an argument for or exercise in some sort of normative cum Dworkian cum Judge Hercules decision making, where the courts are to bring an aging statute into compliance with current circumstances, but they certainly cannot be justified as an accurate interpretation of congressional intent itself." (Stephen Rosenberg of The McCormack Firm, LLC)
[Guidance Overview] Sixth Circuit Rejects Reverse Preemption Argument
Excerpt: "Brown v. Cassens, 2008 U.S. App. LEXIS 21990, *; 2008 FED App. 0385P (6th Cir.), (October 23, 2008) might not first appear as a likely choice for this board's case review, but it actually is quite pertinent. At the outset, note that the preemption under discussion here is not ERISA preemption, but preemption under the McCarran-Ferguson Act. One of the key issues before the Sixth Circuit in Cassens was whether the McCarran-Ferguson Act, 15U.S.C. § 1012 'reverse preempted' the plaintiffs' RICO claims." (ERISABoard.com)
[Guidance Overview] Ninth Circuit Finds San Francisco's Employer Spending Requirement Not Preempted by ERISA (PDF)
3 pages. Excerpt: "On September 30, 2008, the U.S. Court of Appeals for the Ninth Circuit ruled that ERISA does not preempt the employer spending requirement of the San Francisco Health Care Security Ordinance. (Golden Gate Rest. Ass'n v. City & County of San Francisco, No. 07-17370, slip op. (9th Cir. Sept. 30, 2008).) . . . . Golden Gate is a result-driven opinion that demonstrates the ever-increasing need for federal health care reform. The Ninth Circuit's protests notwithstanding, the decision effectively creates a split with the Fourth Circuit's Fielder decision as to whether state health care laws imposing pay or play requirements on employers are preempted by ERISA." (Thompson Hine LLP)
[Guidance Overview] Ninth Circuit Upholds San Francisco Health Care Ordinance Against ERISA Preemption Challenge
Excerpt: "The Ninth Circuit rejected all of the ERISA preemption arguments. The court concluded that the ordinance does not require employers to establish their own ERISA plans or to make any changes to any existing ERISA plans. While employers may want to set up ERISA plans or to modify existing plans to comply with the ordinance, they need not do so. Instead, they may select the City-payment option that allows employers to make payments directly to the City." (Thelen LLP)
A Legislative and Political History of ERISA Preemption, Part 3
Excerpt: "The preemption language in section 514(a) of the Employee Retirement Income Security Act of 1974 (ERISA) is exceedingly broad. The preemption language in the law ERISA replaced - the Welfare and Pension Plans Disclosure Act of 1958 (WPPDA) - was exceedingly narrow. There were four stages in Congress's journey from the narrowly circumscribed preemption of state law under the WPPDA to the sweeping suppression of state law under ERISA. This article covers the first three stages, tracing the evolution of ERISA's preemption language from the enactment of the WPPDA to the end of the Ninety-Second Congress." (Journal of Pension Benefits via Social Science Research Network)
[Opinion] Supreme Court Has Already Ruled on State Employer Mandates. They're Illegal.
Excerpt: "I swapped e-mails with [the nation's leading health law expert, University of New Mexico law professor Robert L. Schwartz, B.A. Stanford, J.D. Harvard] about ERISA last year. To recycle what I wrote then, here's what he had to say about the [Supreme] Court, ERISA and state employer mandates. There isn't a Supreme Court 'opinion' on the merits -- but you are absolutely right when you point out that there is a Supreme Court 'decision' on the merits." (San Diego Union-Tribune)
[Guidance Overview] Outline of Ninth Circuit's Decision Allowing San Francisco 'Pay-or-Play' Healthcare Law (PDF)
3 pages. Excerpt: "As states and municipalities increasingly look for creative solutions to the increasing cost of health care for the under- and un-insured, 'pay or play' mandates continue to grow in popularity. The resulting impact on employers is substantial. Employers that operate in multiple states find themselves subject to conflicting state and city statutes that require them to pay varying amounts for employee benefits and/or penalties to the state or city government. Similarly, plan administrators are subjected to different state reporting requirements, creating confusion within the plan's recordkeeping procedures." (Proskauer Rose LLP)
[Guidance Overview] Mandatory Contribution to Health Benefits — A New Circuit Split on ERISA Preemption? (PDF)
5 pages. Excerpt: "[In Golden Gate Restaurant Assoc. v. City and County of San Francisco] Plaintiff and the Secretary of Labor as amicus made two central preemption arguments. First, they argued that the city-payment option creates an ERISA plan. Second, they argued that even if the city-payment option does not establish an ERISA plan, an employer's obligation to make payments at a certain level 'relates to' the ERISA plans of covered employers and is thus preempted. The Ninth Circuit rejected both arguments." (Alston & Bird LLP)
[Guidance Overview] ERISA Does Not Preempt San Francisco's Fair Share Law, According to Court
Excerpt: "EBIA Comment: Interestingly, the Ninth Circuit saw no inconsistency between its holding and that of the Fourth Circuit in Fielder, and it concluded that its decision does not create a circuit split. Explaining that it neither adopts nor rejects the analysis in Fielder, the three-judge panel of the Ninth Circuit distinguished the San Francisco law, noting that it offers employers a 'meaningful alternative' to establishing or altering ERISA plans (i.e., employers can choose the City-payment option and its employees will be eligible for free or discounted enrollment in the City-administered, non-ERISA health care program)." (Employee Benefits Institute of America)
[Guidance Overview] Appeals Court Upholds San Francisco's Mandatory Health Care Ordinance: Why You Should Care
Excerpt: "A federal appeals court has upheld a San Francisco ordinance that requires certain San Francisco employers to make minimum health care expenditures for their employees. But even if your business or organization operates far from San Francisco, the court's opinion should be a cause for concern." (Nixon Peabody LLP)
[Opinion] Pay or Play Acts, the Ninth Circuit, and the Never Ending Law of Unintended Consequences
Excerpt: "Among the most prominent decisions issued while I was in court was, obviously, the Ninth Circuit's ruling finding that San Francisco's pay or play law was not preempted by ERISA. Can't say I buy that one. Whatever is the scope of preemption in the field of ERISA, it logically reaches state efforts that result in a multi-jurisdictional company having to comply, with regards to its employee benefit plans, with a differing web of regulation that varies from one state to the next. Of more interest, perhaps, is the wide ranging group of consequences, some predictable and others unintended, that the Ninth Circuit ruling likely unleashes." (Stephen Rosenberg of The McCormack Firm, LLC)
9th Circuit Court Ruling Ignores Clear Intent of ERISA
Excerpt: "A 9TH U.S. CIRCUIT COURT of Appeals decision last week that San Francisco's health care spending law is not pre-empted by the Employee Retirement Income Security Act is another example of how the court got its reputation of being the most overturned of the nation's appeals courts. ERISA's language is direct: It says that ERISA pre-empts state and local laws and rules that relate to employee benefit plans." (Business Insurance)
[Guidance Overview] Ninth Circuit Holds ERISA Does Not Preempt San Francisco Health Care Security Ordinance (PDF)
2 pages. Excerpt: "The panel's ruling means that the Ordinance will continue in full affect unless the panel's decision is overturned. The plaintiff, Golden Gate Restaurant Association ('GGRA'), has ten days to request an en banc review of the case. An en banc review means that eleven (11) judges from the Ninth Circuit would review the panel's decision. Even if GGRA requests en banc review, the Ninth Circuit may not grant that request. GGRA may also request review from the Supreme Court of the United States, which also may reject the request. GGRA may choose to seek Supreme Court review regardless of whether it seeks en banc review from the Ninth Circuit." (Groom Law Group)
[Guidance Overview] Ninth Circuit Rules ERISA Does Not Preempt San Francisco Health Care Ordinance
Excerpt: "In Golden Gate Restaurant Association v. City and County of San Francisco, the U.S. Court of Appeals for the Ninth Circuit upheld the employer spending requirements of a San Francisco ordinance, ruling that the requirements are not preempted by ERISA. Golden Gate is at odds with a 2007 Fourth Circuit decision which held that the Maryland Fair Share Health Care Fund Act was preempted by ERISA, creating a split that the U.S. Supreme Court could address." (Ballard Spahr Andrews & Ingersoll, LLP)
[Guidance Overview] Issue Exhaustion and ERISA
Excerpt: "Sticking with my theme of ERISA today, the Ninth Circuit has a decision of first impression concerning issue exhaustion and ERISA in the denial of benefits context. In Vaught v. Scottsdale Healthcare (9th Cir 09/29/2008), the Ninth Circuit declined to impose an 'issue exhaustion' requirement under ERISA." (Workplace Prof Blog)
[Opinion] Ninth Circuit Decides - San Francisco Health Care Law Not ERISA Preempted
Excerpt: "Over the years following this issue, I have reluctantly agreed with the findings of ERISA preemption against these types of laws (see here for an example). However, I am now persuaded that the Ninth Circuit's ruling is consistent with the Travelers precedent from 1995 that unless a law is historically a matter of local concern, there should be a presumption against finding ERISA preemption. It seems to me that courts have read ERISA incorrectly in this regard in past cases." (Paul M. Secunda viz Marquette University Law School Faculty Blog)
ERISA, the States, and the Candidates' Health Reform Proposals
Excerpt: "No vitally important employee benefits issue is as hidden in the presidential candidates' health reform proposals as is ERISA preemption. However, the proposals from Sens. John McCain (Ariz.) and Barack Obama (Ill.) will dramatically affect how employer-provided health care benefits operate in relation to ERISA." (Wolters Kluwer)
[Opinion] 9th Circuit Holds San Francisco Ordinance Not Preempted: Is There a Conflict in the Circuits?
Excerpt: "For most of the decision, the unanimous three-judge panel methodically describes and then disposes of all the arguments made by the [Golden Gate Restaurant Association] and its numerous amici (including the Department of Labor) in favor of preemption. The opinion is written as if the court is perfectly aware that its decision is likely to wind up on the steps of the Supreme Court . . . ." (Pension & Benefits Blog)
[Guidance Overview] San Francisco Health Care Security Ordinance Not Preempted by ERISA
Excerpt: "In the Golden Gate case, the district court had enjoined the employer spending requirements of the San Francisco Health Care Security Ordinance, holding that ERISA preempted the spending requirement. The Ordinance requires all covered employers to make a certain level of health care expenditures on behalf of their covered employees. However, the Ninth Circuit reversed, holding that the Ordinance is not preempted by ERISA." (Attorney B. Janell Grenier via Benefitsblog.com)
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