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ERISA Preemption and State Bans on Discretionary Clauses
DeBofsky & Associates, PCLink to more items from this source
Sept. 18, 2015

"Following the promulgation of a model law by the National Association of Insurance Commissioners that bans the inclusion of so-called discretionary clauses in health and disability insurance policies, several states have issued laws or regulations adopting the NAIC's model law.... The reason discretionary clauses have been singled out for attention is because of a 1989 Supreme Court ruling, Firestone Tire & Rubber Co. v. Bruch ... The Supreme Court held in Firestone that the typical judicial review standard applied in adjudicating ERISA cases is the de novo standard, which requires the court to independently adjudicate whether the benefit claimant is entitled to the benefits sought."

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