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A Pivotal Moment in the Fight for Behavioral Health Equity

"[1] Basics of health insurance and ERISA.... [2] Inadequate access to behavioral health services and reimbursement.... [3] A push for mental health parity.... [4] Key changes in the Parity Act regulations.... [5] Case highlights: fighting for behavioral health rights.... [6] How providers and patients can combat improper denials of benefits."

ACA Preventive Care Coverage Requirements Remain Intact

"This post summarizes the ACA's preventive health services requirements, the Braidwood decision striking certain of them down and preventing their enforcement, the agencies' post-Braidwood FAQ guidance, the Fifth Circuit's temporary stay of the Braidwood ruling, and implications for patients, providers, and insurers." [Braidwood Management, Inc. v. Becerra, No. 20-0283 (N.D. Tex. Mar. 30, 2023); No. 23-10326 (5th Cir. motion for stay granted May 15, 2023]

Nevada Jury Finds Against United Healthcare's Efforts to Underpay for Emergency Medical Services and Generate Profit for Itself

"Plaintiff's central allegation was that United Healthcare, the nation's largest health insurer and plan administrator, engaged in a multi-pronged scheme to dramatically reduce emergency reimbursement rates and artificially generate profits for itself. The case offers a revealing window into the 'black box' process by which reimbursement rates are set and the enormous power of United Healthcare." [Fremont Emergency Services (Mandavia) vs. UnitedHealth Group, Inc., No. A-19-792978-B (Clark Co., NV)]

Making Mental Health Parity a Reality: The Challenge Continues

"Despite the Parity Act, insurance providers across the county too often still discriminate against those suffering from mental health conditions. That discrimination takes many forms."

Jones Day Moves to Dismiss Claims by Supreme Court Clerks, Arguing that Parental Leave Policy Did Not Discriminate

"Jones Day and the plaintiffs fundamentally disagree as to whether, as Jones Day contends, the policy is based on a 'presumption' -- birth mothers are disabled for 8 weeks without having to prove it -- or, as the plaintiffs contend, it is a 'substantive rule' under which birth mothers get 8 weeks of additional leave, and fathers do not." [Savignac v. Jones Day, No. 19-2443 (D.D.C., complaint filed Aug. 13, 2019; reply in support of motion to dismiss, Oct. 17, 2019)]

Married Attorneys Sue Law Firm Over Parental Leave Policy

"[T]hey allege that Jones Day discriminates by giving biological mothers 'eight more weeks' of parental leave. The couple claims that although Jones Day 'labels' the additional eight weeks 'disability leave,' biological mothers are not actually required to establish a disability to obtain the leave. According to their complaint, there is 'no legitimate basis' for 'giving sex-based disability leave to employees who are not disabled.' " [Savignac and Sheketoff v. Jones Day, No. 19-2443 (D.D.C., complaint filed Aug. 13, 2019)]

Bakery Says Employee's FMLA Claims Don't 'Rise' to the Occasion

"Gold Medal is not moving for judgment on Thompson's claims that it violated the Americans with Disabilities Act (ADA) by terminating him after twelve weeks of leave.... [B]ecause of the ADA, an employer can't just rely on a policy that when FMLA leave is exhausted, it can terminate a potentially disabled employee with impunity -- no matter how justified that policy may be under the FMLA." [Thompson v. Gold Medal Bakery, Inc., No. 18-10410 (D. Mass. motion for judgment filed Oct. 4, 2018)]

'Change of Control' Severance Plan Isn't Governed by ERISA, Court Rules

"To decide whether ERISA applied, the court looked to whether the Executive Retention Plan involved an 'ongoing administrative program,' and concluded that it did not. First, the court concluded that the plan did not require managerial discretion as to amount of severance, timing of payouts, or the form of severance. Moreover, most of the factors supporting a 'Good Reason' separation did not involve any discretionary determination. Second, an employee wouldn't see the plan as involving an ongoing commitment to provide benefits -- only one severance payout was involved, and the plan only came into play for a two-year period. Third, the plan didn't have the usual earmarks of an ERISA plan, such as a plan administrator, fiduciary, administrative review, or procedure to submit claims. Fourth, the plan was not a pension plan because it was not contingent on retirement and did not involve deferred income." [Hall v. LSREF4 Lighthouse Corporate Acquisitions, LLC, No. 16-6461 (W.D.N.Y. Nov. 10, 2016)]

Hold on to Your (Top) Hat: ERISA Section 502(a)(3) May Be Used to Enforce the Terms of a 'Top-Hat' Benefits Plan

"The court acknowledged that ERISA exempted the administrator of a top-hat plan from certain fiduciary duties, and the higher standard of care typically imposed on an ERISA fiduciary. However, agreeing with the decisions in other cases, the court found those exemptions did not immunize the top-hat plan administrator from all equitable remedies. Rather, 'equitable remedies ... are available for a breach of the general good faith standard of contract law by the plan administrator' of a top-hat plan." [Buster v. Compensation Comm. of the Bd. of Directors of Mechanics Bank, No. 16-01146 (N.D. Cal. Aug. 26, 2016)]

Will Fiduciary Liability Insurance Cover Severance Agreement Payments If the Company Can't Make Them?

"[The insurer] contends that even if [the employee]'s severance agreement was a 'Sponsored Plan' under the policy, there wasn't a 'Wrongful Act' -- again, an accident or negligence -- on [the firm]'s part: [when it decided to liquidate,] the firm simply chose not to continue making payments it had agreed to make.... Much will depend on the exact policy language here, and how it addresses severance agreements -- if it does at all. Even outside of the insurance field, whether a severance agreement is a 'plan' under ERISA is often in dispute.... [T]he Supreme Court tried to provide some clarity [in one case] by holding that a one-time severance payment after a plant closure was not a plan under ERISA because it didn't have an ongoing administrative component -- but it's not at all clear if that's the only test for a covered plan."