tag:blogger.com,1999:blog-694967215978644381.post213971036177870725..comments2023-10-28T02:14:23.579-07:00Comments on The Problem is ERISA: The Problem, reduxRichhttp://www.blogger.com/profile/12169789652349221427noreply@blogger.comBlogger3125tag:blogger.com,1999:blog-694967215978644381.post-56700067203995459682011-01-21T11:41:04.314-08:002011-01-21T11:41:04.314-08:00You know I think I just conflated remedies with de...You know I think I just conflated remedies with de novo analysis. Never mind; I will have to get back to you on that.<br /><br />But we still need compensatory damages to be available, at the very least, before any insurer will have any real incentive to act properly. You're correct the reversal of that single rule would take care of that problem. So how do we reverse that single rule?Richhttps://www.blogger.com/profile/12169789652349221427noreply@blogger.comtag:blogger.com,1999:blog-694967215978644381.post-25144934409209877242011-01-21T11:38:08.769-08:002011-01-21T11:38:08.769-08:00Well, I tried to respond and the thing disappeared...Well, I tried to respond and the thing disappeared into the ether. I'll try again.<br /><br />Thanks for your comment. You are quite correct, I think, that many of the complex issues at play are beyond the scope of this little blog and certainly my limited intellect.<br /><br />OTOH promises made in return for someone's labor ought to be enforced by the courts. That's really the point of all this. <br /><br />First, HCR does nothing to impact disability, AD&D, or life insurance, or any other employee benefit besides health coverage.<br /><br />Second, it is far from clear that HCR will require de novo judicial analysis. Last time I looked at it I came away thinking state law remedies would be availble for Exchange-purchased coverage, even if there's an employer subsidy, but for employment-based coverage as defined in the act (which is pretty much the typical ERISa insurance plan most people have now) preemption of state law remedies continues. there's a discussion here about all that:<br /><br />http://oneillhealthreform.wordpress.com/2009/11/15/erisa-preemption-redux/<br /><br />In any case that question will not be resolved without some fun litigation.<br /><br />Finally, I quibble with the notion that Congress intended ERISA to gut state law remedies against insurance companies; that came from the judiciary. Pilot Life and its evil spawn. Congress, when it enacted ERISA, included the saving clause to exempt state law regulating insurance from preemption, and it also carved insurance policies out from the requirements that plan assets be held in trust. I think Congress figured the status quo ante re insurance regulation was fine the way it was. That is also supported by much of the commentary in the legislative history. <br /><br />Thank you again for your comment.Richhttps://www.blogger.com/profile/12169789652349221427noreply@blogger.comtag:blogger.com,1999:blog-694967215978644381.post-27779956026742380592011-01-04T07:49:45.767-08:002011-01-04T07:49:45.767-08:00The jist of your argument is rooted in the insuran...The jist of your argument is rooted in the insurance industry lobbying for and receiving an "exclusion from compensatory damages" in the passing of ERISA in 1974. The reversal of this single rule corrects the bulk of what you argue.<br /><br />PPACA, Public Law 111-148, places all review on a "De Novo" basis and thus, cures the second part of your argument.<br /><br />Finally, you are encouraging an old deception by the simple phrase "insurance". ERISA flushes out the legal fiduciary of the promise to pay for bills promised as part of the compensation package in employment. In fact, over three quarters of all so called "health insurance", right now, is actually "self insurance" where the employer is covering ALL of the cost and the "insurer" (Blue, Aetna, etc) is just the TPA clearing the paperwork and giving the employee a recognizable card to carry around. This shift has occurred as encouraged by the insurance industry where they continued to receive roughly 25% of every health dollar spent in "administrative" fees while shifting all of the real risk back to the employer. 25% margin, like before, now with no risk.<br /><br />I am afraid that your ‘blog’ will be an inadequate space for this multifaceted, complex set of issues.FScotthttps://www.blogger.com/profile/03455541357897131064noreply@blogger.com