Monday, December 20, 2010
Holiday break
As you can see from a quick look at this blog, I have taken the month of December off from blogging. A confluence of circumstances, and holiday madness, have taken all of my time and then some. After the new year we'll pick up again exploring the many, many ways in which ERISA ruins lives.
Monday, November 29, 2010
Fourth and long: ERISA beats the spread against NFL players too
Brent Boyd is a former professional football player. Big tough guy.
In a 1980 pre-season game Mr. Boyd took a serious hit and suffered a concussion. It ended his career and continues to have a very big and bad impact on his life.
Fortunately for Mr. Boyd, the NFL Players Association, when they struck their Collective Bargaining Agreement with the NFL, included a disability plan so that players who became disabled would have some protection against the resulting loss of income.
That hasn’t worked out so well:
Mr. Boyd, however, figured he had legal rights, and he went to court to recover his wrongfully-denied disability benefits.
Whereupon he ran into the legal equivalent of the Fearsome Foursome, the Purple People Eaters, and the Steel Curtain all rolled into one: ERISA.
First, the Ninth Circuit observed that, since under ERISA we pretend insurance companies and plan administrators are Oliver Wendell Holmes, and that their motives are pure and pristine, we treat their decisions as if they were edicts from an Oracle on high:
In fact, as the Ninth Circuit added later in the same opinion, denial decisions under ERISA are so bulletproof that “even decisions directly contrary to evidence in the record do not necessarily amount to an abuse of discretion."
The outcome of Mr. Boyd’s suit for disability benefits was as preordained as if the Green Bay Packers were going to play my woefully bad high school football team: “The Retirement Board did not abuse its discretion in concluding that Boyd's disability did not arise from his League football activities.”
In a 1980 pre-season game Mr. Boyd took a serious hit and suffered a concussion. It ended his career and continues to have a very big and bad impact on his life.
Fortunately for Mr. Boyd, the NFL Players Association, when they struck their Collective Bargaining Agreement with the NFL, included a disability plan so that players who became disabled would have some protection against the resulting loss of income.
That hasn’t worked out so well:
Former NFL player Ben Lynch, who once played for the Cal Golden Bears, said he has also been disabled by recurrent head trauma and added that the NFL also did not cover his care.
"When you're playing football, the union tells you there is a safety net waiting to catch you if you fall," Lynch said. "It's not until you smack the ground that you realize that the safety net they told you about doesn't exist."
Mr. Boyd, however, figured he had legal rights, and he went to court to recover his wrongfully-denied disability benefits.
Whereupon he ran into the legal equivalent of the Fearsome Foursome, the Purple People Eaters, and the Steel Curtain all rolled into one: ERISA.
First, the Ninth Circuit observed that, since under ERISA we pretend insurance companies and plan administrators are Oliver Wendell Holmes, and that their motives are pure and pristine, we treat their decisions as if they were edicts from an Oracle on high:
The NFL Plan was established pursuant to collective bargaining and grants to the Retirement Board the full discretion to adjudicate claims and interpret the Plan. We review the Board's decision to deny Boyd's football degenerative disability benefits for an abuse of discretion.
In fact, as the Ninth Circuit added later in the same opinion, denial decisions under ERISA are so bulletproof that “even decisions directly contrary to evidence in the record do not necessarily amount to an abuse of discretion."
The outcome of Mr. Boyd’s suit for disability benefits was as preordained as if the Green Bay Packers were going to play my woefully bad high school football team: “The Retirement Board did not abuse its discretion in concluding that Boyd's disability did not arise from his League football activities.”
Friday, November 5, 2010
The Problem, redux
Around the first day of each month I'll be posting a reprise of the first post on this blog, which contains an overview of the Problem. It'll be updated and edited as we go along. But I'd like to have a summary of the Problem available frequently, hence the monthly repeat and update. So off we go...
ERISA is the Employee Retirement Income Security Act, and it is codified in Title 29 of the United States Code, starting with section 1001. It's federal law, enacted in 1974, and it was supposed to protect employees' rights in connection with their pension plans and benefit plans (health, disability, life insurance, that sort of thing). But it doesn't. Quite the contrary.
This blog is dedicated to the ERISA problem.
What is that problem? It mainly concerns those benefit plans (ERISA is actually not a bad law with respect to pension plans). Pension plans is what they had in mind when they enacted it -- benefit plans were an afterthought.
And it shows. If your insurance company wrongfully denies your claim, you might figure you can always take them to court. You can do that (usually), but when you get there you'll find things don't make any sense. We'll go into the particulars soon, but for now:
If you get your insurance coverage through your employment, then in virtually every case ERISA preempts state law (meaning it cancels it out, eradicates it, takes its place). But, having gutted state law relating to insurance disputes, it fails to provide any reasonable substitute. The remedies it provides (i.e. what you get if you win a lawsuit) are very, very stingy. And ERISA severely compromises your ability to secure even the scant remedies it does provide.
1. Remedies. ERISA limits the recovery you might get to the benefits which should have been provided in the first place, and an award on account of attorney fees in the court’s discretion. Example: you have your disability benefits wrongfully denied. As a result, you have no income, your credit rating is trashed, you lose your home and you are driven into bankruptcy. You file your ERISA suit and against the odds, you win. What do you get? The benefits they should have been paying you back when it might have done you some good. That's all (you might -- might -- get something on account of your attorney fees too).
The trashed credit, the lost home, the bankruptcy, the ruined life? Bupkis. ERISA does not allow for any recovery on account of these sorts of consequential damages -- none. And this applies even if the insurance company committed outright fraud when it denied your claim. Incidentally, I find it quite difficult to understand why the insurance industry, uniquely among all industries in America, needs to have immunity from liability for fraud if it is to offer its services at a reasonable price. Anyway, this concern goes beyond making people whole; it also directly impacts the behavior of insurance companies.
As of now we have a situation where the law tells insurers they face no meaningful consequences if they deny care improperly or even commit outright fraud. As one federal judge has commented, "if an HMO wrongly denies a participant's claim even in bad faith, the greatest cost it could face is being compelled to cover the procedure, the very cost it would have faced had it acted in good faith. Any rational HMO will recognize that if it acts in good faith, it will pay for far more procedures than if it acts otherwise, and punitive damages, which might otherwise guard against such profiteering, are no obstacle at all." Insurance companies, of course, are not charities, but corporations; their boards are subject to a fiduciary duty to maximize shareholder value. If it is possible to accomplish this by mistreating insureds, then it follows insurers will do precisely that (and believe me, they do).
2. Procedure. In ERISA litigation, courts have determined among other things that there is no right to a jury; that discovery (the pre-trial process where you obtain the other side's documents, take depositions and such) is to be significantly abridged; that the evidence which may be introduced at trial is limited to that which the insurer deigned to assemble during its claims evaluation process; and that, when the policy contains language vesting "discretion" in the insurer, if you prove the insurance company was wrong -- you lose. In order to win, you must prove the denial was "arbitrary and capricious" -- that is to say, ridiculous, absurd, unintelligible, crazy. And lo and behold, the insurance companies grant themselves "discretion" when they write their policies. In this way we treat insurance companies as if they were federal judges. But Learned Hand they are not.
These days we're all debating health care reform and what to do about the uninsured. ERISA matters a lot here, because if you get your insurance through your employment, then consider yourself to be in that group. If by "insurance" you mean something like an enforceable promise by an insurance company that it will pay for what it says it will, what you have doesn't qualify. What you have is a piece of paper saying some company will pay your claim if it feels like it. You don't have insurance at all -- you only think you do.
ERISA is the Employee Retirement Income Security Act, and it is codified in Title 29 of the United States Code, starting with section 1001. It's federal law, enacted in 1974, and it was supposed to protect employees' rights in connection with their pension plans and benefit plans (health, disability, life insurance, that sort of thing). But it doesn't. Quite the contrary.
This blog is dedicated to the ERISA problem.
What is that problem? It mainly concerns those benefit plans (ERISA is actually not a bad law with respect to pension plans). Pension plans is what they had in mind when they enacted it -- benefit plans were an afterthought.
And it shows. If your insurance company wrongfully denies your claim, you might figure you can always take them to court. You can do that (usually), but when you get there you'll find things don't make any sense. We'll go into the particulars soon, but for now:
If you get your insurance coverage through your employment, then in virtually every case ERISA preempts state law (meaning it cancels it out, eradicates it, takes its place). But, having gutted state law relating to insurance disputes, it fails to provide any reasonable substitute. The remedies it provides (i.e. what you get if you win a lawsuit) are very, very stingy. And ERISA severely compromises your ability to secure even the scant remedies it does provide.
1. Remedies. ERISA limits the recovery you might get to the benefits which should have been provided in the first place, and an award on account of attorney fees in the court’s discretion. Example: you have your disability benefits wrongfully denied. As a result, you have no income, your credit rating is trashed, you lose your home and you are driven into bankruptcy. You file your ERISA suit and against the odds, you win. What do you get? The benefits they should have been paying you back when it might have done you some good. That's all (you might -- might -- get something on account of your attorney fees too).
The trashed credit, the lost home, the bankruptcy, the ruined life? Bupkis. ERISA does not allow for any recovery on account of these sorts of consequential damages -- none. And this applies even if the insurance company committed outright fraud when it denied your claim. Incidentally, I find it quite difficult to understand why the insurance industry, uniquely among all industries in America, needs to have immunity from liability for fraud if it is to offer its services at a reasonable price. Anyway, this concern goes beyond making people whole; it also directly impacts the behavior of insurance companies.
As of now we have a situation where the law tells insurers they face no meaningful consequences if they deny care improperly or even commit outright fraud. As one federal judge has commented, "if an HMO wrongly denies a participant's claim even in bad faith, the greatest cost it could face is being compelled to cover the procedure, the very cost it would have faced had it acted in good faith. Any rational HMO will recognize that if it acts in good faith, it will pay for far more procedures than if it acts otherwise, and punitive damages, which might otherwise guard against such profiteering, are no obstacle at all." Insurance companies, of course, are not charities, but corporations; their boards are subject to a fiduciary duty to maximize shareholder value. If it is possible to accomplish this by mistreating insureds, then it follows insurers will do precisely that (and believe me, they do).
2. Procedure. In ERISA litigation, courts have determined among other things that there is no right to a jury; that discovery (the pre-trial process where you obtain the other side's documents, take depositions and such) is to be significantly abridged; that the evidence which may be introduced at trial is limited to that which the insurer deigned to assemble during its claims evaluation process; and that, when the policy contains language vesting "discretion" in the insurer, if you prove the insurance company was wrong -- you lose. In order to win, you must prove the denial was "arbitrary and capricious" -- that is to say, ridiculous, absurd, unintelligible, crazy. And lo and behold, the insurance companies grant themselves "discretion" when they write their policies. In this way we treat insurance companies as if they were federal judges. But Learned Hand they are not.
These days we're all debating health care reform and what to do about the uninsured. ERISA matters a lot here, because if you get your insurance through your employment, then consider yourself to be in that group. If by "insurance" you mean something like an enforceable promise by an insurance company that it will pay for what it says it will, what you have doesn't qualify. What you have is a piece of paper saying some company will pay your claim if it feels like it. You don't have insurance at all -- you only think you do.
Thursday, October 14, 2010
Buy a vowel: ER_SA _nsurers l_e, cheat and steal
Pat Sajek, long-time host of Wheel of Fortune and occasional conservative political commentator, thinks we ought to consider limits on public employees’ ability to vote on ballot initiatives which would directly affect their personal self-interest. He backs up his thoughts with this rationale:
In the small world department, here we have Wheel of Fortune game show host (I once read an interview in an airplane magazine in which Vanna White said her primary occupational requirement was that “You have to know the entire alphabet”; I think she was kidding):
anyway where was I? Oh yes, game show host channels American icon James Madison in Federalist Paper 10: “No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.”
Well , we all know that ERISA insurers regularly make decisions, often ruining -- or ending -- the lives of real people, in matters where they “could directly or unevenly benefit from decisions made.” And yet we treat these biased decisions as if they came from an impartial judge who has no skin in the game. As we’ve discussed previously that doesn’t make any sense.
So to exasperated judges, academic experts, and James Madison, we can now add “game show host” to the ranks of anti-ERISA advocates.
In nearly all private and public endeavors, there are occasions in which it's only fair and correct that a person or group be barred from participating because that party could directly and unevenly benefit from decisions made and policies adopted.
In the small world department, here we have Wheel of Fortune game show host (I once read an interview in an airplane magazine in which Vanna White said her primary occupational requirement was that “You have to know the entire alphabet”; I think she was kidding):
anyway where was I? Oh yes, game show host channels American icon James Madison in Federalist Paper 10: “No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.”
Well , we all know that ERISA insurers regularly make decisions, often ruining -- or ending -- the lives of real people, in matters where they “could directly or unevenly benefit from decisions made.” And yet we treat these biased decisions as if they came from an impartial judge who has no skin in the game. As we’ve discussed previously that doesn’t make any sense.
So to exasperated judges, academic experts, and James Madison, we can now add “game show host” to the ranks of anti-ERISA advocates.
The Problem, redux
Around the first day of each month I'll be posting a reprise of the first post on this blog, which contains an overview of the Problem. It'll be updated and edited as we go along. But I'd like to have a summary of the Problem available frequently, hence the monthly repeat and update. So off we go...
ERISA is the Employee Retirement Income Security Act, and it is codified in Title 29 of the United States Code, starting with section 1001. It's federal law, enacted in 1974, and it was supposed to protect employees' rights in connection with their pension plans and benefit plans (health, disability, life insurance, that sort of thing). But it doesn't. Quite the contrary.
This blog is dedicated to the ERISA problem.
What is that problem? It mainly concerns those benefit plans (ERISA is actually not a bad law with respect to pension plans). Pension plans is what they had in mind when they enacted it -- benefit plans were an afterthought.
And it shows. If your insurance company wrongfully denies your claim, you might figure you can always take them to court. You can do that (usually), but when you get there you'll find things don't make any sense. We'll go into the particulars soon, but for now:
If you get your insurance coverage through your employment, then in virtually every case ERISA preempts state law (meaning it cancels it out, eradicates it, takes its place). But, having gutted state law relating to insurance disputes, it fails to provide any reasonable substitute. The remedies it provides (i.e. what you get if you win a lawsuit) are very, very stingy. And ERISA severely compromises your ability to secure even the scant remedies it does provide.
1. Remedies. ERISA limits the recovery you might get to the benefits which should have been provided in the first place, and an award on account of attorney fees in the court’s discretion. Example: you have your disability benefits wrongfully denied. As a result, you have no income, your credit rating is trashed, you lose your home and you are driven into bankruptcy. You file your ERISA suit and against the odds, you win. What do you get? The benefits they should have been paying you back when it might have done you some good. That's all (you might -- might -- get something on account of your attorney fees too).
The trashed credit, the lost home, the bankruptcy, the ruined life? Bupkis. ERISA does not allow for any recovery on account of these sorts of consequential damages -- none. And this applies even if the insurance company committed outright fraud when it denied your claim. Incidentally, I find it quite difficult to understand why the insurance industry, uniquely among all industries in America, needs to have immunity from liability for fraud if it is to offer its services at a reasonable price. Anyway, this concern goes beyond making people whole; it also directly impacts the behavior of insurance companies.
As of now we have a situation where the law tells insurers they face no meaningful consequences if they deny care improperly or even commit outright fraud. As one federal judge has commented, "if an HMO wrongly denies a participant's claim even in bad faith, the greatest cost it could face is being compelled to cover the procedure, the very cost it would have faced had it acted in good faith. Any rational HMO will recognize that if it acts in good faith, it will pay for far more procedures than if it acts otherwise, and punitive damages, which might otherwise guard against such profiteering, are no obstacle at all." Insurance companies, of course, are not charities, but corporations; their boards are subject to a fiduciary duty to maximize shareholder value. If it is possible to accomplish this by mistreating insureds, then it follows insurers will do precisely that (and believe me, they do).
2. Procedure. In ERISA litigation, courts have determined among other things that there is no right to a jury; that discovery (the pre-trial process where you obtain the other side's documents, take depositions and such) is to be significantly abridged; that the evidence which may be introduced at trial is limited to that which the insurer deigned to assemble during its claims evaluation process; and that, when the policy contains language vesting "discretion" in the insurer, if you prove the insurance company was wrong -- you lose. In order to win, you must prove the denial was "arbitrary and capricious" -- that is to say, ridiculous, absurd, unintelligible, crazy. And lo and behold, the insurance companies grant themselves "discretion" when they write their policies. In this way we treat insurance companies as if they were federal judges. But Learned Hand they are not.
These days we're all debating health care reform and what to do about the uninsured. ERISA matters a lot here, because if you get your insurance through your employment, then consider yourself to be in that group. If by "insurance" you mean something like an enforceable promise by an insurance company that it will pay for what it says it will, what you have doesn't qualify. What you have is a piece of paper saying some company will pay your claim if it feels like it. You don't have insurance at all -- you only think you do.
ERISA is the Employee Retirement Income Security Act, and it is codified in Title 29 of the United States Code, starting with section 1001. It's federal law, enacted in 1974, and it was supposed to protect employees' rights in connection with their pension plans and benefit plans (health, disability, life insurance, that sort of thing). But it doesn't. Quite the contrary.
This blog is dedicated to the ERISA problem.
What is that problem? It mainly concerns those benefit plans (ERISA is actually not a bad law with respect to pension plans). Pension plans is what they had in mind when they enacted it -- benefit plans were an afterthought.
And it shows. If your insurance company wrongfully denies your claim, you might figure you can always take them to court. You can do that (usually), but when you get there you'll find things don't make any sense. We'll go into the particulars soon, but for now:
If you get your insurance coverage through your employment, then in virtually every case ERISA preempts state law (meaning it cancels it out, eradicates it, takes its place). But, having gutted state law relating to insurance disputes, it fails to provide any reasonable substitute. The remedies it provides (i.e. what you get if you win a lawsuit) are very, very stingy. And ERISA severely compromises your ability to secure even the scant remedies it does provide.
1. Remedies. ERISA limits the recovery you might get to the benefits which should have been provided in the first place, and an award on account of attorney fees in the court’s discretion. Example: you have your disability benefits wrongfully denied. As a result, you have no income, your credit rating is trashed, you lose your home and you are driven into bankruptcy. You file your ERISA suit and against the odds, you win. What do you get? The benefits they should have been paying you back when it might have done you some good. That's all (you might -- might -- get something on account of your attorney fees too).
The trashed credit, the lost home, the bankruptcy, the ruined life? Bupkis. ERISA does not allow for any recovery on account of these sorts of consequential damages -- none. And this applies even if the insurance company committed outright fraud when it denied your claim. Incidentally, I find it quite difficult to understand why the insurance industry, uniquely among all industries in America, needs to have immunity from liability for fraud if it is to offer its services at a reasonable price. Anyway, this concern goes beyond making people whole; it also directly impacts the behavior of insurance companies.
As of now we have a situation where the law tells insurers they face no meaningful consequences if they deny care improperly or even commit outright fraud. As one federal judge has commented, "if an HMO wrongly denies a participant's claim even in bad faith, the greatest cost it could face is being compelled to cover the procedure, the very cost it would have faced had it acted in good faith. Any rational HMO will recognize that if it acts in good faith, it will pay for far more procedures than if it acts otherwise, and punitive damages, which might otherwise guard against such profiteering, are no obstacle at all." Insurance companies, of course, are not charities, but corporations; their boards are subject to a fiduciary duty to maximize shareholder value. If it is possible to accomplish this by mistreating insureds, then it follows insurers will do precisely that (and believe me, they do).
2. Procedure. In ERISA litigation, courts have determined among other things that there is no right to a jury; that discovery (the pre-trial process where you obtain the other side's documents, take depositions and such) is to be significantly abridged; that the evidence which may be introduced at trial is limited to that which the insurer deigned to assemble during its claims evaluation process; and that, when the policy contains language vesting "discretion" in the insurer, if you prove the insurance company was wrong -- you lose. In order to win, you must prove the denial was "arbitrary and capricious" -- that is to say, ridiculous, absurd, unintelligible, crazy. And lo and behold, the insurance companies grant themselves "discretion" when they write their policies. In this way we treat insurance companies as if they were federal judges. But Learned Hand they are not.
These days we're all debating health care reform and what to do about the uninsured. ERISA matters a lot here, because if you get your insurance through your employment, then consider yourself to be in that group. If by "insurance" you mean something like an enforceable promise by an insurance company that it will pay for what it says it will, what you have doesn't qualify. What you have is a piece of paper saying some company will pay your claim if it feels like it. You don't have insurance at all -- you only think you do.
Friday, September 24, 2010
The rising judicial chorus goes to Washington: Senate Finance Committee to consider disability insurers’ conduct under ERISA [UPDATED]
Next week, the Senate Finance Committee is going to consider the manner in which ERISA affects the behavior of disability insurance companies. Since at least a few Senators will be paying at least some attention to the issue, this is a good time to make some noise. You can learn how to submit your comments for the record in the Senate hearings here.
A few witnesses have already submitted written testimony ahead of time. One of them is United States District Court Senior Judge William M. Acker, Jr., of the Northern District of Alabama. Judge Acker’s testimony focuses on the “discretion” scam, in which insurers confer upon themselves “discretion” in their insurance policies and then use that as a shield to keep judges from reversing their improper claim denials. A few highlights from Judge Acker:
Here’s Judge Acker’s testimony in its entirety; it is definitely worth a read:
Testimony by Judge William Acker to Senate Finance Committee re ERISA
You'll be able to access the testimony of other witnesses here.
It is never a bad time to do so, but now is a particularly good time to make some noise to your Congressional representatives.
UPDATE (9/28/2010): You can watch the hearing in its entirety here.
A few witnesses have already submitted written testimony ahead of time. One of them is United States District Court Senior Judge William M. Acker, Jr., of the Northern District of Alabama. Judge Acker’s testimony focuses on the “discretion” scam, in which insurers confer upon themselves “discretion” in their insurance policies and then use that as a shield to keep judges from reversing their improper claim denials. A few highlights from Judge Acker:
I am not saying that the courts, including the Supreme Court, have not tried to make sense of ERISA, and to make it workable, but in truth, the situation is worse in 2010 than it was in 1998, and getting worse every day.
The language [Congress] chose in 1974, if it had not, over time, been altered or obliterated by the courts, would provide for de novo consideration by a court of all denials of ERISA benefits. ERISA’s Section 502(a)(1)(B) straightforwardly provides that any beneficiary of a plan governed by ERISA can bring a “civil action ... to recover benefits due him under the terms of his plan”. Rule 2 of the Federal Rules of Procedure provides: “There is one form of action – the civil action”. This language recognizes nothing less than an independent consideration by the court, a “trial on the merits”. The procedure concocted by the courts in the years since 1974, now called “judicial review”, based on an examination of the administrative record, while giving deference to the conflicted decision-maker who has already denied the claim, simply does not fit the scheme that Congress contemplated.
ERISA jurisprudence will stay as messed up as it is, unless Congress reworks it. The courts have not rescued ERISA, and cannot be expected to do so. The most important legislative change that I implore you to make is to make it clear that when Congress says “civil action”, as it did in 1974, it means what it said, “civil action” and not “judicial review”.
Here’s Judge Acker’s testimony in its entirety; it is definitely worth a read:
Testimony by Judge William Acker to Senate Finance Committee re ERISA
You'll be able to access the testimony of other witnesses here.
It is never a bad time to do so, but now is a particularly good time to make some noise to your Congressional representatives.
UPDATE (9/28/2010): You can watch the hearing in its entirety here.
Tuesday, September 14, 2010
Reader’s Corner: A review by an ERISA drone of an ABA book about the legal rights of the mentally disabled
The American Bar Association, aside from looking out for the interests of lawyers, conducting professional educational get-togethers, and weighing in on the occasional Supreme Court appointee, also publishes a lot of professional literature. They’ve been kind enough to provide me a copy of one such work, entitled Civil Mental Disability Law, Evidence and Testimony, edited by John Parry, J.D., so I can give it a look and review it here for both of you who read this blog. The ABA provided it free of charge, but with no strings about what I might have to say about it, so I consider this to be a pretty impartial overview.
Civil Mental Disability Law to begin with, is a thick book, and it weighs enough that it maxed out my little postage scale here in the office. That’s not because there’s lots of pretty pictures or oversized type. It is comprehensive, and provides an overview at least of a great many areas which can and do impact on the legal rights of the disabled. The topics covered include such things as abuse and neglect; discrimination in employment, housing and public accommodations; social security disability; and of course our favorite law, ERISA, insofar as it impacts things like ERISA-governed disability insurance. A complete table of contents is here.
While the coverage is comprehensive, the other side of that coin is that the discussion of particular topics (if the ERISA section is indicative anyway) is less detailed than it could be if a work were devoted to that topic alone (and they are all deserving of such treatment). The ERISA discussion certainly provides a good basic overview, but for a practitioner it would be a starting point for research; it wouldn’t constitute comprehensive research in itself. Its treatment of what is, in my opinion, the most important “feature” of ERISA – the fact that insurers are immune from any meaningful liability no matter how badly they act – is really a single sentence: “One threshold problem has been the negative impact of federal preemption on state insurance laws that might otherwise protect persons with mental disabilities from discrimination.” That’s certainly true, but it either soft-peddles or fails to mention the overriding problem of the bulletproof insurer: the ERISA problem isn’t limited to discrimination; it permeates the insurer-insured relationship and renders entire insurance policies effectively illusory.
All that said, I don’t consider it a criticism so much as an observation, because the book does not pretend to be anything other than what it is: a comprehensive overview of a variety of topics impacting the legal rights of the mentally disabled. And an overview is quite useful to someone, like me, who starts out being unfamiliar with the subject matter. Civil Mental Disability Law covers the issues which might arise and provides a good succinct introduction to each, and for that, as a lawyer, I’m quite grateful.
Civil Mental Disability Law to begin with, is a thick book, and it weighs enough that it maxed out my little postage scale here in the office. That’s not because there’s lots of pretty pictures or oversized type. It is comprehensive, and provides an overview at least of a great many areas which can and do impact on the legal rights of the disabled. The topics covered include such things as abuse and neglect; discrimination in employment, housing and public accommodations; social security disability; and of course our favorite law, ERISA, insofar as it impacts things like ERISA-governed disability insurance. A complete table of contents is here.
While the coverage is comprehensive, the other side of that coin is that the discussion of particular topics (if the ERISA section is indicative anyway) is less detailed than it could be if a work were devoted to that topic alone (and they are all deserving of such treatment). The ERISA discussion certainly provides a good basic overview, but for a practitioner it would be a starting point for research; it wouldn’t constitute comprehensive research in itself. Its treatment of what is, in my opinion, the most important “feature” of ERISA – the fact that insurers are immune from any meaningful liability no matter how badly they act – is really a single sentence: “One threshold problem has been the negative impact of federal preemption on state insurance laws that might otherwise protect persons with mental disabilities from discrimination.” That’s certainly true, but it either soft-peddles or fails to mention the overriding problem of the bulletproof insurer: the ERISA problem isn’t limited to discrimination; it permeates the insurer-insured relationship and renders entire insurance policies effectively illusory.
All that said, I don’t consider it a criticism so much as an observation, because the book does not pretend to be anything other than what it is: a comprehensive overview of a variety of topics impacting the legal rights of the mentally disabled. And an overview is quite useful to someone, like me, who starts out being unfamiliar with the subject matter. Civil Mental Disability Law covers the issues which might arise and provides a good succinct introduction to each, and for that, as a lawyer, I’m quite grateful.
Subscribe to:
Posts (Atom)