From judy-doc@coollist.com Wed Apr 28 04:14:10 1999
Date: Thu, 22 Apr 1999 17:32:24 -0400
From: judy-doc List Owner 
To: judy-doc@coollist.com
Subject: Eureka - ERISA IS BREACHED

Alright folks, now I know this isn't going to sink in to you lawyers as
quickly as the rest of us but the decision in UNUM v. WARD clearly and
UMABIGUOUSLY states that ERISA does not TRUMP state insurance laws that
have more severe restrictions than ERISA, only those with lesser.

The judges stated, with exasperation in their tone, (with regard to the
Notice-Prejudice law - a California law that REGULATES INSURANCE)
"The Court rejects UNUM's assertion that the notice-prejudice rule
conflicts in three ways with the substantive provisions of ERISA.  First,
UNUM's contention that the rule, by altering the notice provisions of
the insurance contract, conflicts with ERISA's requirement that plan
fiduciaries act "in accordance with the documents and instruments
governing the plan," 1104(a)(1)(D), overlooks controlling precedent and
MAKES SCANT SENSE.  THIS COURT HAS REPEATEDLY HELD THAT STATE LAWS
MANDATING INSURANCE CONTRACT TERMS [Note from Judydoc - don't all state
insurance laws mandate insurance contract terms?] ARE SAVED FROM
PREEMPTION UNDER 1144 (b)(2)(A). See, e.g., Metropolitan Life, 471 U.S.,
at 758.  Under UNUM's interpretation, however, States would be powerless
to alter the terms of the insurance relationship in ERISA plans;
INSURERS COULD DISPLACE ANY STATE REGULATION SIMPLY BY INSERTING A
CONTRARY TERM IN PLAN DOCUMENTS.  THIS INTERPRETATION WOULD VIRTUALLY
READ THE SAVING CLAUSE OUT OF ERISA."........"by allowing a longer
period to file than the MINIMUM filing terms mandated by federal law,
the notice-prejudice rule COMPLEMENTS rather than contradicts ERISA and the regulations." 

Based on my reading of this it is clear that ANY STATE INSURANCE LAW,
including the provisions for multiple or punitive damages for wrongful
denials IS NOT PRE-EMPTED by ERISA since these provisions would provide
EVEN GREATER PROTECTION for plan participants and beneficiaries. (than
the current system of virtually NO PENALTY FOR WRONGFUL DENIALS).  

WHY IS THIS SO HARD TO UNDERSTAND AND WHY DO DISTRICT COURT JUDGES GET
AWAY WITH FLOUTING THE EXPRESSED WISHES OF CONGRESS AND THE SUPREME COURT?????

Any other interpretation of what these judges are saying would severely
strain the imagination!

So com'n you lawyers, start using the Supreme Court's learned opinions to
keep your cases in state court/or apply state court insurance REGULATIONS
as ERISA clearly mandates in it's Savings Clause.

I know we have a problem with some judges, but we're going to be a lot
more successful if we present these arguments to MORE JUDGES in MORE CASES
instead of not even trying because it's an ERISA case.
-------------------

Other news:
The news report about HMO billing irregularies failed to mention that the
recent Supreme Court decision allowing a RICO case to go forward against
HUMANA was about just that issue - hidden discounts for insurers while
policyholders pay the full deductible.

I attended a meeting on Sunday of the Ad Hoc Committee to Defend Healthcare
and would like to report on it and encourage all to join.  This organization
originally started as a doctor's organization but they fortunately realized
that they needed to include EVERYONE in order to accomplish their goal of
raising awareness about health insurance fraud by insurers and the way it
is undermining the entire basis of our nations health care and doctor/patients
relationships.  The organization reports they are doing well, spreading into
other states as membership continues to grow.  They are currently recruiting
and educating speakers who can go to communities, churchs, etc. to give talks
on the nature and problems of health care today, mostly caused by the
for-profit obsession of the industry leaders.

I encourage all of you to check out their website and lend your support to
this outspoken group (not as outspoken as I am, but close and headed in
the right direction).  This group is so far made up of doctors, nurses,
other health providers and some patients who are willing to SPEAK UP,
refusing to be intimidated by insurance threats or lulled by their
false promises.

www.defendhealthcare.org

Please share this information with your doctors, nurses, even lawyers.
This might be the group that ends up working with the law to sue
insurers similar to the Aetna RICO case I reported yesterday that is being
helped by Jamie Court's Consumers for Quality Care (you can join them
too if you like).

I'm hoping the Ad Hoc Committee will end up being the physicians' voice
for patients, a job we WISH the AMA would have taken up long ago.

Judydoc