ERISA preemption of state law

One Man's Story of the Origins of ERISA
Excerpt:"Very few of us . . . really know the story behind ERISA, and how and why it came into being. So I [Scott Simon] thought it might be interesting over the next few months to explore the historical antecedents of modern qualified retirement plans in America and in the process record the oral history, so to speak, of one person who played an important role in shaping the world that many of us inhabit in our professional lives today."(Morningstar)

[Guidance Overview] September Deadline Set for Refiling Pension Overpayment Suit
Excerpt:"[The U.S. District Court] ordered that if a new suit against [the defendant] is not filed under [ERISA] by that date, [the court's] order throwing out ING's original case filed under Illinois state law will become permanent. The court ruled that the state law claims against Barrington in the original suit would be pre-empted by ERISA."(PLANSPONSOR.com)

[Guidance Overview] ERISA Plan Wins Recovery from Settlement; Auto Insurer Must Reimburse Member
Excerpt:"This is the first time we've seen a case where a federal district court ruled that a Michigan no-fault auto insurer now has to pay more than its maximum plan liability when a health plan subject to ERISA recovered a substantial portion of the tort settlement proceeds it paid."(Passion for Subro)

What Effect Will DOMA Cases Have on Benefit Plans?
Excerpt:"Although numerous federal laws are affected by the definition of a spouse, of particular note are those statutes affecting surviving spousal benefits, spousal consent requirements, qualified domestic relations orders, COBRA, flexible spending accounts, and taxation of medical benefits."(BNA Federal Tax Blogs)

Federal Appeals Court Puts California Gay Marriages on Hold
Excerpt:"California's ban on same-sex marriages will remain in place until at least December, an appeals court ruled Monday . . . ."(Washington Post; free registration required)

Local Employer Pay-or-Play Laws: ERISA Preemption a Moot Issue?
Excerpt:"Following the enactment of the Patient Protection and Affordable Care Act (PPACA) and the sweeping changes it is making to the healthcare landscape, it appears the issue of whether existing non-Federal employer'pay-or-play'healthcare mandates are preempted by ERISA has been put on hold."(Deloitte)

[Official Guidance] Labor Department Withdraws Proposed Rule on Definition of'Welfare Benefit Plan'
Excerpt:"The regulation was submitted to the OMB for review before the enactment of the Patient Protection and Affordable Care Act. The proposed regulation was intended to address issues relating to state health care efforts and their effect on the maintenance of ERISA-covered welfare plans."(U.S. Employee Benefits Security Administration)

U.S. Supreme Court to Consider Remedy for Deficient SPD
Excerpt:"To recover benefits based on an inconsistency between an ERISA plan document and summary plan description (SPD), must participants show reliance on the SPD? Is it sufficient to show'likely harm'? Or can participants prevail without any showing of harm? The US Supreme Court will tackle these questions . . . ."(Mercer)

[Opinion] ERISA Preemption: Depends on What You Mean by the Word Relate
Excerpt:"I suspect that one of the reasons this issue - of the scope of ERISA preemption - is difficult to handle at times is that there is a language barrier of sorts; as this case shows, relate has a specific meaning in the context of ERISA and ERISA preemption, and an entirely different and broader one when used as part of regular speech . . . ."(Stephen Rosenberg of The McCormack Firm, LLC)

Judicial Interpretation Has Made Things Worse for Benefit Plan Participants Under ERISA Than Had the Statute Never Been Enacted
Excerpt:"Given that the Act's stated purpose was to protect benefit plan participant, this is a surprising conclusion to have to reach. Nonetheless the argument is strong, and is validated in part by the thousands of cases that have accumulated in which plan participants/plaintiffs have been forced to argue ERISA does not apply to their claims, as a precondition to salvaging those claims."(Social Science Research Network)

[Official Guidance] U.S. Solicitor General Amicus Brief in Golden Gate Restaurant Association v. City and County of San Francisco (PDF)
26 pages. Excerpt:"This brief is submitted in response to the order ofthis Court inviting the Solicitor General to express the views of the United States. In the view of the United States, the petition for a writ of certiorari should be denied."(American Benefits Council)

Supplemental Brief for Petitioner in Golden Gate Restaurant Association v. City and County of San Francisco (PDF)
15 pages. Excerpt:"QUESTION PRESENTED: Whether ERISA section 514(a), 29 U.S.C. ? 1144(a), preempts local laws mandating ongoing employer contributions for employee health benefits, or alter-native payments to a local government, and extensive recordkeeping and reporting and disclosure require-ments, a question on which the courts of appeals are in conflict."(American Benefits Council)

[Guidance Overview] Supreme Court Changes Rules for Attorneys'Fees Awards Under ERISA; Increase in Fee Petitions Expected
Excerpt:"The Supreme Court's decision in Hardt may have inadvertently created more issues than it resolved. Importantly, the Supreme Court did not decide the question of whether a remand order to a plan administrator for further consideration qualifies, without more, as'some success on the merits'that entitles a claimant to fees under ERISA Section 502(g)(1)."(McDermott Will&Emery)

[Guidance Overview] Ninth Circuit Upholds Ban of Discretionary Clauses
Excerpt:"For fully insured plans, this is another indication that state regulations banning discretionary clauses will survive ERISA preemption challenge. Bear in mind that these regulations, in states adopting them (often based upon the NAIC model act) will apply to disability plans as well as health plans. The consequence will be de novo review of claim denials with augmented discovery in many cases."(Roy Harmon via Health Plan Law)

ERISA -- Principles of Employee Benefit Law
Excerpt:"[The newly published] ERISA: Principles of Employee Benefit Law highlights the common themes, central principles, and competing policies of employee benefit law in a compact, accessible work."(TaxProf Blog)

Fight Over ERISA Preemption Moves to Courts and Regulators
Excerpt:"As debate raged over death panels and doctors'fixes during the last year, a quiet battle was fought behind the scenes to preserve the ability of employers to continue paying their own health care costs. Known as self-insurance but more accurately as self-funded plans, a substantial number of companies choose to pay their employee health care expenses directly out of their own general funds rather than buy a group plan from a private insurance company. In Alaska, approximately 60 percent of privately covered employees have a self-funded company plan and make up 32 percent ? the largest share ? of the overall workforce, according to state officials."(Passion for Subro!)

Case Outcome May Help Determine Whether Tribal Plans Subject to Federal Law
Excerpt:"Congress said that in order to escape regulation by ERISA, most of the employees of an Indian tribe have to be doing governmental work, not the kinds of commercial enterprises run by the Southern Ute tribe. Dobbs, for example, worked as a geologist for the tribe's Red Willow Production Co. That will make it hard for the Dobbses to prove their case, said Tom Shipps, lawyer for the Southern Ute tribe.'It seems it will be difficult, if not impossible, to conclude the benefit programs administered by the tribe meet that test,'Shipps said."(The Durango Herald)

[Guidance Overview] TPA Did Not Function As ERISA Fiduciary, Leaving it Open to State Law Breach of Contract Claims
Excerpt:"As health care costs continue to rise, and employers become more vigilant about policing benefit costs, it is perhaps inevitable that lawsuits by employers against their plan's TPA are likely to increase. A recent such case, W.E. Aubuchon Company, inc. v. BeneFirst, LLC, 2009 WL 3272491 (D. Mass.), illustrates this trend. In its Complaint, Aubuchon alleged that BeneFirst committed claim processing errors that cost the Aubuchon Plan millions of dollars."(Passion for Subro!)

DOL to Address ERISA Preemption of State Health Reform Efforts in Proposed Regulations
Excerpt:"The Department of Labor has notified the Office of Management and Budget (OMB) that it proposes to issue regulations regarding when health care reform efforts on the part of state and local governments are subject to ERISA preemption."(Deloitte via BenefitsLink.com)

[Guidance Overview] Conflict Forming in the Circuits: ERISA Preemption of State Laws that Prohibit Discretionary Clauses
Excerpt:"The Tenth Circuit recently held that ERISA preempts a Utah state insurance statute which prohibits insured employee benefit plans from including'discretionary clauses'other than those prescribed by the statute. Discretionary clauses, which reserve to the plan administrator the discretion to interpret the plan document and determine the benefits payable, have long been staple language in ERISA plans. The decision conflicts with decisions in the Ninth and Sixth Circuits, which held such state laws enforceable."(Deloitte via BenefitsLink.com)

[Guidance Overview] DOL Field Assistance Bulletin Provides Additional Guidance on 403(b) ERISA Exemption
Excerpt:"FAB 2010-01, which addresses two issues regarding 403(b) plans: (1) What assets must a 403(b) plan report on Form 5500; and (2) Is a 403(b) plan of a tax-exempt organization subject to ERISA. This Technical Update focuses on the ERISA issue."(SunGard Relius)

[Guidance Overview] Who is Entitled to Life Insurance Benefits and Top-Hat Benefits from an ERISA Plan Following Divorce or Marital Separation?
Excerpt:"ERISA plans generally need not follow state-court orders. On the other hand, ERISA plans must follow the designation terms of those DROs that are qualified domestic relations orders ('QDROs'). Questions have been raised about whether life insurance plans and top-hat plans (which are pension plans maintained primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees) must follow the designation terms of a DRO that'satisfies the QDRO requirements,'but contradicts a designation made pursuant to the plan terms."(Social Science Research Network)

[Guidance Overview] When Employee Benefits are Subject to ERISA and What that Means
Excerpt:"Although some of ERISA's requirements may add work that would not be necessary otherwise, ERISA-coverage also provides some benefits for an employer. ERISA preempts state law with respect to benefits provided under an ERISA-covered plan. This preemption is advantageous for you because state laws generally provide more expansive remedies than the remedies available under ERISA. Therefore, you can use ERISA to protect yourself from exposure to the liabilities associated with state court remedies."(Poyner Spruill LLP)

Supreme Court Rules that ERISA Preempts State Law Claims Challenging Utilization Review by HMO
Excerpt:"This article reports on Aetna Health Inc. v. Davila, the 2004 United States Supreme Court ruling that members of ERISA health plans cannot sue their plan administrators for consequential damages for injuries the members suffered allegedly due to the administrators'coverage decisions."(Social Science Research Network)

[Opinion] Closing the Health Care Loopholes
Excerpt:"[With the closing of a minor loophole, real progress could be achieved] on many of the issues which Republicans and Democrats share common ground on. So what's this simple loophole? It's called,'ERISA preemption.'Basically, ERISA is a federal law that was designed to regulate all employee benefits. Where there is a federal law that governs certain activities -- in this case the administration of employee benefits -- then any state law governing the same activity is'pre-empted'or superseded by the federal ERISA law. ERISA was never intended to regulate health insurance, and even contains explicit language which states that it is not to be read to cover healthcare plans."(The Cornell Daily Sun)

[Guidance Overview] ERISA's Exemption for Governmental Plans and Right to Jury Trial, According to the Tenth Circuit Court
Excerpt:"The 10th Circuit Court of Appeals recently issued a decision addressing two ERISA issues: (1) what constitutes a'governmental plan;'and (2) the right to trial by jury. These issues were addressed in the case of Shirley Graham v. Hartford Life and Accident Insurance Company, 589 F.3d 1345 (10th Cir. 2009), decided December 29, 2009. This was an appeal out of the Northern District of Oklahoma."(Law Office of Shawn E. McDermott, LLC)

The Role of ERISA Preemption in Health Reform: Opportunities and Limits (PDF)
Excerpt:"As many states pursue health care reform experiments, ERISA preemption becomes relevant as a potential limit on the scope and type of reforms states are able to enact. The dominant trend in ERISA litigation has been to preempt state legislation and litigation interfering with the administration of private employer sponsored health plans, making large-scale state health care reform initiatives difficult. The purpose of this paper is to examine the trajectory of judicial interpretation of ERISA and to discuss what opportunities exist to facilitate health care initiatives given the constraints of ERISA preemption."(The O?Neill Institute for National and Global Health Law at Georgetown University)

Increase Predicted for 2010 Workplace Litigation by Report from Seyfarth Shaw
Excerpt:"Six key trends from the report are epitomized by the firm as follows: First, the plaintiffs'bar increased the pace of the Fair Labor Standards Act ('FLSA') collective action and the Employee Retirement Income Security Act ('ERISA') class action filings seeking recovery for unpaid wages and 401(k) losses. As lay-offs increased, displaced workers also filed more age discrimination and Worker Adjustment and Retraining Notification lawsuits. Even more litigation is expected in 2010, as businesses re-tool their operations."(Roy Harmon III via Health Plan Law)

Supreme Court to Clarify Who is Entitled to Attorney's Fees Under ERISA
Excerpt:"In accepting this case for review, the Supreme Court will resolve whether Section 502(g)(1) of ERISA, the attorney's fees provision, provides a district court discretion to award reasonable attorney's fees only to a prevailing party; and whether a party is entitled to attorney's fees under this section when she persuades a district court that a violation of ERISA has occurred, successfully secures a judicially-ordered remand requiring a re-determination of entitlement to benefits and subsequently receives the benefits sought on remand."(Littler Mendelson P.C.)

Preemption Provisions of ERISA Allow Fully Insured Health Plans That Discriminate in Favor of Highly Compensated
Excerpt:"For a full three decades, employers with fully insured health plans have been able to provide tax-free medical benefits just to executives because discrimination laws are different for insured plans than for self-funded plans. However, under the Senate's health reform proposal (which adds a new Sec. 2716 to the Public Health Service Act), this plan design will be prohibited."(Wolters Kluwer)

[Guidance Overview] Eleventh Circuit Applies Supreme Court's Davila Test to Health Care Providers''Hybrid'Claims
Excerpt:"This recent 11th Circuit opinion applies the two-part analysis required under Aetna Health Inc. v. Davila, 542 U.S. 200 (2004) to health care providers'allegations in a class action complaint. The now familiar Davila test requires two inquiries: (1) whether the plaintiff could have brought its claim under ? 502(a); and (2) whether no other legal duty supports the plaintiff's claim. On the facts before it in this case, the Court held that several of the providers'claims were completely preempted under this test."(Roy Harmon III via Health Plan Law)

Patients Sue HMOs and Insurance Companies Over Lack of Inspections Before Hepatitis Crisis
Excerpt:"HMOs and health insurance companies have a reputation for being immune to patients'lawsuits, but an avalanche of court cases has been filed against them in connection with a hepatitis outbreak in Southern Nevada. Health maintenance organizations and health insurance companies must be held accountable for telling people which doctors they must use, say the attorneys of people who contracted or were exposed to hepatitis C at Dr. Dipak Desai's Las Vegas Valley endoscopy clinics."(Las Vegas Sun)

[Guidance Overview] Health Care Provider's Tort Claims Preempted Under Fifth Circuit ERISA Jurisprudence
Excerpt:"In this opinion out of the Southern District of Texas, the Court finds the health care provider's claims for reimbursement preempted where the provider sued the health plan asserting'tort claims flowing from the direct communications and business relationship between the parties.'The presence of an assignment of benefits and the absence of claims based upon a managed care contract contributed largely to the plan's successful defense."(Roy Harmon III via Health Plan Law)

[Guidance Overview] Discrimination Claims or ERISA Benefit Claims? The ERISA Preemption Divide
Excerpt:"In this case, the plaintiff sued on state law theories of discrimination and retaliation but the facts she alleged were found tilted toward a claim for severance benefits which in turn warranted preemption."(Health Plan Law blog by Attorney Roy Harmon III)

[Guidance Overview] Cancer Insurance Policy Endorsed by Employer and Offered Through Cafeteria Plan Was an ERISA Plan
Excerpt:"EBIA Comment: Employees who choose to participate in a voluntary plan may expect the employer to allow them to pay premiums through the employer's cafeteria plan. Before permitting this, however, the employer must weigh the risk that use of the cafeteria plan may contribute to endorsement, taking the voluntary plan out of the safe harbor and making it subject to ERISA. While it's not clear how much weight the court gave to the employer's use of a cafeteria plan (or to the fact that the policy was apparently the only benefit offered on a pre-tax basis), there will inevitably be additional employer involvement when a cafeteria plan is utilized. And while not at issue in this case, employers should also consider the impact of COBRA, HIPAA, and other laws before allowing coverage to be paid for through a cafeteria plan."(Employee Benefits Institute of America)

[Opinion] Protect Hawaii Health Care from ERISA
Excerpt:"The health care reform package approved by the U.S. House last week may bear little similarity to the Senate version, if one emerges. In its final form, a reform measure should expand Hawaii's health care system, but separate federal and state legislation may be needed to prevent Hawaii's system from being dismantled as a result. Three years after Hawaii's Prepaid Health Care Act was enacted in 1974, Standard Oil won a court ruling that invalidated the act as a violation of the federal Employment Retirement Income Security Act. Hawaii's congressional delegation saved the day by securing an exemption from ERISA through legislation."(starbulletin.com)

[Opinion] ERISA Preemption Redux
Excerpt:"In a recent post, Mark Hall raises an interesting issue regarding ERISA preemption and the proposal in HR 3962, the recently enacted House of Representatives'health reform bill. Mark suggests that:'1) for insurance sold outside of the exchange, ERISA law and its preemption remains the same; 2) for insurance sold inside the exchange, ERISA preemption is rolled back, and state law applies ? even if the coverage might be employer-sponsored in some fashion.'In response, attorney Richard Johnston counters that'HR 3962 preserves ERISA's malignant scheme.'As Mr. Johnston notes, he is a plaintiff's attorney and can be expected to characterize ERISA as malignant. (As my previous post on ERISA preemption suggests, I largely agree with Mr. Johnston's depiction.) But Mr. Johnston goes further and seems to suggest that Mark's second point is not correct and that ERISA preemption remains in force. Who's right? As Mark correctly notes,'one can't be sure.'This is, after all, ERISA preemption where nothing is what it appears to be -- sort of the Alice in Wonderland of health law! My own take is closer to Mr. Johnston's."(O?Neill Institute for National and Global Health Law)

[Guidance Overview] Massachusetts High Court Rules That ERISA Preempts a Claim Based on Unjust Enrichment
Excerpt:"The Court noted [two reasons] for concluding that Hitachi's claim is preempted by ERISA. [The second is that in] enacting ERISA, Congress intended to provide a comprehensive remedial scheme that would serve as the exclusive enforcement mechanism for ERISA disputes. This scheme provides strong evidence that Congress did not intend to authorize the remedies that it simply did not incorporate in the statute. A remedy based on a claim of unjust enrichment-as opposed to certain claims for restitution- is not one of the remedies included in the statute. Having concluded that ERISA preempts Hitachi's claims for two reasons, the Court affirmed the lower court's dismissal of the case."(ERISA Lawyer Blog)

State Legislation Opposing Certain Health Reforms, 2009-2010
Excerpt:"States have an extensive and complicated shared power relationship with the federal government in regulating various aspects of the health insurance market and in enacting health reforms. As part of state-based responses to federal health reform legislation, members of at least 11 state legislatures are using the legislative process to seek to limit, alter or oppose selected federal actions, including single-payer provisions and mandates that would require purchase of insurance. Based on actions initially in Arizona, several states propose or may propose state constitutional amendments, using language such as . . . ."(National Conference of State Legislatures)

[Guidance Overview] ERISA Can Govern Individual Disability Insurance Policies in an Employment Setting
Excerpt:"A recent case decided in Tennessee serves as a reminder that an insurance arrangement does not have to be group insurance in order for ERISA to apply. In Alexander v. Provident Life and Accident Insurance Co. . . . (E.D. Tenn. Oct. 16, 2009), the court held that individual disability insurance contracts for physician employees constituted an ERISA plan."(Poyner Spruill)

Head of Employee Benefit Security Administration, Phyllis Borzi, on Health Care Reform and ERISA Remedies
Excerpt:"[She talks] about the need for need for ERISA reform in the area of remedies as part of the push for health care reform. [In BNA's Pension and Benefits Daily, she says] Plan sponsors and employee benefit attorneys too often jump to the defense of the Employee Retirement Income Security Act for all the wrong reasons . . . ."(Workplace Prof Blog)

[Guidance Overview] Court Holds That QDRO Controls Determination of Life Insurance Beneficiaries Because Welfare Plan QDROs Are Not Preempted by ERISA
Excerpt:"EBIA Comment: The list of decisions that recognize a preemption exception for welfare plan QDROs keeps growing. Although the decision in this case (by a trial court in the First Circuit) is not binding precedent there, welfare plans in the Second, Fourth, Sixth, Seventh and Tenth Circuits should be prepared to deal with QDROs. Plan sponsors and insurers faced with conflicting QDRO-based claims to welfare benefits may, as the insurer did in this case, want to consider using interpleader to resolve the dispute and avoid the risk of having to pay benefits twice. Notwithstanding the growing weight of authority to the contrary, we continue to think there are reasons to conclude that ERISA's QDRO provisions properly apply only to pension plans (based on the legislative history and because the QDRO definition appears in Part 2 of ERISA which, under the plain language of ERISA Section 201(1), does not apply to welfare plans). These arguments might yet form the basis for a different conclusion in another federal circuit (or even in the Supreme Court, if the issue ever reaches that court)."(Employee Benefits Institute of America)

Supreme Court Asks for Obama Administration's Stance on Healthy San Francisco
Excerpt:"The justices'action Monday is not unusual. The court regularly asks the federal government for its position in important cases, particularly those that involve a possible conflict between federal and state or local laws. Such requests indicate that one or more justices are undecided about granting review, which requires four votes on the nine-member court."(San Francisco Chronicle)

[Guidance Overview] Ninth Circuit Holds That ERISA Does Not Preempt Hospital's State Law Claims
Excerpt:"In Marin General Hospital v. Modesto, the Ninth Circuit had to determine whether the Hospital's state-law claims are completely preempted under ? 502(a)(1)(B) of ERISA, 29 U.S.C. ? 1132(a)(1)(B), and thus whether the case was properly removed from state to federal court."(Roy Harmon III via Health Plan Law)

[Opinion] Healthy San Francisco Program Rated High by Participants, According to Survey
Excerpt:"At least two thoughts here: 1. The success of this pay or play program can act as a successful model for how an employer mandate can work for the provision of health care to the greater populations, and 2. Although the initial signs are good, there are still barriers as far as explaining the program to participants and these challenges remind me of those being fought on the pension side of the ledger. The San Francisco program is not out of the woods. There is still a possibility will be found preemptedunder ERISA."(Workplace Prof Blog)

[Opinion] Health Insurance Reform and ERISA Preemption
Excerpt:"One simple reform to the healthcare system which would be simple, budget-neutral and actually conservative would be to repeal the part of ERISA that immunizes health insurance providers from state common law actions in tort and contract. I honestly do not know whether the plans being considered by the Congress would provide this repeal, or whether they simply maintain the federal preemption but provide for federal remedies with more teeth than the current system. The current federal remedies -- reimbursement of out-of-pocket expenses by a victorious beneficiary or injunctive relief -- are useless for most people, and certainly lack the deterrent effect of state tort and even contract remedies."(TortsProf Blog)

An Interview with Brooks Hamilton Touching on ERISA and Pre-emption
Excerpt:"BrightScope: Why do you think judges are'ERISA novices'as you have indicated in your writings? Brooks Hamilton: Judges'appear'to be ERISA novices at their very best, or so it seems to me. Some may indeed even have a heartfelt bias, or perhaps an honest predisposition regarding fundamental ERISA issues, which in the altogether render them fundamentally indifferent, if not viscerally opposed, to the fiduciary standards imposed by ERISA. It must be remembered that'Trust law'as a descendant of the Common Law was not a basic part of federalism in the first place."(BrightScope Inc)

A Summary of Judge Sotomayor's ERISA Decisions: Part II (PDF)
3 pages. Excerpt:"This handful of cases is representative of Justice Sotomayor's decisions in ERISA cases during her time as a District Court judge. In short, Judge Sotomayor's District Court ERISA decisions are well-reasoned, thoughtful and meticulous. They are not the product of a'judicial activist.'Although we often see cases in which courts simply don't seem to'get it'when it comes to ERISA, the same cannot be said for Judge Sotomayor based on a review of those opinions."(Reish&Reicher)

[Guidance Overview] A Summary of Judge Sotomayor's ERISA Decisions at the Second Circuit Court of Appeals (PDF)
5 pages. Excerpt:"As a general proposition, there is nothing talismanic in Judge Sotomayor's ERISA decisions. They tend to follow existing law, rather than create it. Her opinions are clear, intelligent and thoughtful. They tend to reflect a thorough research of precedent, a comprehensive study of the record and a methodical examination and analysis of the arguments of the parties. . . . While on the Second Circuit Court of Appeals, Judge Sotomayor was a member of the panel deciding approximately twenty ERISA related cases. We will briefly discuss the five cases in which she has written the opinion for the Court."(Reish&Reicher)

[Guidance Overview] Sixth Circuit Rules That a Program of Insured Benefits to Which an Employer Pays the Premiums for at Least One Employee Is Subject to ERISA As to All Employees
Excerpt:"In Helfman v. GE Group Life Assurance Company, No. 08-2168 (6th Cir. 2009), the Court faced the question of whether a program, which consisted of two insurance policies that paid long-term disability benefits to employees (the'Program'), was subject to ERISA. The plaintiff did not want the Program to be subject to ERISA, because he was bringing a state law claim against the insurers under the Program which ERISA would preempt. The case centered on whether the Program was exempt from ERISA under the'safe harbor'found in the Department of Labor's regulations at 29 C.F.R. ? 2510.3-1(j). For the safe harbor to apply to the Program, among other requirements of the regulations, no premiums may be paid to the Program by an employer (the'No Premium Condition')."(Stanley D. Baum of Eaton&Van Winkle)

[Guidance Overview] Sixth Circuit Opines on ERISA'Safe Harbor'Exemption
Excerpt:"In general, in order to fall under this safe harbor (and fall out of ERISA), one of the requirements of the safe harbor is that no contributions be made by the employer, i.e. if the employer is making contributions to the plan, then it is an ERISA-covered plan. Thus, because many disability plans are funded either partially or fully by the employer, they are covered by ERISA. In the recent Sixth Circuit case of Helfman v. GE Group Life Assurance Company, et al., a participant had challenged the district court's decision that the plan was covered by ERISA because the participant sought to get out from under the ERISA banner of deference afforded the plan administrator's decision. The district court had ruled that the plan administrator had not abused its discretion and upheld the insurer's termination of the participant's benefits."(ERISA Fiduciary Guidebook)

[Guidance Overview] HIPAA Does Not Preempt State-Law Claim for Improper Disclosure of Medical Records
Excerpt:"EBIA Comment: Although this case did not involve a health plan, it caught our attention because it makes the important point that while HIPAA provides no private cause of action for individuals whose privacy rights are violated, state-law claims are still possible. This is because only state laws that are'contrary'to HIPAA are preempted and a provision of state law is'contrary'to HIPAA only if it would be impossible to comply with both the state and federal requirements, or if the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of HIPAA. We also note that if the state-law claim in this case had been made against a health plan subject to ERISA (ERISA applies to most private-sector plans), the plan would have had an additional argument for preemption based on ERISA's more sweeping preemption provision."(Employee Benefits Institute of America)

Obama Administration Stays Out of San Francisco Health Spending Case
Excerpt:"The Obama administration has not joined employers in seeking a Supreme Court review of a federal appeals court ruling that upheld San Francisco's controversial health care spending law. The administration let pass the July 10 deadline for friend-of-the-court briefs to be filed in the case."(Business Insurance)

Education and Labor Committee ERISA Waiver Amendment to H.R. 3200 (PDF)
4 pages. AMENDMENT OFFERED BY MR. KUCINICH OF OHIO. (U.S. House of Representatives Committee on Education&Labor via American Benefits Council)

Managing Health Benefits in Challenging Times: Mercer Survey on Recession and Reform
Excerpt:"Mercer's Survey on Recession and Reform explores how the downturn and health care reform efforts are affecting employers'health benefit programs. This Perspective reports the survey's findings on employers'expected health benefit costs in 2009 and cost-control plans for 2010; impact of the recently enacted federal COBRA subsidy, special CHIP enrollment rights and mental health parity expansion; and views on proposals to impose individual-coverage or employer pay-or-play mandates, curb employer deductions for benefits, waive ERISA pre-emption, or create a single-payer health care system. (Perspective, 13 Jul 2009, 11 pages)"(Mercer LLC)

Obama Administration Remains Quiet on San Francisco Health Plan
Excerpt:"In contrast to President George W. Bush's Labor Department, which unsuccessfully urged a federal appeals court to overturn the groundbreaking law, the new administration submitted no arguments before the July 10 deadline for briefs supporting or opposing Supreme Court review. President Obama, meanwhile, has praised the San Francisco program, the first of its kind in the nation, while pressing Congress to enact comprehensive health coverage."(San Francisco Chronicle)

Little Unity Among Businesses on Health Care Reform, According to Survey
Excerpt:"One reform proposal that scares employers who do business in multiple states is the possibility that officials on the state level would be able to usurp the authority of the Employment Retirement Income Security Act. Despite its name, ERISA primarily deals with health-plan regulation, and the law allows multistate employers to administer a companywide health plan. A survey by Miller&Chevalier and the American Benefits Council found nine out of 10 employers want to maintain ERISA's national standards rather than allow more state autonomy."(Chicago Tribune)

Amendment to Grant States the Right to Implement Single Payer Passes House Committee
Excerpt:"Today witnessed the landmark passage of the States Single Payer Amendment which would remove federal barriers to implementation of a single payer health care system at the state level. This bipartisan vote signifies the prominence of the single payer solution as the plan favored by a majority of Americans. The amendment introduced by Rep. Dennis Kucinich (D-Ohio) during the Education and Labor Committee's consideration the health reform bill -- H.R. 3200 -- passed by a bipartisan margin of 25-19. The amendment would free states from Employer Retirement Income Security Act (ERISA) regulations that have been used by insurance companies to tie down states with litigation, preventing them from implementing progressive health care solutions."(HuffingtonPost.com, Inc.)

[Opinion] Bipartisan Support for Removing Barriers to State Single-Payer Experiments
Excerpt:"Whether the country as a whole is ready for an equitable system whereby the government pays for everyone's health care costs out of tax revenue is clearly a debatable question. But many states and localities may already be. A consistent roadblock has been legal interpretations of ERISA, the Employee Retirement Security Act of 1974. ERISA governs the laws surrounding benefits offered by an employer, including health care benefits. ERISA, of course, does not require employers to provide health insurance. The fact that it does not always comes up when as the basis of legal challenges for employer mandates . . . ."(Change.org)

[Opinion] Supreme Court Justice Ginsberg Calls ERISA'Unfair'
Excerpt:"According to the Supreme Court, since the only remedy allowed under ERISA for a wrong-coverage decision was to force the insurance company to pay the benefit it should have paid to the insured in the first place, states could not allow a plaintiff to sue for a worsening of his condition or for pain, suffering, or death caused by the insurance company's decision. In her concurring opinion, Justice Ruth Bader Ginsburg joined'the rising judicial chorus urging Congress and the Supreme Court to revisit what is an unjust and increasingly tangled ERISA regime.'Justice Ginsburg said the problem was that the Court, through a series of decisions, had made it that virtually all state-law remedies would be preempted. She then noted that a'series of the Court's decisions has yielded a host of situations in which persons adversely affected by ERISA-proscribed wrongdoing cannot gain?relief,'and called for the current situation to be quickly remedied."(AnAmericanDay.com)