's Response to ERISA Court Decision

[Guest guest]

(RoseNote: sent this to the editor of each paper, as well as to our congressmen and senators)======================

Re: “State can't discipline HMO chief, judge says UnitedHealthcare director's decision made on coverage, not treatment.” (Dallas Morning News)

Re: “Texas loses case in HMO regulation.” (Ft. Worth-Star Telegram)

The Dallas judge cited in the story must be running for higher political office. The hair-splitting is right up there with “is is.” Dr. Doe wouldn’t authorize home health-care, nor would he authorize additional hospital days for a child that was unable to breath unassisted. If a life-and-death decision isn’t practicing medicine, what is? The ERISA pre-emption of States Rights has allowed the insurance industry to carve out the single greatest immunity from civil liability ever devised.

ERISA pre-empts most state "Bad faith" lawsuits (and punitive damages) and there are no punitive damages available under ERISA, no matter how oppressive the tactics and no matter how frivolous the claim denial. There is no right to a jury trial under ERISA. In most cases, the claimant will be limited to suing the Plan (as opposed to the insurance company or HMO) and the most that an aggrieved claimant can usually recover in a lawsuit is the amount of benefits due, interest, costs and a discretionary award of attorney fees. Thus, even if the claimant's case proceeds all the way to judgment, the most that the insurer can lose is the amount that it would have had to pay if it had paid the claim properly in the first place, and perhaps some attorney fees. Try and find an affordable attorney with those ground rules.The real culprit in the “dark side” of ERISA plans are our employers. Currently, there are approximately 148 million Americans, including approximately 9.6 million Texans, whose medical care is paid for through ERISA-covered plans sponsored by employers. The employer may “buy” an HMO type plan, hire a third-party administrator, or administer the plan internally. Our employers are calling the shots on our health-care, but hiding behind the actions of others. The plan fiduciary has the authority to override the “benefit coverage” decision, but doesn’t advertise this option, and seldom exercises that discretionary authority.

The private-insurance HMO industry cleaned up its act in Texas once we were given the right to sue. No avalanch of lawsuits ensued, as had been warned, but the threat of litigation seemed to be enough to bring ethics back into their business practices.

The same thing needs to happen for ERISA plans. Federal judges for a number of years have been calling for Congress to modify ERISA; eliminate the pre-emption clause or allow punitive damages. There is not one Representative or Senator that has not been deluged with requests to take these actions. However, the insurance lobbying effort seems to ensure inertia.

Many argue for ERISA status quo; predicting “an avalanch of lawsuits” or employers no longer offering health insurace. As we’ve seen in Texas, just the threat of litigation eliminated the unethical practices. For the employers that stop offering health insurance; they've not been offering much anyway.

This travisty in ERISA has been around since 1974, with no meaningful Congressional action. Come November 7th, every incumbant can count on NOT receiving my vote. I hope everbody else with an ERISA health benefit plan will do the same.

R.

501 Sycamore Lane, #327

Euless, Texas 76039

817-540-2272

rjamesmartin@...

http://www.angelfire.com/biz/romarkaraoke/james.html

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