The U.S. Supreme Court recently declined to review a significant decision of the Second Circuit which (1) clarified the scope of California’s statutory ban on discretionary clauses in life and disability insurance contracts, and (2) clarified the meaning of a “full and fair review” under the version of ERISA’s claims-procedure regulation applicable to all claims
In Ruderman v. Liberty Mut. Grp., Inc., No. 21-817, 2022 WL 244086 (2d Cir. Jan. 27, 2022), the U.S. Court of Appeals for the Second Circuit ruled that reclassification of a claimant’s disability from one that is physically-based to one that is psychiatrically-based does not constitute an “adverse benefit determination” within the meaning of…
On July 1, 2021, the Departments of Health and Human Services (HHS), Labor, and Treasury (together, “the Departments”), and the Office of Personnel Management, issued Requirements Related to Surprise Billing; Part I (Interim Final Rules (IFR) with Request for Comments). This is the first set of regulations implementing the federal No Surprises Act (NSA), which was enacted as part of the Consolidated Appropriations Act of 2021.
Medicare and Medicaid already prohibit surprise billing/balance billing, and the NSA extends this protection to patients insured through employer-based and individual health plans. The NSA applies to fully insured and self-insured group health plans, including grandfathered plans, but they do not apply to excepted benefits (such as limited-scope dental and vision plans, and most health flexible spending arrangements), or to health reimbursement arrangements.
To be considered, written comments to the IFR must be received by 5 p.m. on September 7, 2021. If the agency is persuaded by any of the comments and so chooses, the rule can be amended in light of those comments.
Continue Reading Implementing Regulations for The No Surprises Act: Part I
Below is an excerpt of an article that has been published in the April edition of The Voice, a signature newsletter of the Defense Research Institute (DRI).
It has been over a year since the first COVID-19 cases were diagnosed, and the pandemic started to evolve. This article discusses new trends in COVID-19-related disability claims…
In Connecticut General Life Ins. Co. v. BioHealth Labs., Inc., No. 20-2312-CV, — F.3d –, 2021 WL 476111 (2d Cir. Feb. 10, 2021), Cigna, as administrator of employee health plans, sued six out-of-network lab companies for various fraudulent billing schemes, including fee forgiveness (not charging the patient for co-insurance, co-pays, etc.), unnecessary testing, and unbundling (separately billing for services that should be combined at a lower rate). In all, Cigna sought to recover $17 million in fraudulent or improper charges.
Cigna had completed its investigation that uncovered the alleged fraud in 2015, and began to deny payment of claims submitted by the labs. Two of the labs sued Cigna in Florida, but that action was dismissed and closed in 2017 for failure to exhaust administrative remedies. Cigna then sued the labs in Connecticut District Court in 2019, asserting “a variety of Connecticut state-law and federal claims,” all of which, according to Cigna, would have been compulsory counterclaims in the Florida action, had it not been dismissed. The district court dismissed the Connecticut complaint on the ground that all claims were time-barred under Connecticut’s three-year statute of limitations for tort claims.
The Second Circuit affirmed in part and reversed in part.
Continue Reading Second Circuit Addresses Limitations Periods Governing Fraudulent Billing Claims Against Non-Participating Providers
“When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean — neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master — that’s all.”
Lewis Carroll, Through the Looking Glass.
Disputes over the meaning of a word or phrase in an insured benefit plan almost always end up with the litigants feeling like they have gone through the looking glass to a place where the words you thought you understood all your life suddenly mean something entirely different.
The most recent example of this phenomenon is Carlile v. Reliance Std. Life Ins. Co., — F.3d –, 2021 WL 671582 (10th Cir, Feb. 22, 2021), where the dispute revolved around whether Mr. Carlile was an “active, Full-time Employee” when he became disabled.
Mr. Carlile had worked for the disability plan sponsor for about four years when he was given notice in March 2016, that he was being laid off as part of a reduction in force effective June 20, 2016. Accompanying the notice was a lump-sum payment of his wages for the notice period, and the confirmation that he no longer needed to come into work. Apparently, though, he continued to visit the office “at his convenience” until he was diagnosed with prostate cancer on May 31, 2016. Apparently his “last day of work” (whatever that means) was June 7, 2016. He filed a claim for LTD benefits, which Reliance Standard denied, finding that Mr. Carlile’s participation in the disability plan had terminated before June 7, because he was no longer an “active, Full-time Employee.”
Follow us through the looking glass as we watch the Tenth Circuit explore: why the meaning of “active, Full-time Employee” is not influenced at all by the plan’s definitions of “Actively at Work” or “Active Work;” why the court’s own prior decision defining “actively at work full time” in a similar context supported Reliance only “at first glance”; and why determining how much an employee worked during his “regular work week” apparently does not require proof of how much the employee ever really worked at all. At the end of the journey, it turns out that “active” really means nothing, because an “active, Full-time Employee” is exactly the same as a “Full-time Employee.”
Continue Reading Tenth Circuit Decides That An “Active, Full-time Employee” Is Entirely Different Than an Employee Who is “Actively at Work”
Plaintiffs seeking recovery of group disability benefits under ERISA-governed plans routinely argue that claim fiduciaries failed to adequately consider and/or account for decisions by the Social Security Administration (SSA) to award Social Security Disability Insurance (SSDI) benefits. As a result, federal courts are regularly tasked with evaluating the substance and sufficiency of discussions of SSDI awards (that are made a part of the administrative record) in adverse benefit determination letters.
Continue Reading Third Circuit Clarifies Sufficiency Of Discussions Of Social Security Disability Insurance Awards In Adverse Disability Benefit Determinations Under Pre-2018 ERISA Claims Procedure Regulation
In 2010, Chief Justice John Roberts observed that that ERISA is “an enormously complex and detailed statute.” Conkright v. Frommert, 559 U.S. 506, 509 (2010).
Some things don’t change. A recent decision out of the District Court of New Jersey exemplifies how even the most seemingly mundane procedural act — removal — implicates legal nuances with which courts continue to grapple.
Continue Reading D.N.J. Rejects Plaintiff’s Fee Request In Connection With State Court Remand Of Action Removed Under ERISA, Scaling Back Earlier Charge That Defendant’s Removal Was Nonsensical
Below is an excerpt of an article that has been published in the ERISA Report, the semi-annual newsletter issued by the Defense Research Institute (DRI) Life, Health and Disability/ERISA Committee.
What happens when COBRA meets COVID-19? While it may sound like the premise of a horror movie along the lines of “Snakes on a Plane”…
In Rutledge v. Pharmaceutical Care Mgt. Assoc., — U.S. –, 2020 WL 7250098 (Dec. 10, 2020), the Supreme Court held that ERISA’s broad express preemption will not reach a state law that focuses on the price of prescription drug benefits that a plan chooses to provide.
The particular question in Rutledge was whether ERISA preempted an Arkansas law regulating the price at which pharmacy benefit managers (PBMs) reimburse pharmacies for the cost of drugs covered by ERISA prescription drug plans. The Court described PBMs as
a little-known but important part of the process by which many Americans get their prescription drugs. Generally speaking, PBMs serve as intermediaries between prescription-drug plans and the pharmacies that beneficiaries use. When a beneficiary of a prescription-drug plan goes to a pharmacy to fill a prescription, the pharmacy checks with a PBM to determine that person’s coverage and copayment information. After the beneficiary leaves with his or her prescription, the PBM reimburses the pharmacy for the prescription, less the amount of the beneficiary’s copayment. The prescription-drug plan, in turn, reimburses the PBM.