Insurance Law Commons^™

The Role Of Erisa Preemption In Health Reform: Opportunities And Limits, Peter D. Jacobson

O'Neill Institute Papers

The Employee Retirement Income Security Act (ERISA) is a federal law regulating the administration of private employer-sponsored benefits including health benefits (i.e., health insurance offered by an employer). In general, since the federal government has exercised its authority to preempt state regulation of the administration of private employer-sponsored health plans, states are blocked from enforcing laws interfering with ERISA.

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 …

The Purchase Of Insurance Across State Lines In The Individual Insurance Market, Stephanie W. Kanwit

O'Neill Institute Papers

Proposals to allow the purchase of insurance across state lines (PASL) have gained some support in recent years. Health insurers have traditionally been allowed to sell a policy only within the state that approved and regulates that particular policy. PASL would allow insurers to sell a policy approved in one state to people residing in any state.

Any federal legislation to enact PASL in an individual insurance market would have to address two main legal considerations: 1) the McCarran-Ferguson Act, which allows the states to retain their regulatory authority over insurance, and 2) a constitutional prohibition against the commandeering of …

Entitlements: Not Just A Health Care Problem, Andrew G. Biggs

The University of New Hampshire Law Review

[Excerpt] “A new consensus on entitlement reform has developed in Washington: rising per-capita health care spending is the only real crisis besetting the government‘s entitlement programs, while America‘s aging population and Social Security play minor roles at best. Some cite this view to shift the policy emphasis from entitlement cost control to the restructuring of the U.S. health sector, including private health care. But this new consensus is flawed. Using standard accounting practices and including all major government entitlement programs, population aging will play an equal role with health care cost growth over the next seventy-five years and a significantly …

Universal Health Care, American Pragmatism, And The Ethics Of Health Policy: Questioning Political Efficacy, Daniel S. Goldberg

The University of New Hampshire Law Review

[Excerpt] “This article will explore the conceptual implications of applying ethical critique and analysis to health policy. This is not to imply any reductionist conception of health policy in which ethics is absent. As Deborah Stone and John W. Kingdon both note, policy is fraught with ethical implications, and value prioritization is a sine qua non for health policy. Nevertheless, I wish to suggest that there are some conceptually significant distinctions in thinking of the ethics of health policy as opposed to thinking separately about ethics and about health policy. Moreover, these distinctions themselves are of value, both in thinking …

Children's Health Insurance Program: The Dynamics Of Federalism And Health Care Policy, Erik White

Political Science Theses and Capstones

On February 4^th, 2009, President Obama signed into law the reauthorization of the Children Health Insurance Program. The federal government will now spend 30 billion dollars towards the goal of ensuring that more children in the United States are insured. I investigate this particular health care policy and look at the different dynamics that affect the ultimate goal of universal health insurance for children. Because this program allows for state flexibility under broad federal guidelines, one is able to look at individual states, and their particular actions and characteristics, to determine the best approach to insuring the most …

The Paternalistic Ideology Of Erisa And Unforgiving Courts: Restoring Balance Through A Grand Bargain, Edward A. Zelinsky

Articles

No abstract provided.

The Effects Of Tort Reform On Medical Malpractice Insurers’ Ultimate Losses, W. Kip Viscusi, Patricia Born, Tom Baker

Vanderbilt Law School Faculty Publications

Whereas the literature evaluating the effect of tort reforms has focused on the impact of reforms on insurers' reported incurred losses, this article examines the ultimate effects of reforms using the developed losses from a comprehensive sample of insurers writing medical malpractice insurance from 1984 to 2003. Noneconomic damages caps are particularly influential in reducing medical malpractice losses and increasing insurer profitability. The long-run effects of these reforms are greater than insurers' expected effects; for example, 5- and 7-year developed loss ratios are below the initially reported incurred loss ratios for those years following the enactment of noneconomic damages caps. …

When Patients Say No (To Save Money): An Essay On The Tectonics Of Health Law., Mark A. Hall, Carl E. Schneider

Articles

The ultimate aim of health care public policy is good care at good prices. Managed care stalled at achieving this goal by trying to influence providers, so health policy has turned to the only market-based option left: treating patients like consumers. Health insurance and tax policy are now pressuring patients to spend their own money when they select health plans, providers, and treatments. Expecting patients to choose what they need at the price they want, consumerists believe that market competition will constrain costs while optimizing quality. This classic form of consumerism is today's watchword. This Article evaluates this ideal type …

Hedging The Irs -- A Policy Justification For Excluding Liability And Insurance Proceeds, Jeffrey H. Kahn

Scholarly Publications

Uncertainty about tax results is an ever-present obstacle to business transactions despite the extensive number of Internal Revenue Code sections and Treasury Regulations. Some insurance companies now provide an insurance product to protect taxpayers against adverse tax consequences from proposed transactions. Ironically, this new insurance product, labeled “tax insurance,” poses uncertain tax consequences itself This Article argues that if the adverse tax consequences arise (that is, the taxpayer has additional tax liability) and the insurance company is contractually required to cover that liability, the tax insurance proceeds are not includable in the insured’s gross income. As part of the reasoning …

Insurance Policy As Statute, The, Jeffrey W. Stempel

McGeorge Law Review

No abstract provided.

Jumping In The Deep End? An Analysis Of The North Carolina Health Insurance Risk Pool, Megan G. West

Campbell Law Review

No abstract provided.

Vebas To The Rescue: Evaluating One Alternative For Public Sector Retiree Health Benefits, 42 J. Marshall L. Rev. 879 (2009), Susan E. Cancelosi

UIC Law Review

No abstract provided.

Energy Policy, Intellectual Property, And Technology Transfer To Address Climate Change, Elizabeth Burleson

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

The Court Of Appeals For The Fifth Circuit: A Review Of 2007-2008 Insurance Decisions, Willy E. Rice

Faculty Articles

The Fifth Circuit Court of Appeals decided a considerable number of insurance-related controversies between June 2007 and May 2008. Arguably, the most important, comprehensive decisions are discussed-nineteen insurance cases that originate in just five federal district courts. Generally, the Fifth Circuit decided familiar questions of law and fact. More specifically, the following types of procedural and substantive conflicts appear in the nineteen insurance decisions: (1) one case involving the constitutionality of a Texas insurance statute; (2) two federal preemption and removal controversies involving the Employee Retirement Income Security Act (“ERISA”); (3) two disagreements requiring the court of appeals to make …

Toward National Uniformity In The Treatment Of Public Insurance Adjusters Under State Unauthorized Practice Of Law Provisions, Clayton P. Solomon

Student Articles and Papers

At present, forty-four of fifty states, plus the District of Columbia, license public insurance adjusters to assist policyholders in the settlement of claims for property loss under insurance contracts. In the six states that do not license public adjusters, however, state authorities may at any time conclude that the profession as a whole, by its very nature, constitutes the unauthorized practice of law (UPL). Arkansas flatly prohibits public adjusting on this basis.

By restricting public adjusting activities to members of the bar, policyholders are obliged to pay higher fees for legal representation where the services of a non-attorney adjuster would …

Common-Sense Construction Of Unfair Claims Settlement Statutes: Restoring The Good Faith In Bad Faith, Victor Schwartz, Christopher E. Appel

American University Law Review

This Article proposes to balance the scale by providing principles for the reasonable construction of bad-faith and unfair claims settlement practices in statutes applicable to insurance. Part I examines the history and development of bad-faith law, and discusses the common structure of statutes giving rise to badfaith settlement claims. Part II presents general principles courts may apply to resolve an action alleging bad faith, and specific principles courts may apply to address common issues with many states’ statutes. Part III then evaluates the public policy involved in applying such principles to first-party claims where the insured suffers an injury and …

Creating A Paternalistic Market For Legal Rules Affecting The Benefit Promise, Brendan Maher

Faculty Articles and Papers

Notwithstanding the fact that ERISA was enacted to protect employee benefits, courts have narrowly construed the relief available when benefits are denied, out of concern that a stronger remedy would be too costly for the system to bear. Judges, I argue, are ill-equipped to make this policy judgment. Instead, a regulated, subsidized, paternalistic market should be created to permit the benefit players themselves to choose and price the strength of the remedy they desire. This is a superior means to reach the right level of remedial strength for the most players. To protect against undesirably weak remedial options being selected, …

The Patient Life: Can Consumers Direct Health Care?, Carl E. Schneider, Mark A. Hall

Articles

The ultimate aim of health care policy is good care at good prices. Managed care failed to achieve this goal through influencing providers, so health policy has turned to the only market-based option left: treating patients like consumers. Health insurance and tax policy now pressure patients to spend their own money when they select health plans, providers, and treatments. Expecting patients to choose what they need at the price they want, consumerists believe that market competition will constrain costs while optimizing quality. This classic form of consumerism is today's health policy watchword. This article evaluates consumerism and the regulatory mechanism …

Defeating The "Step-Down" Clause In Auto Insurance, Greg Munro

Faculty Journal Articles & Other Writings

This article addresses the increasingly occurring situations where "step-down" clauses are inserted in auto policies to defeat coverage for particular classes of claimants. The article points out that step-down clauses that reduce the recovery of family members to minimum limits and protection of permissive users to minimum limits are subject to challenge for being unfair, unconscionable, violative of public policy, violative of reasonable expectations, and for creating ambiguity in an auto policy, and as such, need to be scrutinized by the Montana Supreme Court.

The Terrorism Risk Insurance Act: An Industry-Government Partnership, Jeffrey E. Thomas

Faculty Works

No abstract provided.

Federalization Snowballs: The Need For National Action In Medical Malpractice Reform, Abigail Moncrieff

Faculty Scholarship

Because tort law generally and healthcare regulation specifically are traditional state functions and because medical, legal, and insurance practices are highly localized, legal scholars have long believed that medical malpractice falls within the states' exclusive jurisdiction and sovereignty. Indeed, this view is so widely held that modern legal scholarship takes it for granted. Articles on general federalism issues use medical malpractice as an easy example of a policy in which federal intervention lacks functional justification, and articles that focus on federalization of other tort reforms use medical malpractice as an easy foil, pointing out that the uniformity interest that justifies …

Restoring Sanity To Subrogation After Sereboff, Holly Ludwig

Nevada Law Journal

No abstract provided.

To Pay Or Not To Pay: The Nevada Slayer Statute And The Insurance Companies' Dilemma, Alissa Macomber

Nevada Law Journal

No abstract provided.

Ending Jim Crow Life Insurance Rates, Mary L. Heen

Law Faculty Publications

This Article tells the story of the rise and fall of explicit race-based pricing practices as American life insurance companies responded to changes in the social, economic, and legal status of former slaves. The role of law in that story, from the Civil War to the beginning of this century, illustrates the complex interaction between civil rights reform and private commercial markets. Despite early laws prohibiting race-based life insurance rates, racial discrimination persisted in various forms for over a century due to the strength of the underlying racial ideologies, the rhetorical power of actuarial language, and the structure and regulation …

Review Of Reforming Medicare: Options, Tradeoffs, And Opportunities, Jill R. Horwitz

Reviews

Medicare needs fixing. The program has its strengths; it is popular among beneficiaries, has very low administrative costs (maybe too low), and, since its inception, has greatly reduced financial risk exposure among beneficiaries. Nevertheless, it is unaffordable and inefficient. Jeanne Lambrew and Henry Aaron take up both of these challenges for Medicare reform in great detail in Reforming Medicare.

The Work/Family Balance: New York's Struggle To Harmonize Domestic And Employment Spheres, Kerry Anne Hoffman

Cardozo Journal of Equal Rights & Social Justice

The note examines the challenges faced by American workers in balancing work and family responsibilities, highlighting the limitations of the Family and Medical Leave Act (FMLA) and advocating for the implementation of paid family leave policies. It emphasizes the need for both federal and state-level reforms to address the financial and societal barriers that prevent employees, particularly low-income families and single parents, from utilizing unpaid leave. The note also explores the progress made by states like California, New Jersey, and Washington in enacting paid family leave legislation, while noting the ongoing political opposition to such measures in New York. It …

The Devil Made Me Do It: The Corporate Purchase Of Insurance, Victor P. Goldberg

Faculty Scholarship

Despite the fact that public corporations ought to be risk neutral, they often carry insurance. This note first considers why insurance (or more precisely, the package of services provided by insurance companies) might create value, regardless of the risk preferences of managers, shareholders, or other corporate stakeholders. One motive is that their contractual counterparties – buyers, lessors, and lenders – require that they carry insurance. Three explanations for why the requirement might be value enhancing are proposed.

The Insurance Policy As Thing, Jeffrey W. Stempel

Scholarly Works

Insurance policies are a type of contract. But characterizing them only as contracts misses much of the richness of the insurance arrangement, policyholder-insurer relations, and the degree to which insurance policies, which are heavily standardized, are designed to perform a particular function. Because of their mass standardization and deployment to address particular risk management issues, insurance policies are in many respects like products or chattels. Insurers and the insurance trade press in fact frequently speak of a line of insurance "products" or a new "product" being introduced to address an emerging risk. Appreciating this aspect of the insurance policy can …

Remarks: Neuroscience, Gender, And The Law, Stacey A. Tovino

Scholarly Works

These remarks, delivered at the Neuroscience, Law, and Government Symposium held at the University of Akron School of Law in 2009, explore how stakeholders are using advances in the neuroscience of three gender-specific and gender-prevalent conditions (the postpartum mood disorders, premenstrual dysphoric disorder, and eating disorders) to secure health care benefits under group health plans and individual health insurance policies and to push for the inclusion of these conditions in mental health parity legislation.

The "Other" Intermediaries: The Increasingly Anachronistic Immunity Of Managing General Agents And Independent Claims Adjusters, Jeffrey W. Stempel

Scholarly Works

This article addresses the "other" intermediaries involved in the administration of insurance policies, specifically "downstream" intermediaries, who are engaged in the administration of insurance claims. The focus is on managing general agents, third-party administrators and independent contractor claims adjusters, who perform the nuts-and-bolts tasks of the insurance industry, and are generally less well compensated than commercial insurance brokers. Since these "other" intermediaries are immune from judicial claims by policyholders, they are also less incentivized to perform their duties well. The article argues that, in order to improve the claims process, the "other" intermediaries should be held accountable for their misconduct, …