Join The Conversation
Don Levit
11/17/2008 01:47 PM
Brian:
Thanks for letting me know more about the dynamics of "remanding." It sounds like nothing is really different the second time around.
What has been your experience when a case is remanded? Do the parties respond differently? Is the review changed to de novo from the arbitrary and capricious standard?
Does the insurer typically look at the claim in a more serious light?
How might a court respond if the insurer does not do so?
Don Levit
Brian S. King
11/17/2008 01:47 PM
Hi Don. My experience in dealing with remand is that the result rarely changes: the claim remains denied and the insurer does a better job of putting together a record of the prelitigation appeal process that can withstand the court's scrutiny. The standard of review remains at the arbitrary and capricious level. If the insurer was not more careful to adhere to ERISA's procedural requirements, I think you would see a much greater chance that a reviewing judge would take matters into their own hands the second time the case came up for review and more seriously consider reversing and granting benefits.
Don Levit
11/17/2008 01:47 PM
Brian:
Thanks for your insight.
Just because an insurer has the final right to deny or approve claims, and, thus is a fiduciary in the claims decision area, why would it be a fiduciary in any other area?
For example, I understand insurers, if they have any other fiduciary capacity, it would be to its entire pool of insureds, rather than to a particular group or participant.
Simply issuing a group policy to an employer, does not make a commercial insurer a fiduciary.
Don Levit
Brian S. King
11/17/2008 01:47 PM
I think you are right Don. The activity of the insurer must be reviewed carefully to determine if it falls within the scope of ERISA's fiduciary functions. Actions of the insurer that don't relate to the processing of a particular claim may not fall within the scope of ERISA's fiduciary duty provisions.
Don Levit
11/17/2008 01:47 PM
Brian:
I am on your side in attempting to bring the insurer into the fiduciary arena in as many areas as possible. That is why I believe the Voluntary Employees' Beneficiary Association (VEBA) to be a good match. Here the non commercial insurer is a fiduciary for the entire group, as well as the individual participant. Also, as a non commercial insurer, there is a lot of leeway in plan design, and the financing, that can be offered to its members.
Don Levit
Post A Comment
Articles
- Posted on 05/17/2011 CIGNA v. Amara
- Posted on 03/29/2011 Bloomberg Markets' article on ERISA
- Posted on 12/24/2010 James F. v. CIGNA Behavioral Health Inc.
News
- Posted on 07/11/2019 Timothy D. v. Aetna Health and Life Ins. Co.
- Posted on 06/24/2019 Family says insurance fails to pay for mental health coverage despite medical necessity
- Posted on 04/24/2006 Eliminating Discretionary Clauses in Insurance Policies