Mark Scherzer testified on June 8, 2009, at a hearing held by the New York State Assembly Insurance Committee in Albany, in support of a bill that would reinstate the ability of the State Insurance Department to review and approve certain health insurance premium rate increases prior to their taking effect. Representing New Yorkers for Accessible Health Coverage, Mark pointed out that if insurers overcharge, individuals and small businesses might be forced to drop coverage, and they have no effective remedy at their disposal to contest the overcharges. Insurers, on the other hand, can always sue the Insurance Department if an appropriate rate increase is denied. The risks to consumers are therefore higher from lack of regulation than are the risks to insurers from having to live with regulation. Consumers, Mark said, “need the protective power of the state to give them a fighting chance when facing huge and powerful institutions like insurers.”

In a report issued on the day of the hearings, the Insurance Department identified tens of millions of dollars in overcharges by health plans under the current “file and use” system. Insurers have failed to police themselves effectively; they do not voluntarily correct the majority of those overcharges. By the time the State is able to act, it is often too late for the people who have gone without coverage. They may already have been damaged by foregoing necessary medical care. The press release announcing the report, including a quote from Mark, may be obtained at http://www.ins.state.ny.us/press/2009/p0906081.htm.

A recent decision by the Sixth Circuit Court of Appeals should help to level the playing field between employee-claimants and the insurance companies that insure and administer their employer-sponsored benefit plans. In American Council of Life Insurers v. Ross, the Court upheld Michigan regulations which bar insurance companies from issuing, delivering, or advertising insurance contracts or policies that contain so-called “discretionary clauses.” The Court found that the state could ban these clauses from insurance policies as part of its ordinary authority over state insurance regulation. It rejected the argument articulated by plaintiffs, a number of insurance industry groups, that the federal Employee Retirement Income Security Act, commonly referred to as ERISA, “preempted.” State law and deprived the State of the power to regulate in this area.

Insurers frequently insert discretionary clauses – which state, in effect, that the insurer (or claim administrator) will have discretionary authority when interpreting plan terms and making benefit determinations – into employer-sponsored medical plans, long-term disability plans, and life insurance plans. In disputes involving the denial or termination of benefits under ERISA-governed plans, courts have interpreted “discretionary clauses” in such a way as to place employees and plan participants at a substantial disadvantage.

What is wrong with discretionary clauses?

Our clients who seek benefits under employer-sponsored insurance plans are frequently stunned to learn of the far-reaching consequences of these discretionary clauses. Rather than entering the courtroom on an equal footing, claimants face the forbidding hurdle of having to show not just that the plan’s denial of benefits was wrong, but that it was “arbitrary and capricious." This standard is the one that typically applies when an administrative agency, such as Social Security or a Zoning Board, renders a determination. Application of the arbitrary and capricious standard means that instead of proving disability or the medical necessity of treatment by a preponderance of the evidence (that is, “more likely than not”) – as would be typical in an ordinary insurance dispute – a claimant must instead prove that the insurance company’s decision was “arbitrary and capricious” (that is, “without reason, unsupported by substantial evidence or erroneous as a matter of law”). As interpreted by some courts, this standard of review has been practically insurmountable. Claim denials have been upheld as long as there was “more than a scintilla” of evidence to support the insurance company’s decision.

The discretionary clause has also trumped other rules that favor the insured person. Before the advent of discretionary clauses, courts commonly recognized that insurance companies have much more control over the drafting of their policies than the consumers or businesses who buy coverage. They therefore used a rule called contra proferentum (literally, “against the one putting forth” the contract) to interpret ambiguous policy provisions: the ambiguous provision would be read against the drafting insurance company and in favor of coverage. However, the contra proferentum rule is typically discarded when a discretionary clause is present. Instead, courts have deferred to an insurance company’s interpretation of its own unclear or ambiguous policy provision so long as the interpretation is within the range of possible reasonable interpretations, even if there is a more obvious interpretation or the claimant’s reading of the provision is more reasonable.

Without a thorough understanding of ERISA and the significance of “discretionary clauses,” claimants may believe they are fully capable of presenting their own internal appeals to plan administrators when benefits are denied. They assume a lawyer can be hired later, when “going to court.” Nothing in the plan documents or insurance policies advises them that the internal appeal determination by the insurer can be given the hard-to-challenge status of an administrative agency decision and that proceeding without counsel at this early stage is potentially perilous and likely to determine the outcome of any subsequent lawsuit. Claimants are often financially strapped by the benefit denials, and are further deterred from seeking counsel because courts will award attorney’s fees solely for legal services rendered in litigation, not for those rendered during the internal appeal process.

Why should discretionary clauses be banned?

Critics of discretionary clauses have argued that they are inherently misleading because consumers are not made aware of their effect, and that they tend to undermine insurance consumers’ legitimate expectations. There have been too many examples of unfair denials of legitimate claims (often upheld under the “arbitrary and capricious” standard because claimants did not know how to construct a case or present evidence on their appeals) for regulators to ignore the issue.

The Michigan Commissioner of the Office of Financial and Insurance Services (“OFIS”), who adopted the regulations at issue in Ross, was taking the same approach as regulators and legislators in a number of other states. California led the way. New York’s Insurance Department issued Circular Letter 8 in March, 2006, imposing restrictions similar to those in Michigan. The Department banned “discretionary clauses” in health and disability policies because they “encourage misrepresentation or are unjust, unfair, inequitable, misleading, deceptive or contrary to law…” Under pressure from the insurance industry, however, the regulations were withdrawn several months later, effective June 29, 2006.

Insurers and their advocates have argued that discretionary clauses are not a problem because courts can and occasionally do rule in favor of claimants under the arbitrary-and-capricious standard triggered by such clauses. This argument fails to address the central rationale for such regulations. The question is not whether claimants are capable of overcoming discretionary clauses in exceptional cases, but whether it is fair for insurers, through use of technical terms that most claimants and policyholders will not understand, to transform what was intended to be an inexpensive, even-handed process of internal claim appeals into a quasi-judicial process in which the lay claimant’s technical errors, such as gaps in evidence or expert witness support, can have disastrous consequences.

State “no discretion” regulations are a reasoned attempt to address a problem of unfair and deceptive practices, an endeavor well within the traditional scope of state insurance regulation. To our knowledge, the Sixth Circuit’s decision in Ross, issued on March 18, 2009, is the first by a federal appeals court to uphold the validity of such state-enacted “no-discretion” regulations. Its decision is very good news indeed.

Post submitted by A. Christopher Wieber

Twenty five thousand workers are losing their jobs every week in New York State. With unemployment often comes the loss of health coverage and other employee benefits. To help New Yorkers understand their rights to maintain health coverage after they have been laid off or fired, the United Hospital Fund has published a free guide, "Hard Times and Health Insurance: Staying Covered When You Lose Your Job." The booklet, available as a free download on the United Hospital Fund's website, was co-authored by Mark Scherzer and Peter Newell, the co-director of United Hospital Fund's Health Insurance Project.

The booklet gives a detailed description of your rights to various types of coverage when regular coverage through employment ends: a special enrollment period in a spouse's or parent's health coverage, COBRA coverage in your former employer's plan, continuation coverage in New York state insurance policies not subject to COBRA, conversion policies and the purchase of individual coverage. It tells you how to take advantage of the new federal subsidies under the terms of the American Recovery and Reinvestment Act (ARRA) that will pay 65% of the COBRA premiums for up to 9 months for people who involuntarily lost their jobs after September 1, 2008. It also lists other sources of support for COBRA premiums which were passed as part of the federal stimulus package or are provided by the State.

Individuals who are laid off, who are losing their coverage through domestic partners or family members, or who work for companies that go bankrupt will all find useful information in this booklet. Financial support for publication of the guide was provided by the New York State Health Foundation, whose mission is to expand health insurance coverage, increase access to high-quality health care services, and improve public and community health.

Post submitted by Mark Scherzer

This week, New Yorkers for Accessible Health Coverage ("NYFAHC") and the New York Immigration Coalition (the "NYIC") jointly published an issue brief co-authored by Mark Scherzer and Jenny Rejeske, examining health coverage for immigrants in New York.

The work was funded by a grant from the New York State Health Foundation, which contemplates the publication of several issue briefs. Over a third of immigrants are uninsured, and immigrants -- including those with serious illnesses and disabilities -- account for one quarter of all the uninsured in New York. The issue briefs will examine various existing barriers to coverage and opportunities to lower those barriers and increase immigrant coverage.

This first brief analyzes the major proposals for expanding health coverage submitted during the Partnership for Coverage process initiated by the Governor in 2007, and those which are currently being modeled by the Urban Institute for the State. It concludes that while none of the proposals would be likely to diminish immigrant coverage, none of them adequately addresses the barriers which uniquely affect immigrants. If special provisions are not included in the design of any coverage expansion plan, immigrants are likely to remain disproportionately uninsured, and the goal of achieving truly universal coverage will remain out of reach.

A full copy of the report is available at the Center for the Independence of the Disabled in New York ("CIDNY") website. Click here to go directly to the report (requires Adobe Acrobat).

Post submitted by Mark Scherzer

Post submitted by Mark Scherzer