LTD Delay………..

Delays, Denials & Deceptions
The truth about LTD insurance
By Annie Bloom

Reprinted by permission from The CFIDS Chronicle.
© copyright 1996 The CFIDS Association of America

Few illnesses are as prolonged and as disabling as chronic fatigue and immune dysfunction syndrome (CFIDS). Our unique complex of symptoms can cripple us physically, mentally and emotionally, draining not only our energies, but our financial resources as well. No current treatment is totally effective against this devastating affliction, and a cure may be far off on the horizon. If there has ever been a need for insurance to replace income lost to prolonged disability, we should surely be its beneficiaries. Yet despite our best efforts to provide convincing medical evidence, it appears that a disproportionate number of our claims for long-term disability (LTD) benefits are denied.

Trouble in the Mailbox

A chill ripples through me when I hear the mail drop through the slot onto the floor. The sound of the brass flap slamming shut against the metal jamb brings me reluctantly to my feet, and I’m slightly breathless as I pick up the pile of letters. Although I am waiting for my LTD claim to be approved for CFIDS, I’m relieved when none of the envelopes bear the etched lighthouse logo of my former employer’s insurance carrier. After three years of delays, denials and distortions, I’ve learned to expect trouble. This mailbox scenario is repeated daily in homes and apartments throughout America. More than a hundred claimants I’ve encountered in support groups, on-line forums and Internet mail groups, all disabled by CFIDS and the closely related conditions of fibromyalgia (FM) and multiple chemical sensitivities (MCS), have shared their stories of anger, frustration and disappointment with me. All expected to begin receiving benefits soon after filing claims supported by physicians’ assertions that they suffered from a disabling physical illness and were too ill to work.

After struggling through elimination periods of three to six months before becoming eligible for long-term disability benefits, almost all of these very sick and financially challenged patients have been forced to wage prolonged and costly legal battles with insurance companies which have broken their promise to provide financial security in the unlikely event of a life-challenging, career-shattering illness. Although many insurance companies are involved, these claimants’ experiences are strikingly similar.

An informal survey of more than 100 persons with CFIDS (PWCs) struggling with their LTD carriers was taken by the author of this article. Most were repeatedly delayed another four to six months, with some waiting a year or longer for payments to begin. Others received no benefits at all. Insurers insisted 53% of the claimants were “mentally ill,” limiting their benefits to 24 months; 25% were told they had “no objective evidence of disability” and paid nothing; 10% were persuaded to accept small settlements in exchange for dropping their claims. Only 12% of those who applied are currently receiving benefits for physical illnesses, yet even these fortunate claimants report being subjected to repeated medical evaluations, surveillance, harassment and the abiding fear of being cut off.

Claimants who succeed in the battle for benefits tend to be savvy, articulate and persistent individuals with the resources to obtain sophisticated medical evidence and aggressive attorneys. Poorer, older, less-educated and extremely ill claimants seldom fare as well. The sickest and least privileged among us may be easily brought down by insurance company employees who find them fair game for harassment, deception and intimidation. Their stories are the most disturbing I have encountered.

Your Condition is Subject to a Two-Year Limit

Most LTD policies contain a two-year limitation for benefits paid due to mental or nervous conditions, and insurance company employees have learned how to steer our claims into this category. More than half of those who claim benefits for CFIDS, FMS or MCS are labeled mentally ill, often by an on-site physician who has never seen the claimant and whose identity and qualifications are unknown. If the claimant’s long list of CFIDS symptoms includes depression, anxiety or panic attacks, these symptoms will be magnified, while pages of medical evidence supporting the claimant’s physical disability may be ignored. If the claimant is being treated by a psychotherapist or uses antidepressants for symptomatic relief, the insurer may insist that the claimant’s primary condition is psychological. The highly restrictive criteria developed to screen patients for research purposes are widely misused by insurers who insist that the presence of any past or current psychiatric diagnosis precludes a finding of CFIDS.

A CFIDS patient wrote: “Not only did my insurer insist that my symptoms were due to major depression, but they also demanded that I be under the care and treatment of a psychologist or psychiatrist, and that I provide a letter certifying disability from one of these doctors before they would pay any benefits.” A healthcare worker, still hoping to return to work, was deeply distressed about the insurance company’s diagnosis, and agreed to anything her claims representative demanded in exchange for assurance that her employer would never be told she had been classified as mentally ill. Patients and their physicians have even been promised faster approval of claims if they apply for benefits on the basis of depression instead of CFIDS. In September 1995, an insurance company field representative sat in a claimant’s living room and stated, “From the beginning, we have considered CFS a mental and nervous disorder, therefore limiting payment to two years.”

Accidental disclosure of confidential information is often used to intimidate employees applying for medical and disability benefits. Despite assurances that medical information will not be shared with employers, letters from disability insurers to claimants discussing their alleged psychiatric conditions are sometimes copied to employers, violating claimants’ rights to privacy. The American Psychiatric Society has documented many instances of employee medical and psychiatric information being placed in the hands of employers or coworkers with embarrassing and even tragic results. In the book Privacy in America, David Linowes reports that some insurance companies prefer to have claims processed through employers’ personnel departments as a way to pressure employees not to use their insurance.[1]

Your Symptoms are All Subjective

Those we interviewed who managed to escape the mental illness classification may be denied because the insurer insists that their subjective symptoms do not provide objective evidence of disability. While there is no single method of denial applied to all claimants, and new excuses to deny claims have developed over time, the policy of magnifying minor evidence to limit or deny claims has been consistent. One claimant was denied for not providing evidence of a sore throat, while others who documented this symptom were also denied. Another claimant was told that he must provide objective lab testing to support his CFIDS diagnosis. When he inquired what tests he needed to prove his claim, he was told that the company knew of none.

Sometimes the reasons for denials are trivial and appear to ignore all medical evidence. One claimant’s benefits were terminated immediately after a claims worker arrived at her home without an appointment and reported, “she did not look tired and had no dark circles under her eyes”; another was told she was “just tired and needed a vacation”. A woman at the peak of her career was accused of applying for disability because her husband had retired; another professional woman whose symptoms had gradually worsened over the years was denied because the insurer learned her position was going to be eliminated. A fibromyalgia patient lost his benefits after a surveillance team videotaped him working in his garden, an activity suggested by his doctor.

Independent medical examinations (IMEs) are frequently scheduled by insurers to rebut medical evidence provided by claimants’ physicians. Examiners selected by the insurers are often biased against or ignorant of CFIDS. Several claimants report that the examiner admitted knowing nothing about CFIDS or told them that “CFIDS was not a valid diagnosis”. A woman with such severe symptoms that she could stand for only a few minutes was pronounced capable of returning to work after a physical medicine specialist took measurements of her arms and legs. A patient with MCS was required to attend several examinations in an office which had just been remodeled and repainted. Yet another claimant learned her examiner had publicly stated that “CFIDS and MCS are both depression.” When she asked for another examiner, she was told he had been selected randomly from a list of qualified physicians by an independent contractor. A call to the independent contractor revealed that the insurer had asked specifically for this examiner and no other.

Social Insecurity

Most LTD contracts require beneficiaries to apply for Social Security Disability Insurance (SSDI) because SSDI benefits are deducted from the amount the LTD insurer must pay. Although perfectly legal and considered by the insurers to be smart business practices, many of the circumstances related to enforcement of this and similar clauses are suspect.

A middle-aged woman who was still capable of working part time was pressured by her LTD insurance company to apply for Social Security. When Social Security told her she had to leave her job to become eligible, she reluctantly gave up her career. Then the insurance company claimed she was “depressed” and allowed her only two years’ disability for her “mental disorder.” Another claimant was threatened with loss of her LTD benefits if she did not obtain Social Security Disability. When she was too ill to appeal a denial from Social Security, her LTD benefits were immediately terminated.

After learning that their SSDI benefits had been approved, several claimants reported that their LTD insurers sent them letters demanding immediate repayment of several thousands of dollars in LTD benefits, yet offered to cancel these debts if the insureds would agree to drop their LTD claims, giving up all rights to future benefits.

Some tactics used to investigate LTD claims violate rights to privacy guaranteed by the U.S. Constitution. One company sends claimants a routine supplemental information form; just above the signature line, in much smaller print, is a blanket release authorizing access by anyone designated by the insurer to all of the claimant’s records, including medical treatment and history; psychiatric records; drug and alcohol use; financial, credit and employment records; and any other data or records regarding the claimant’s activities. Claimants have complained after being followed and videotaped for several days at a time. Although it is illegal for insurers to order surveillance of persons to whom they are not paying benefits, one woman reported that her fiancé was not only surveilled, but received a background check as well. A family reported video surveillance so intrusive that it violated their marital privacy and caused their young children to become anxious and distressed.

Harassment of Physicians

Not even the physicians who treat us are exempt from harassment. On the chance that they might produce evidence which could be used to limit or deny claims, many physicians are required to submit their office notes and provide detailed reports at frequent intervals. When physicians are unable to keep up with these demands, their patients have been threatened with loss of benefits. One of the nation’s leading CFIDS experts, was required to explain the process by which he diagnosed CFIDS. The claims representative, who used the terms “chronic fatigue” and “chronic fatigue syndrome” interchangeably, declared his report “inconclusive as to a diagnosis of chronic fatigue.” Insurers have also deliberately distorted and taken out of context physicians’ statements in order to deny benefits to their claimants. Physicians who wrote to insurers protesting that their words had been twisted to mean the opposite of what was intended were simply ignored.

An Unreasonable Standard of Proof

Insurers apply a double standard to the evidence used in evaluating our claims. They insist that patients with CFIDS, fibromyalgia and MCS provide irrefutable objective evidence of their disabilities, yet reports from the insurers’ own medical departments are not subjected to the rigorous scrutiny which reports from claimants’ physicians must endure. The qualifications, medical experience and specialities of the insurers’ anonymous “in-house” physicians are unknown, and the outside physicians paid by insurers to perform independent medical examinations are often grossly unsuited to diagnose patients with these complex, poorly understood conditions. After waiting several months for a decision, a denied claimant may simply be told that “a preponderance of medical evidence points to a psychological illness, although this preponderance is never produced. Similarly, claimants who asked for ERISA reviews (see below) from one insurer received identical, boiler-plate letters asserting that “our decision still stands.” Those who asked what was needed to perfect their claims were never given this important information.

Insurers Protected by Federal Laws

The multi-billion dollar insurance industry is protected by a 1987 U.S. Supreme Court decision that greatly restricts the relief available to claimants in cases where disability insurance is provided by an employer. Employee benefits, including group LTD insurance, fall under the jurisdiction of an arcane federal law called the Employee Retirement Income Security Act of 1974, or ERISA (see “ERISA Protects Insurers” on page 33). Under the current reading of ERISA laws, claimants may sue to recover benefits in federal courts, but are precluded from filing charges of bad faith against insurance companies in state courts. Compensation for emotional distress or punitive damages is not allowed under a narrow interpretation of the definition of benefits. Thus, there is little incentive for insurers to resolve claims promptly or fairly, and attorneys are often reluctant to bring these cases to trial because court costs can approach or exceed potential recovery. Hiding behind a law originally intended to protect employee pensions, LTD insurers can delay, deny and distort our claims for years with almost total impunity.

In contrast, claimants with individual LTD policies have less difficulty with their claims because they can sue insurers for bad faith and receive compensation for emotional distress and punitive damages under state laws governing their policies. An examination of the approval rate for individual LTD claims and the standard of proof required for success may reveal substantially more ethical — and favorable — handling of CFIDS, fibromyalgia and MCS claims.

There are also powerful incentives for insurance company employees to deny claims: profitable companies pay substantial bonuses to employees who help them realize healthy profits. In February 1996, UNUM, the nation’s largest disability insurer paid $18 million in bonuses to employees who contributed to the company’s greatly improved performance in 1995.[2] And there is little doubt that ambitious claims managers can advance their careers by saving the company’s money the best way they know how: by denying or closing claims.

New Limits May Restrict Benefits

Until very recently, insurers have had to label claimants “mentally ill” to limit payouts to two years. As of this writing UNUM has received permission in 44 states to write new policies which limit benefits to two years for “self-reported symptoms, or illnesses where tests fail to identify an underlying cause”; applications are pending in the six remaining states. UNUM has also begun offering employers a discounted LTD policy which caps benefits as 12 months for self-reported illnesses. While UNUM doesn’t specify particular illnesses that would receive limited benefits, the restrictions would apply in some cases of back and muscle pain, fatigue, headaches and other complaints if medical tests fail to show an underlying cause.

Other companies are following UNUM’s lead. Standard Insurance Co. has drafted new policies limiting lifetime benefits to two years for “chronic fatigue conditions” or “allergies or sensitivities to chemicals or the environment.” Fortis lists specific conditions, such as chronic fatigue, that are subject to new limits. MetDisAbility plans to introduce a two-year limit for chronic fatigue syndrome within the next few months, and Cigna is developing contract language that would cap benefits for “self-diagnosed” illnesses at one or two years. UNUM “will decide on the basis of circumstances in individual cases.”[3]

The legality of the two-year mental illness limitation is currently being challenged under the Americans with Disabilities Act (ADA). Several cases are pending in federal courts, and the Equal Employment Opportunity Commission (EEOC) has asserted that it is improper to differentiate between mental and physical illness in LTD policies. It should be noted that the protections for disabled persons available under the ADA also apply to persons who are perceived as having a disability, for example, being labeled by an insurer as “mentally ill.” In this period of insurance industry consolidations,* joining coalitions with other disability rights organizations may help us fight all two-year limitations and other abuses by the powerful insurance industry.

In 1994, Dr. Michael Kita, medical advisor to UNUM, stated: “There has been a view that (chronic fatigue syndrome) is some form of mass hysteria or overdiagnosis by doctors or depression. It doesn’t look that simple anymore. There does appear to be something real happening.”[5] Unfortunately, the “something real happening” is that LTD claims are still being denied, even for claimants who meet CDC criteria and have satisfied stringent SSDI guidelines for total disability on the basis of CFIDS. While it is impossible to blame this situation on a single insurer, the largest, most aggressive companies are making it increasingly difficult for smaller companies to honor claims and still remain competitive with the industry giants. And as more companies are swallowed up through mergers and acquisitions, CFIDS claimants who have been receiving benefits for years are being put on notice that their payments may soon be terminated.


  1. Linowes, David, Privacy in America. University of Illinois Press, 1989. Page 122.
  2. Strosnider, Kim: UNUM workers share bonus. Portland Press Herald, Feb. 10, 1996.
  3. Jeffrey, Nancy Ann: Insurers curb some benefits for disability. Wall St. Journal, July 25, 1996.
  4. Strosnider, Kim: UNUM will survive, thrive. Portland Press Herald, Feb. 10, 1996.
  5. Johnson, Hillary: Osler’s Web. New York: Crown Publishers, Inc., 1996;655.

Annie Bloom (a pseudonym) has been afflicted with CFIDS, FM and MCS since 1990.

If you believe you have been treated unfairly by your LTD insurer: 1. Write to your state insurance commissioner, providing as much objective evidence of unfair treatment as possible. Let the insurance commissioner know that people with your illness are often treated unfairly by LTD insurance companies and that your case is only one of many unjustly denied benefits. You can find toll-free numbers for most state insurance commissioners by calling directory assistance.

1. Document the following strategies used to delay and deny claims:

  • Repeated and unreasonable delays in processing your claim, including “lost” information;
  • Ignoring your doctor’s diagnosis of a physical illness recognized by the CDC and defined by a specific set of symptoms;
  • Classifying your illness as “mental/nervous” despite reports from well-qualified physicians attesting to the contrary;
  • Insisting you have no objective evidence that you are disabled and unable to work, despite your physician’s insistence that forcing you to return to work would exacerbate your illness;
  • Basing your denial on an obviously biased or unqualified “independent medical examination” or the opinion of an “in-house” insurance company doctor who has never seen you.

2. Send copies of ERISA complaints to your representatives in Congress, asking them to take action against unfair treatment of disabled persons by insurance companies who have found protection in these laws. If your policy is governed by state law, write to your representatives in state government.

3. Support the efforts of local, national and on-line CFIDS organizations to secure more just treatment for CFIDS, MCS and FM patients by the insurance industry.

If you believe you have been wrongfully denied your ERISA, or non-ERISA, long-term disability benefits, give us a call for a free lawyer consultation. You can reach Cody Allison & Associates, PLLC at (615) 234-6000. We are based in Nashville, Tennessee; however, we represent clients in many states (Tennessee, Kentucky, Georgia, Alabama, Texas, Mississippi, Arkansas, North Carolina, South Carolina, Florida, Michigan, Ohio, Missouri, Louisiana, Virginia, West Virginia, New York, Indiana, Massachusetts, Washington DC (just to name a few). We will be happy to talk to you no matter where you live. You can also e-mail our office at
Put our experience to work for you. For more information go to<

Fibromyalgia and Long-Term Disability Claims


Our law firm fights on behalf of individuals to obtain their long-term disability benefits.

If you believe you have been wrongfully denied your ERISA, or non-ERISA, long-term disability benefits, give us a call for a free lawyer consultation.

You can reach the attorneys at Cody Allison & Associates, PLLC at (615) 234-6000. We are based in Nashville, Tennessee; however, we represent clients in many states (Tennessee, Kentucky, Georgia, Alabama, Texas, Mississippi, Arkansas, North Carolina, South Carolina, Florida, Michigan, Ohio, Missouri, Louisiana, Virginia, West Virginia, New York, Indiana, Washington DC (just to name a few). We will be happy to talk to you no matter where you live. You can also e-mail our office at Put our experience to work for you in obtaining your ERISA or non-ERISA long-term disability benefits. For more information go to


Why Disability Testing for Fibromyalgia is often Misleading: Advice for Fibromyalgia/Chronic Fatigue Syndrome Patients and their Disability Team.

By Richard N. Podell, M.D., M.P.H. and Wendy King, Ph.D., R.N., A.P.N.

Many people with severe fibromyalgia syndrome (FMS) or chronic fatigue syndrome (CFS) still wish that they could continue to work. However, patients may lack the physical and mental stamina to do so on a sustained basis—with sustained being the key word here. Even when severely impacted patients can exert themselves and “push through,” they experience a delayed flare-up of symptoms a few hours or a day later. Such flare-ups may last for several days, sometimes even longer. Unfortunately, the disability testing protocol used by insurance carriers has been structured to exclude all data about this delayed phase, when fibromyalgia flare-ups frequently occur. The Functional Capacity Evaluation, or FCE, is the most common disability test used, and it only collects data during the test period itself, and ignores pain and other symptoms that flare later.

Disability insurance companies certainly have the right to demand proof that a person is unable to work. Malingering and exaggeration are real problems with which insurers must contend. What’s more difficult to understand is why some insurers also dismiss the judgement of those who know best, the physicians, friends and neighbors of the patient, those who are best qualified to confirm how fibromyalgia impacts the patient’s life. Instead, insurers seek “objective” proof by actually watching patients exert themselves. Fair enough, in principle, but not fair or reasonable as often applied in practice, especially for patients with fibromyalgia or chronic fatigue syndrome (the latter also shares the delayed flare-up pattern).

Take, for example, Michael Hogan (a fictional name), a taxi cab driver who developed severe fibromyalgia about three weeks after an auto accident. He went through six months of trying different medications and sought help from physical therapy, cognitive therapy, and nutritional supplements. He felt slightly improved, but still could not work 40 hours a week. After one hour in his cab, his muscle pain flared. After driving a little longer, the pain overcame his concentration. If he pushed any further, he’d be in bed for most of the next day. When that happened, decent sleep was impossible and he would experience severe brain fog.

Michael’s long-term disability carrier asked him to take a functional capacity evaluation (FCE) to “see” if he could work. This was a series of light exercises that included toe-touching, carrying a ten pound weight, crawling, walking, and sitting. The evaluation lasted about two hours. Michael’s attorney, who has fibromyalgia herself, felt that this FCE testing protocol was, by its very nature, misleading, and would drastically underestimate Michael’s true disability. How, she asked, could two hours of testing reveal how Michael would handle an eight hour a day job, for 40 hours every week? She also complained that the FCE would not reflect any information in its report about how Michael felt and functioned that night, or through the next day, when his symptoms were most likely to flare. She asked for our professional opinion. We agreed with Michael’s attorney, and this is why:

First, Michael would have to be evaluated by the FCE on an average or above-average day. On his bad days, which averaged at least one a week, he just couldn’t make it to the testing. However, if Michael went to work only on his “good” days, he would probably only make it one day out of five—no one will hire a person who is that unpredictable. Yet current FCE testing does not reflect this problem. What is needed is a way to test a person on a “bad day,” without endangering the patient’s well-being. Otherwise, unrealistically optimistic results are generated that don’t reflect a person’s true abilities to hold down a job.

Second, the test in which Michael touches his toes for one or two hours can’t possibly predict how he will feel and function hours later, or the next day. Plus, the short test duration does not demonstrate whether Michael can keep this activity up for 40 hours a week. Performing short-duration exercises is the least of Michael’s problems; it’s the delayed phase flare-up response that is likely to prevent him from working on a steady basis. A more appropriate and valid test of ability for people with fibromyalgia needs to realistically mimic a real work week, and include information on how the patient feels during the flare-up phase.

Those who administer the FCE seem to believe that the current test really does predict everything. However, this faith is almost certainly wrong. I have searched the scientific literature and have not found a single scientific paper that even attempts to measure the accuracy of the FCE for predicting the long-term work capability of people with fibromyalgia.

People with severe fibromyalgia don’t have to be told this. As one patient put it, “To rule the delayed flare-up as ‘out of bounds’ makes no sense at all. If it weren’t so unfair, I’d almost describe it as silly.” For Michael, as for most people with severe fibromyalgia, the process of completing an activity or exercise can be difficult, but the hardest part is getting through the flare-up, which may be delayed 6, 23, or 24 hours after the activity that set it in motion. One important question remains: How, in good faith, could one use a test for fibromyalgia and chronic fatigue syndrome that ignores the delayed flare-up phase?

Part of the answer, I believe, is that the FCE was not designed for fibromyalgia, but for a very different set of problems. For example, stiff backs, stiff knees, angina, and emphysema are problems, which for the most part, quickly limit acute activity in ways that are quite clear to an observer. The delayed flare-up phase may seem fairly minor in comparison, at least for the uninformed observer. In addition, the FCE tool came into use long before fibromyalgia and chronic fatigue syndrome were recognized by most doctors.

Now that testers have had experience with conditions that have a delayed flare-up phase, why haven’t they incorporated this phase into the testing? Also, why do they persist in excluding delayed phase data? One potential answer is the power of inertia. People become attached to the tools that they are used to, even when those tools are not the best ones for the job.

This brings to mind a (very) old story. An inebriated, tipsy man was crawling on hands and knees under a bright street light. He was searching for his lost nickel.

“Where did you drop the nickel?” asked the passer-by.
“Oh, about half way down the block.”
“So why are you looking for it here?”
“Because the light is so much better.”

Like the poor man in the story, current practitioners of FCE are holding fast to a familiar tool, even though it leads them to look in the wrong place, and at the wrong time. Who has the power to redirect this bright light, so that it shines where and when it is needed? Technically, resolving the problem shouldn’t be difficult. Extend the test period so it realistically mimics a full work week that devises a test suitable for bad days, and most importantly, collects data on the delayed phase.

For the last three years we have been doing just this kind of testing under the Food and Drug Administration’s guidance, as part of our research testing of Ampligen, an experimental drug for chronic fatigue syndrome. Sensibly, the FDA requires that we routinely collect data on symptoms and performance for one week before as well as one week after each time we do an exercise stress test on a patient. We are confident we could adapt this tool to allow for better testing for the judgement of disability. In the end, it is imperative that new tools be developed and put to use for disability testing in delayed-phase medical conditions, such as fibromyalgia and chronic fatigue syndrome. We must find a way to redirect the street light.

About the Authors:

Dr. Podell and Dr. King practice together in Springfield and Somerset, New Jersey. They have a long-standing clinical interest in both fibromyalgia and chronic fatigue syndrome. Dr. Podell is a clinical professor in family medicine at the Robert Wood Johnson Medical School. Dr. King, an advanced practice nurse, has been an associate professor at the Robert Wood Johnson School of Allied Health Sciences. Click here to download a paper Dr. Podell presented to plaintiff and defense attorneys at the American Conference Institute seminar on disability litigation.

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What Could Be Causing Delayed-Phase Flares?

The answer might have something to do with muscle microtrauma or MMT. Robert Bennett, M.D., of Oregon Health Sciences University in Portland, first proposed the concept of MMT, in which small microscopic tears in the muscles may be occurring in patients during exercise or other physical activities. Ordinarily, the body produces extra growth hormone (GH) to repair these small tears, but he has determined that GH is abnormally blunted in people with fibromyalgia, and likely chronic fatigue syndrome patients as well. In our July 2001 issue of the Fibromyalgia Network Journal we describe Bennett’s growth hormone research and his treatment trial using GH injections. He found that after 6-9 months of GH therapy, patients began experiencing less pain with exercise. In a more recent study described in our July 2002 issue, we describe his research project using Mestinon (pyridostigmine) to reverse the GH blunting that takes place in patients with fibromyalgia. In fact, based on this recent project, Kim Jones, Ph.D., F.N.P., (one of the co-authors on the Mestinon report), was awarded a $2 million NIH grant to pursue a four-year study on the relationship of Mestinon treatment, GH secretion, and exercise/activity in people with fibromyalgia.

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Bennett’s Method for Assessing Function in Fibromyalgia

Like doctors Podell and King, Dr. Bennett believes that there is a delayed-phase flare that may occur in people with fibromyalgia, and that testing on a single day may not be adequate. Regarding the prediction of function in people with fibromyalgia, Bennett says that this is a difficult and controversial area. He further explains, “Function at any one point in time is dependent upon several variables: in particular pain level, fatigue level, mood changes, medication effects, litigation status, and motivation.” He further states that in his opinion, “The critical feature of dysfunction in fibromyalgia is the inability to perform reproducible and sustained activity over time. This means that function cannot be meaningfully assessed in a single evaluation session. Rather, the same functional measurements each need to be made on at least three consecutive days. Simple tests that we employ include the following: (1) straight arm abduction to the point of muscular exhaustion while holding a 1 kg weight; (2) while seated, perform knee extensions to the point of muscular exhaustion with a 2 kg weight attached to the ankle; and (3) standing up from a sitting position in a chair to the point of muscular exhaustion.”

The above tests are fairly simple to perform, but Bennett emphasizes that the testing must be repeated for at least three consecutive days to be meaningful for fibromyalgia patients. Similar to Dr. Podell’s views expressed in the above article, many patients may be able to perform the tests on the first day, but the testers need to look at a person’s abilities at least three or more days later to adequately determine whether they are able to sustain a job. In addition to looking at a person’s ability to perform a given set of exercises, Bennett also suggests that pre- and post-exercise pain levels be evaluated for each test day. Pain scores that escalate may also reflect problems with sustained function that would be necessary for maintaining a job.

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Tectonic Changes in Disability Law

By Joshua Potter, Esq., Pasadena, CA

There have been tectonic changes in the disability environment. By this, I mean that since the publication of the 1990 fibromyalgia syndrome criteria by the American College of Rheumatology, and the 1994 statement for chronic fatigue syndrome by Dr. Fakuda and others at the Center for Disease Control (CDC), little has changed in the disability landscape. There have been judicial skirmishes, insurance refinements, but the largest impact has been in the area of policy interpretation.

The late 1990s has seen interesting, but only minor changes in the way the disability programs address the fibromyalgia and chronic faigue syndrome communities. As early as October of 1998, there were signs within the Social Security Administration (SSA) that some Screening Attorneys were favorably disposed to granting disability for well-defined claims based on these syndromes. Just one month later, some Long-Term Disability policies were beginning to pay initial claims for fibromyalgia and chronic fatigue syndrome, providing that the documentation was sufficiently strong. These events were no more than the seismic precursors to momentous changes that have now been realized in 1999.

On the last day of April, 1999 the SSA issued new regulations that are as staggering as the initial ACR statement and the later Fukuda statement. Social Security Ruling 99-2p (referred to as SSR-99-2p) has caused more than a mere earthquake. It will shatter the entire landscape of disability for individuals afflicted with chronic fatigue syndrome and fibromyalgia. SSR 99-2p boldly announces that these syndromes “are medically determinable conditions.” This simple concept represents a vast breakthrough in appreciation. It is a bold declaration that legitimizes the clinical diagnosis. The requirements for SSR-99-2p are provided in the section below titled “Medically Determinable Impairment Requirements for Chronic Fatigue Syndrome and Fibromyalgia.”

During the last decade, patients have argued with uneven success that their pain and fatigue struggles are legitimate and real. They have struggled against professional gainsayers who have asserted that in the absence of a serological test or scan, the condition is merely a psychiatric manifestation and has nothing to do with clinical medicine. These practitioners, insurance companies, and judges who have invested themselves in the flat denial that illness can exist absent serologic studies must now reassess their position. As a matter of regulation within the SSA, chronic fatigue syndrome and fibromyalgia exist as a disease process. As such, these conditions can result in a finding of disability. SSR-99-2p is not the most complex regulation drafted, but it will require careful reading to appreciate.

SSR-99-2p will not open the floodgates for claims before Social Security. It will serve to exclude more than it includes at first. SSR 99-2p will need superior charting and greater attention to detail, especially by physicians as well as patients. Testimony will have to be more concise and narrowly focused. Within Social Security there will no doubt be some lag time in the application of the new regulation, but greater problems will occur in the mountains of charting that already exist and cannot be altered. It is in the future that the greatest change will occur. This new piece of regulation, as momentous as it is, nests within a series of other complex rules and regulations, and its application depends on demonstrating that the other regulations have been satisfied.

The only way that this most modest requirement can be accommodated is by having complete and thorough charting. Charting means historical medical records that detail the tracking of failed therapies as well as the documentation of symptoms and function. It will not only include one’s medical history, but also work history. Reliance on a shorthand in which the diagnosis appears unsubstantiated and unexplained throughout the chart will simply be unacceptable. The medical community must take heart that the Federal government has taken this momentous step. Physicians who make the diagnosis of fibromyalgia or chronic fatigue syndrome should no longer be subject to derision by their colleagues. But more important to the patient is that the constellation of symptoms needs to be featured within the chart. This is because the symptoms themselves play an important role in any disability determination, whether Federal or private.

A patient’s chart will be considered incomplete if it merely recites the diagnosis and the medications prescribed. Not only must the chart demonstrate that the patient meets the American College of Rheumatology (ACR) criteria for fibromyalgia or the Fukuda Standard in the case of chronic fatigue syndrome, but more importantly, what are the symptoms and complaints associated with that diagnosis? The diagnosis by itself is not the equivalent of disability and will never support a doctor’s comment that the individual is or is not disabled. The legal-medical-vocational amalgam of the sundry facts are what the disability system is predicated on.

As the SSA adjusts to the new rules, and judges become more familiar with SSR-99-2p, so too must the private long-term disability (LTD) carriers. Though the implications of SSR-99-2p are profound to Social Security, they will be revolutionary to the private insurance industry. The great LTD carriers will rapidly have to readjust their positions in light of the new law. LTD carriers will need to look squarely at the functional impact of fibromyalgia and chronic fatigue syndrome because the great debate over the meaning of “medically determinable” has finally been settled.

We stand at the threshold of a new environment. It is imperative that physicians and patients work together to provide clear and concise charting. These are exciting times in which we operate. It’s now time to focus on the diagnosis and consequences of these conditions. The battle to make fibromyalgia and chronic fatigue syndrome medically determinable diseases by the SSA has been won. Take the steps necessary to ensure that you and your health care team are complying with the documentation requirements set forth in SSR-99-2p, just in case you might need to rely upon this new ruling in years to come. Read the final section of this article for more information on what this documentation should include.

Medically Determinable Impairment Requirements for Chronic Fatigue Syndrome and Fibromyalgia

One or more of the following must be documented for at least six consecutive months:

  • Palpably swollen or tender lymph nodes on exam
  • Nonexudative pharyngitis (sore throat without signs of inflamation)
  • Persistent, reproducible muscle tenderness on repeated examinations, including the presence of positive tender points
  • There is considerable overlap of symptoms between chronic fatigue syndrome and fibromyalgia, but individuals with chronic fatigue syndrome who have tender points have a medically determinable impairment. Individuals with impairments that fulfill the ACR criteria for fibromyalgia (which includes the minimum number of tender points) may also fulfill the criteria for chronic fatigue syndrome. However, individuals with chronic fatigue syndrome who do not have the specified number of tender points to establish fibromyalgia may still be found to have a medically determinable impairment.

The following tests may be used to help establish a medically determinable impairment in individuals with chronic fatigue syndrome (and fibromyalgia if they meet the criteria):

  • Elevated antibody to EBV capsid antigen equal to or greater than 1:5120, or early antigen equal to or greater than 1:640
  • An abnormal MRI scan of the brain
  • Neurally mediated hypotension as shown by tilt table testing or another clinically acceptable form of testing
  • Others tests, such as abnormal sleep studies or exercise intolerance

How To Get A Copy of Your ERISA Benefit Plan

Our law firm fights on behalf of individuals to obtain their long-term disability benefits.  If you believe you have been wrongfully denied your ERISA, or non-ERISA, long-term disability benefits, give us a call for a free lawyer consultation. You can reach Cody Allison & Associates, PLLC at (615) 234-6000. We are based in Nashville, Tennessee; however, we represent clients in many states (Tennessee, Kentucky, Georgia, Alabama, Texas, Mississippi, Arkansas, North Carolina, South Carolina, Florida, Michigan, Ohio, Missouri, Louisiana, Virginia, West Virginia, New York, Indiana, Massachusetts, Washington DC (just to name a few). We will be happy to talk to you no matter where you live. You can also e-mail our office at Put our experience to work for you. For more information go to
Below is helpful information from the U.S. Department of Labor.


How to Obtain Employee Benefit Plan

Documents from the Department of Labor


Documents Available

The Employee Benefits Security Administration (EBSA) makes available through its Public Disclosure Room certain employee benefit plan documents and other materials required by the Employee Retirement Income Security Act of 1974 (ERISA). ERISA is a Federal law that is designed to protect the rights of millions of American workers and beneficiaries in private-sector pension plans, group health plans, and certain other employee benefit plans.

Visitors may view and copy the following ERISA-required documents or submit written requests and have the documents copied. Disclosure Room hours, copying charges and additional resources are listed at the end of this document.

ERISA Documents Available

Annual Report Form 5500. This report is required to be submitted annually by many ERISA-covered plans. It contains various schedules with information on the financial condition and operation of the plan. Certain entities in which plans invest or participate also file annual reports with the Department of Labor. These entities, called Direct Filing Entities or “DFEs,” include banks, common or collective trusts, insurance company pooled separate accounts, master trusts, group insurance arrangements and entities covered by Department of Labor regulation 29 CFR 2520.103-12. These reports include financial information regarding the DFE and a list of the investing or participating plans. Generally, the six most recent reports filed by employers or plan administrators are available. (Note: electronic copies of the data contained on all of the Forms 5500 and schedules filed each year are available for a fee by submitting a Freedom of Information Act request.)

Form M-1, Annual Reports for Multiple Employer Welfare Arrangements (MEWAs) and Certain Entities Claiming Exception (ECEs). Generally MEWAs are arrangements which offer medical benefits to the employees of two or more employers, or to their beneficiaries. An administrator of a MEWA generally files the one-page Form M-1 once a year. The form is generally due March 1 each year, but administrators can request an automatic 60-day extension to May 1.

Form M-1 first became effective with the 1999 plan year. The form contains general registration information including the states in which the entity operates and responses to questions regarding compliance with Part 7 of ERISA, including the Health Insurance Portability and Accountability Act of 1996, the Mental Health Parity Act of 1996, the Newborns’ and Mothers’ Health Protection Act of 1996, and the Women’s Health and Cancer Rights Act of 1998.

Plan administrators of MEWAs must file the required form for every year that the MEWA offers benefits for medical care for the employees of two or more employers. MEWAs that are insurance companies are exempt from the filing requirement.

Summary Plan Descriptions (SPDs) and Summary of Material Modifications (SMMs). SPDs are important disclosure documents prepared by the plan that describe, in understandable terms, the rights, benefits, and responsibilities of participants and beneficiaries in ERISA covered pension, health and other employee benefit plans. The SPD must include important information regarding the plan, such as information on how the plan works, eligibility requirements, what benefits the plan provides, and how those benefits may be obtained. SMMs describe changes made to the plan and changes in the information in the SPD.

Plan sponsors are required to automatically provide copies of these documents to plan participants upon enrollment and upon written request of a plan participant or beneficiary. ERISA also gives the Department of Labor the authority to request copies of these documents from plan administrators/employers on behalf of participants and beneficiaries.

The Taxpayer Relief Act of 1997 eliminates the requirement of plans to file SPDs and SMMs with EBSA. SPDs and SMMs filed with the agency before that date may be on file and are available upon request if they are maintained. If a plan participant or beneficiary wishes a more recent copy of the SPD or SMM, the agency will request a copy from the plan administrator.

Top Hat Plan Statements. This is a statement that an employer maintains a plan (or plans) primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees.

Advisory Opinion Letters. These interpret and apply ERISA to specific factual situations and are issued by PWBA in response to written requests for opinions by their assigned number.

Comment Letters. These present views from the public on ERISA regulations and exemptions from the prohibited transaction provisions proposed by the Department.

Announcements and Transcripts. These cover hearings held on ERISA regulations and for meetings of the Advisory Council on Employee Welfare and Pension Benefit Plans.

Apprenticeship and Other Training Plan Notices. This brief notice identifies the name and place where employees can get information about courses offered the by plan.

EBSA Notices

The following EBSA documents are also available in the Public Disclosure Room:

  • Advisory Opinion Letters
  • Comment Letters submitted in response to EBSA requests for information
  • Announcements and transcripts of public hearings
  • Investment Adviser Filings

How to Obtain Copies

The Form M-1, Annual Reports for Multiple Employee Welfare Arrangements (MEWAs) and Certain Entities Claiming Exceptions (ECEs), is available online at Users can search by plan name, sponsor name, employer identification number, or the state where the MEWA is headquartered or where the MEWA offers coverage. Copies are available by using the process that follows.

You may call, write or visit the EBSA Public Disclosure Room for copies of the documents mentioned. Generally, requests made in person may be picked up on the same day.

To help locate your plan documents, please provide enough information to assist EBSA in identifying the document, such as the name of the plan and the city and state in which it is located, the name of the multiple employer welfare arrangement, the approximate date of the hearing, etc., as relevant to the document.(1)

Written and phone requests are generally filled within 5 working days. Requests for documents related to more than five plans may take more time to process. SPD requests that require contact with the plan to obtain a copy may take 30 to 60 days.

Copying Charge

The copying charge is 15 cents per page.  Do not send advance payment or postage stamps with your request. We will mail an invoice with the materials. Visitors can pay in cash, by check or money order.

Records Authentication Certificate

Upon request, we can certify the authenticity of the documents requested. If the documents are not on file, a certificate to that effect can also be made available. (Note: Same day service is generally not available for this service.)

Address and Hours of Operation

U.S. Department of Labor
Employee Benefits Security Administration
EBSA Public Disclosure Room
200 Constitution Avenue, NW, Room N-1515
Washington, DC 20210
Tel (202) 693-8673
Hours: 8:30 am – 4:30 pm weekdays (except Federal holidays)


  1. The information we need to identify a plan, such as plan name and EIN, is an information collection request approved under Office of Management and Budget control number 1225-0059. You are not required to respond to an information collection request unless it displays a currently valid OMB control number. Providing this information is entirely voluntary. The time needed to provide the information is expected to average about 30 seconds.

This publication has been developed by the U.S. Department of Labor, Employee Benefits Security Administration. It is available on the Internet at For a complete list of EBSA publications or to order copies, call toll-free 866-444-3272. This material will be made available in alternate format upon request: Voice phone: (202) 693-8664, TTY: (202) 501-3911. This publication constitutes a small entity compliance guide for purposes of the Small Business Regulatory Enforcement Fairness Act of 1996.

Law and Medicine Intersect

HEALTH LAW AND ETHICS ERISA Litigation and Physician Autonomy
Peter D. Jacobson, JD, MPH
Scott D. Pomfret, JD
THE FEDERAL EMPLOYEE RETIREMENT INCOME SECURITY ACT (ERISA) looms like a colossus over the man- aged care environment. Originally enacted to regulate employer-sponsored pension plans, the statute also covers health care benefits established by self-insured employers (with few exceptions, such as for governmental employees). According to recent Department of Labor estimates, ERISA applies to approximately 125 million US citizens.1 ERISA has created a regulatory vacuum by preempting state regulation of managed care organizations (MCOs) and drastically limiting state medical liability lawsuits against MCOs, while providing minimal federal regulation in their place. 2-4 For physicians, ERISA preemption has indirectly caused courts to favor MCOs’ cost containment initiatives over traditional notions of physician autonomy. 5  The treatment a physician recommends is vulnerable to a managed care utilization management process largely unconstrained by state regulation or liability law, inevitably resulting in reduced physician autonomy. The consequences of ERISA preemption lie at the heart of proposed congressional patients’ rights legislation that would restore the primacy of the patient-physician relationship and permit state legal challenges to cost containment programs. At issue is control over physicians’ clinical decisions and the ability to challenge improperly operated cost containment programs.  Because ERISA plays a vital role in the relationship between physicians and MCOs, it is important for physicians to understand what ERISA is, how it operates, and how it influences clinical decision making and physician autonomy in the managed care era. In this article, we outline ERISA’s major provisions, analyze trends in ERISA litigation applicable to physicians, and conclude by discussing the policy implications and
significance of these trends for physician autonomy.  AN ERISA PRIMER Overview Congress enacted ERISA in 1974 primarily to regulate pension plans, but it also included health benefit plans within its scope. 6  ERISA’s goals are to establish uniform national standards, safeguard employee benefits from loss or abuse, and encourage employers to offer those benefits. To achieve these objectives, ERISA imposes strict requirements on pension plan administrators for reporting and disclosure, 7 participation and vesting, 8 funding, 9 and performance of fiduciary obligations.  10 ERISA does not mandate that employers offer benefit plans, but provides a structure for national uni-
formity of administration once such plans are extended. Only a few of these requirements apply to health benefit plans, in part because Congress did not pursue the impli-
cations of regulating both pension and health benefit plans under 1 statute. Nor could Congress have anticipated the dominance of the managed care model. As a result, ERISA provides almost no federal regulation of health plans. Nevertheless, ERISA has 3 provisions that directly affect physician autonomy: ERISA’s preemption clause, its limited remedial scheme, and its fiduciary duty obligation. Author Affiliations: School of Public Health, University of Michigan, Ann Arbor
(Mr Jacobson) and Ropes and Gray, Boston, Mass (Mr Pomfret). Corresponding Author: Peter D. Jacobson, JD, MPH, School of Public Health, Uni-versity of Michigan, 109 Observatory, Ann Arbor, MI 48109-2029 (e-mail: Health Law and Ethics Section Editors: Lawrence O. Gostin, JD, the Georgetown/ Johns Hopkins University Program in Law and Public Health, Washington, DC, and Baltimore, Md; Helene M. Cole, MD, Contributing Editor, JAMA.
The Employee Retirement Income Security Act (ERISA), enacted in 1974 to regulate pension and health benefit plans, is a complex statute that dominates the managed care environment. Physicians must understand ERISA’s role in the relationship between themselves and managed care organizations (MCOs), including how it can influence clinical decision making and physician autonomy.  This article describes ERISA’s central provisions and how ERISA influences health care delivery in MCOs. We analyze ERISA litigation trends in 4 areas: professional liability, utilization management, state legislative initiatives, and compensation arrangements. This analysis demonstrates how courts have interpreted ERISA to limit physician autonomy and subordinate clinical decision making to MCOs’ cost containment decisions. Physicians should support efforts to amend ERISA, thus allowing greater state regulatory oversight of MCOs and permitting courts to hold MCOs accountable for their role in medical decision making.
JAMA. 2000;283:921-926 ©2000 American Medical Association. All rights reserved. JAMA, February 16, 2000—Vol 283, No. 921
ERISA’s Preemption Clause Traditionally, states are responsible for regulating health care delivery, and litigation against health care providers is resolved under state law. Medical liability lawsuits are rarely heard in federal courts. ERISA alters the traditional approach by preempting state law, which means that state laws purporting to regulate health plans may not be enforced in any court. 11 In this context, state laws include legislation and regulations, such as those mandating particular benefit coverage, and most medical liability actions targeting MCOs.  Courts have interpreted the preemption clause broadly to prevent enforcement of state laws ranging from laws protecting the patient-physician relationship to litigation challenging how cost containment initiatives are implemented.  The courts have held that Congress intended such broad preemption of state law to allow a multistate employer to offer a single, nationally consistent plan to all its workers without the cost and inconvenience of complying with contradictory state regulations, legislation, or litigation. National uniformity conforms with congressional intent to keep the costs of administering an employee benefit plan (EBP) low to encourage employers to offer health care coverage. 12  In assessing whether a particular state law is prohibited, courts look sequentially to each of the 3 parts of the preemption provision. First, courts must decide whether the state law “relates to” an EBP. 13  In doing so, courts consider whether the challenged law burdens the administration of plan benefits or has only a remote impact on them. Courts generally hold that ERISA preempts state laws that bind employers or plan administrators to particular benefit choices or that preclude the uniform administration of an EBP.  14 For example, a state lawsuit challenging a benefit determination, such as
an MCO’s denial of additional hospital coverage, “relates to” a health plan because that challenge would require the court to interpret the plan’s benefits, hence binding the administrator to certain actions. But laws with only a remote or incidental effect on plan administration, such as a surcharge on hospital services, may not “relate to” the EBP.
A law is not preempted merely because it “relates to” a plan. Courts must also interpret 2 qualifying provisions, the savings clause and the deemer clause. ERISA’s savings clause provides that laws regulating the business of insurance, even if they “relate to” a managed care plan, will not be preempted. This allows states to continue to enforce state laws governing the business of insurance by saving state regulation of health insurance, such as solvency requirements, from preemption. In turn, the deemer clause qualifies the savings clause.  The deemer clause prevents states from deeming (or characterizing) an ERISA-covered plan as the business of insurance.
States may not characterize a self-funded plan as an insurer to circumvent the effect of the “relates to” clause.  As an example of how these terms interact, consider a state law mandating certain health insurance benefits. That law “relates to” an ERISA plan since it would involve the structure of plan benefits. Even though the legislation would be
saved from preemption insofar as it regulates EBPs that purchase traditional insurance policies, it would still be preempted if, for example, a state attempted to apply the statute to a self-funded EBP. Under the deemer clause, a self-funded EBP cannot be an insurer. ERISA’s Limited Remedies Although much state litigation is preempted, ERISA provides some relief for injuries to health plan participants through its civil enforcement scheme. A plan participant or beneficiary may bring a civil action against an administrator who fails to comply with a request for information about the plan, to recover claimed benefits, to enforce rights under the terms of the plan, or to clarify rights to future benefits. 15 A plan participant may also bring suit against a plan fiduciary who breaches any fiduciary duties and may seek to enjoin practices that violate ERISA or the terms of the plan. Even if victorious, a plan participant can usually only recover the amount of the benefits that should have been provided, as well as certain incidentals such as attorneys’ fees. This is a decidedly more limited remedy than what is usually available under state law, through which the patient might be able
to recover damages for any economic losses, non-economic damages for pain and suffering, and possibly punitive damages (especially in cases alleging bad faith insurance denial). 16  Take, for example, a challenge to an improperly denied benefit filed in state court. If the MCO successfully invokes preemption, the plaintiff will be forced to sue instead under ERISA’s limited civil enforcement scheme. Effectively, this insulates the MCO from exposure to monetary damages, except for what it would have paid (the amount of the denied benefit) in the first place.  Fiduciary Duties ERISA imposes a fiduciary duty on those who make discretionary decisions on behalf of the EBP. A fiduciary must discharge his/her discretionary functions “solely in the interest of the participants and beneficiaries” of the plan.  17  In many, but not all cases, 18 courts have held that MCOs are subject to this fiduciary duty when making certain decisions, such as reviewing the appropriateness of a physician’s treatment recommendations. 19 On the other hand, MCOs and employers are not considered fiduciaries for establishing or changing the terms of the plan. Thus, the fiduciary duty extends only to decisions made once the plan is in place.  20,21  Employers must provide whatever health benefits they promise but need not offer plans at all and can change what they offer af-
ter giving plan beneficiaries proper notice.  In exercising the fiduciary duty, an obvious problem is that the clinical needs of one patient may conflict with the
MCO’s economic interests. Increasingly, disappointed plan participants have sued for breach of fiduciary duty, often challenging the denial of physician-prescribed benefits, especially when there is a potential conflict of interest. 22
©2000 American Medical Association. All rights reserved.
To determine whether an MCO breached its fiduciary duty when denying plan benefits (ie, that the denial is not solely in the interest of the participant), courts use different levels of scrutiny based on the amount of discretion granted to the MCO under the EBP. Generally, courts are very deferential, upholding the plan administrator as long as the decision was not arbitrary and capricious. 23,24 In most cases, courts have equated compliance with the terms of the EBP as, by definition, acting “in the interests” of the plan participant. In this sense, the court limits its review to ensuring that the MCO reasonably comported with the terms of the EBP. 25 As a result, MCOs retain power vis-a-vis physicians by controlling the interpretation of EBP terms (including medical necessity). But in a case from which the plan profits directly from the denial, the potential conflict of interest must be considered a factor in deciding whether there was an abuse of the fiduciary’s discretion.
26 RECENT CASE TRENDS MCO Malpractice Liability
For many years, courts have monitored quality of care through medical liability lawsuits. Originally, physicians were the targets of such suits, then hospitals were added, and now MCOs have been held liable under state tort law. When a patient receives care under a health plan not governed by ERISA (as when a person buys his/her own health
insurance), MCOs have been held directly liable for their own actions, such as the failure to maintain safe and adequate facilities, select and retain competent physicians, oversee all patient care within the institution, and ensure quality care. 26 Managed care organizations can also be held vicariously (indirectly) liable for malpractice committed by physicians who are independent contractors. The primary factors affecting whether a court will impose vicarious liability include the amount of influence the MCO has over the clinical decision, patients’ perceptions of the relation ship between the physician and the MCO, and the manner in which the health plan is marketed. Managed care organizations operating in contexts other than ERISA may also be subject to state consumer protection or bad faith insurance laws for improper processing of claims that results in delayed or denied care. 16 In non-ERISA cases, courts are essentially following the pattern of establishing liability that was applied to hospitals beginning in the 1960s. 28 Managed care organizations covered by ERISA operate under different rules. ERISA preempts many state law claims alleging that the MCO’s denial or delay in care caused an adverse medical outcome. Those types of lawsuits may be brought in federal court as actions under ERISA’s civil enforcement scheme, but the limited remedies available effectively insulate MCOs from liability and, therefore, accountability for these medical outcomes. Liability may be
borne instead entirely by physicians. The practical effect is that MCOs often control resource allocation, but physicians (and patients) bear the costs when resource allocation decisions produce adverse outcomes. In these cases, the patient’s only remedy is to sue the physician, regardless of how much influence over the clinical decision the physician actually exercised. Courts have not been consistent in deciding whether all or merely some state law claims against MCOs will be preempted. Until recently, led by early Supreme Court doctrine, lower federal courts have interpreted the phrase “relates to” very broadly, preempting most state law tort suits challenging health plan innovations and medical decisions. For example, courts generally have held that challenges to delayed or denied care relate to an EBP and are preempted, 29 including litigation alleging that the structure of the EBP was responsible for poor medical outcomes. But in New York State Conference of Blue Cross and Blue Shield Plans v Travelers Insurance Co, 30 the Supreme Court permitted New York State to impose a tax on all insurers except Blue Cross and Blue Shield, reasoning that a uniform tax only tangentially relates to ERISA plan administration. This decision signaled a scaling back on the breadth of preemption. After this decision, courts have been less vigorous in finding ERISA preemption. Narrowing preemption has inspired other related changes. The most important change is that courts have erected a critical distinction between state tort law challenges to the technical quality of care (ie, liability claims for substandard clinical care) and state law challenges to the quantity of care (involving improper plan benefit decisions). The latter must be brought in federal court subject to ERISA’s limited remedies; the former would be heard in state court. In practice, the quantity/quality distinction may signal a nascent trend toward holding MCOs accountable at least in some circumstances, especially, if courts strain to characterize a dispute as involving quality. By way of example, the court in Bauman v US Healthcare, Inc 31 recently held that the defendant’s policy of discharging a newborn within 24 hours without adequately considering the medical appropriateness in a given case could be challenged in state court as substandard quality of care. As their liability expands,
MCOs may begin to reconsider the ways in which they review clinical decisions, as the United Healthcare decision 32 signaled recently by shifting greater clinical authority back to physicians. It is one thing to deny treatment when potential liability rests with the treating physician, but it is an other to deny the claim when the organization might also be held responsible. Consider, for example, state litigation seeking to hold an MCO indirectly liable for the actions of an affiliated physician. Because substandard care is litigation about the quality of care and not the quantity of benefits, the case will probably be heard in state court. And because state courts assess liability based in part on the amount of influence the MCO exerts over clinical decision making, MCOs may seek to avoid liability by loosening their control below the threshold required by state law. The result is increased physician autonomy. While this result is what we anticipate, greater liability exposure could alternatively lead an MCO to protect itself by exerting stricter oversight of clinical decisions. Exactly how MCOs respond will need to be studied. Preemption is not the only area in which this trend toward judicial reconsideration may be emerging. In recent years, many lawsuits charging MCO misconduct that resulted in adverse outcomes from delayed or denied care have been cast as breaches of fiduciary duty under ERISA. 33 No patient has yet recovered a judgment in such a case 34; but to the extent such suits are successful, MCOs might be less likely to second-guess clinical decision making. To date, the decisions have been inconsistent and no truly coherent doctrine has yet emerged. Most courts have explicitly refused to be the agents of a major overhaul of ERISA doctrine, preferring to leave such a role in the legislative arena. 5 Utilization Management A central aspect of the managed care environment is the emergence of new organizational forms, including utilization management processes, which have mixed clinical and financial functions. Managed care organizations rely heavily on utilization management techniques, such as preauthorization for high-cost medical interventions, to reduce costs. The more courts uphold utilization management decisions, the less control the treating physician has over the clinical encounter. In state cases for which ERISA does not apply, courts have held generally that physicians and MCOs may share liability for bad outcomes. 35,36 By contrast, ERISA preemption clearly shields MCOs from liability in state courts for utilization management decisions, even when these are arguably medical and not merely administrative in nature. So far, federal courts have uniformly held that utilization management decisions relate to benefit plans and are preempted, regardless of whether medical care recommended by the treating physician is denied. For instance, in Danca v. Private Health Care Systems Inc, 37 the court supported the prevailing view that a utilization review dispute was pre-empted by ERISA because it is part of the process used to assess a benefit dispute. 38 And in Corcoran v United Health Care Inc, 39 the court concluded that United’s utilization management program, whose denial of hospital care resulted in the death of a fetus, made medical decisions in the context of determining benefits. Accordingly, the court preempted Corcoran’s lawsuit under ERISA. By holding that the administrative aspect of the utilization management process trumps the medical aspect (ie, that it is more a quantity than a quality decision), the federal courts, through ERISA, pro-
vide wide latitude for health care plans to control costs, at the possible expense of both individual access to health care services and the treating physician’s clinical autonomy. State Legislative Initiatives As part of the backlash against managed care, many state legislatures have tried to safeguard physician autonomy. This legislation has ranged from prohibiting gag clauses to comprehensive reforms designed to limit the primacy of cost containment strategies. In many instances, courts have ruled that these laws are preempted by ERISA, although the decisions are by no means uniform. Such rulings have essentially negated state legislative attempts to restore physician
autonomy and have reinforced health plan control over clinical decisions. The most extensive attempt to regulate MCOs is the Texas statute 40 requiring an external appeals process for health care denials and allowing subscribers to sue the MCO for poor quality of health care. A federal district court recently upheld the right to sue, based on the quality/quantity distinction, yet overturned the external grievance process as preempted by ERISA. 41 Although the case is on appeal, that the court preempted the external review process as a law “relating to” an EBP is an indication of the ERISA-created hurdles facing state laws that try to bolster clinical autonomy. Just as troublesome, the current uncertainty in ERISA litigation makes it difficult, if not impossible, to predict which state laws will be preempted. As an example, courts have split on whether any willing provider laws are preempted by ERISA. 42,43 Any willing provider laws would require MCOs to contract with any provider willing to meet the MCO’s established criteria and are intended to preserve patient choice of physician. Compensation Arrangements Another important cost containment mechanism used by MCOs is to provide financial incentives to plan physicians to restrain costs. For instance, salary withholds and bonuses are used as compensation incentives for limiting referrals to specialists and other high-cost procedures. No court has yet ruled that these financial incentives violate public policy, though some non-ERISA cases have permitted challenges to be tried before a jury. 44 ERISA does not regulate how MCOs create incentive structures to motivate contracting physicians’ compliance with cost containment measures. More importantly, ERISA preemption may prevent states from trying to regulate such compensation and incentive arrangements through tort law or legislation. A typical case is
Lancaster v Kaiser Foundation Health Plan of Mid-Atlantic States Inc, 45 in which the court held that the plaintiff ’s state law claim alleging negligence in establishing and operating an incentive program that encouraged physicians not to prescribe certain expensive tests and not to refer to specialists, was preempted by ERISA. The plain-
tiff claimed that this program was a substantial factor in her physicians’ failure to diagnose her brain tumor for 5 1⁄2 years until it had invaded 40% of her brain. The court characterized the establishment and operation of this incentive scheme as an administrative decision affecting the provision of benefits and therefore dismissed the claim as preempted. Not all courts have agreed. 46  A more recent case perhaps presages a different direction based on breach of fiduciary duties (with, of course, the corresponding limit on remedies under ERISA). In Herdrich v Pegram, 47 the court held that a patient could sue for breach of fiduciary duty based on an allegation that the nature of incentive arrangements between the MCO and the physicians caused her to be deprived of proper medical care and that the MCO reaped economic gain from this deprivation. Even though the Herdrich court specifically noted that the existence of economic incentives would not automatically be tantamount to a breach of fiduciary duty, this case is a potentially significant extension of the rationale advanced in non-ERISA cases. If read broadly and followed by other courts, this case could augur an attack on the underlying financial incentives at the core of managed care, perhaps by seeking to enjoin their use. 47 However, Herdrich may represent a legal theory that is viable only in an extreme case in which “a fiduciary jettisons his responsibility to the physical well being of the beneficiaries in favor of loyalty to his own fi-
nancial interests,” 46 and the Supreme Court has agreed to review the decision.
ERISA has played an important role in facilitating, and perhaps stimulating, the development of managed care. But this undeniable policy benefit has come at a high cost to some individual plan subscribers and to physicians. From a policy perspective, ERISA has created a regulatory vacuum in which states cannot act and there is no comparable federal regulatory mechanism. From a legal perspective, ERISA has essentially insulated MCOs from liability by blocking state courts from resolving litigation challenging managed care practices. From a clinical perspective, ERISA has facilitated reductions in physician autonomy relative to health plan influence over clinical decisions. Policy Consequences This analysis suggests several consequences of importance to physicians. First, the effect of judicial interpretations of ERISA is to subordinate physician autonomy and the patient physician relationship to managed care cost containment goals. Implicitly, ERISA reinforces the status quo of the health care delivery market and hence managed care’s current market domination.  Second, perceiving themselves bound by ERISA, courts do not champion either physician autonomy or the patient-
physician relationship. Courts that once protected physician autonomy, are no longer doing so. 49  Judges repeatedly suggest that complaints against managed care should be taken to the legislative branches of government rather than to the courts. Since state legislative initiatives are often barred by ERISA preemption, Congress appears to be physicians’ best hope for change or relief. As of this writing, congressional action to amend the preemption provision (so that state legislatures and courts may act with fewer constraints) or to create new federal regulations similar to recent state initiatives appears to be unlikely. During the 1999 session, the House of Representatives enacted a bill that would permit patients to sue MCOs for damages in state courts, but the Senate bill does not contain a right-to-sue provision. Although House and Senate conferees have been meeting to reconcile the 2 bills, the prospects for enactment are slight, in part because the House conferees are largely opposed to the right-to-sue provision. Regardless, physicians should continue to support attempts to remove ERISA preemption. Even though treating physicians would remain accountable, MCOs should also be held accountable for both financial decisions that affect clinical treatment and for their implicit role in making medical decisions. Physicians should not be left in the untenable position of being entirely responsible for cost containment provisions over which they have almost no control.  By exposing MCOs to similar liability considerations, MCOs
will not be able to influence medical decisions with impunity, which may enhance physician autonomy. Short of eliminating ERISA preemption, Congress could also amend ERISA by expanding on the available remedies. Consistent with the goal of maintaining national uniformity, Congress could retain preemption but allow individuals to sue for monetary damages in federal court for an ERISA violation. Congress could also direct the US Department of Labor (as the appropriate regulatory agency) to develop regulations that would more effectively protect the patient-physician relationship. For instance, regulations might address patients’ rights to notice of a denial of care and to an external grievance panel.  Physician Autonomy An assumption animating this article is that deference to physician autonomy is a desirable goal for better patient care. To some, that proposition may not be self-evident. After all, public concern with rising health care costs and perceived harms from overtreatment in the fee-for-service era led
directly to managed care’s cost containment innovations and concomitant restrictions on physician autonomy as public policy objectives. Indeed, constraints on physician autonomy predate the effects of ERISA litigation. 50 Thus, one scenario suggests that if Congress removes ERISA preemption and helps restore physician autonomy, man aged care’s cost containment goals may be difficult to achieve. This outcome seems unlikely given the current policy environment. Another possible scenario is that MCOs might respond to eliminating ERISA preemption by imposing more aggressive utilization management controls, ironically reducing physician autonomy below what it is under current financial incentives. Yet there is no indication that MCOs are eager to accept the additional liability consequences that may result from greater control over clinical decisions.  No matter whether Congress changes ERISA preemption or expands ERISA’s limited remedies, the tensions among physicians, MCOs, and patients will not be resolved easily.
©2000 American Medical Association. All rights reserved.
February 16, 2000—Vol 283, No. 7
Even if there are some downsides to physician autonomy, patient care ultimately depends on the treating physician’s ability to maintain patient trust while balancing patient demands for high-quality care with the MCO’s legitimate cost containment efforts. In truth, these cost containment programs are needed corrections to an unsustainable fee-for-service system, and many physicians have worked effectively to mediate managed care’s constraints. Yet, inevitably, some patients will not be well served by this system. Either there will be undue delay in arranging health care, or benefits will be denied that should have been provided. In those situations, holding MCOs legally accountable provides incentives for better health care plan administration. ERISA preemption simply goes too far in removing the liability threat
for improper undertreatment.
Support for this article was provided by an Investigator Award in Health Policy Research from the Robert Wood Johnson Foundation, Princeton, NJ. Acknowledgments:
We thank Stephen Modell, MD, David Hyman, MD, JD, and Edward Goldman, JD, for comments on a previous draft.
Hearings Before the Senate Committee on Labor, and Human Resources . 105th
Congress, 2nd session (1998) (testimony of Meredith Miller, Deputy Assistant Sec-
retary, Pension and Welfare Benefits Administration).
Gostin LO. What’s wrong with the ERISA vacuum? employers’ freedom to limit
health care coverage provided by risk retention plans. JAMA . 1993;269:2527-2532.
3. Mariner WK. State regulation of managed care and the Employee Retirement
Income Security Act. N Engl J Med. 1996;335:1986-1989.
4. Chirba-Martin MA, Brennan TA. The critical role of ERISA in state health re-
form. Health Aff (Millwood) . 1994;13:142-156.
5. Jacobson PD. Legal challenges to managed care cost containment initiatives:
an initial assessment. Health Aff (Millwood) . 1999;18:69-85.6.
Senate Subcommittee on Labor of the Committee on Labor and Public Welfare.
Legislative History of the Employee Retirement Income Security Act of 1974.
Washington, DC: US Government Printing Office; 1976:3456.
7. Employee Retirement Income Security Act of 1974,29 USCA §1021-1031 (1999).
8. Employee Retirement Income Security Act of 1974, 29 USCA §1051-1061 (1999).
9. Employee Retirement Income Security Act of 1974, 29 USCA §1081-1086 (1999).
10. Employee Retirement Income Security Act of 1974, 29 USCA §1101-1114
11.  Nealy v US Healthcare Inc , 711 NE2d 621 (NY 1999).
12. Jordan KA. Travelers Insurance: new support for the argument to restrain ERISA
preemption. Yale J Regulation . 1996;13:255-336.
13. Jacobson PD, Pomfret SD. Form, function, and managed care torts: achiev-
ing fairness and equity in ERISA jurisprudence. Houston Law Rev
. 1998;35:985- 1078.
Moreno v Health Partners Health Plan
, 4 F Supp 2d 888 (D Ariz 1998).
15. Employee Retirement
Income Security Act of 1974, 29 USCA §1132 (1999).
McEvoy v Group Health Cooperative of Eau Claire, 570 NW2d 397 (Wis 1997).
17. Employee Retirement Income Security Act of 1974, 29 USCA §1104 (a)(1)
18. Kyle Railways Inc v Pacific Administration Services , 990 F2d 513 (9th Cir 1993).
19. Reilly v Blue Cross and Blue Shield United of Wisconsin, 846 F2d 416 (7th
Cir 1988).
Curtiss-Wright Corp v Schoonejongen, 115 SCt 1223, 1228 (1995).
21. Maltz v Aetna Health Plans of New York, 114 F3d 9, 12 (2d Cir 1997).
22. Firestone Tire & Rubber Co v Bruch, 489 US 101 (1989).
23. McGraw v Prudential Insurance Co , 1998 WL 96849 (10th Cir 1998).
24. Morreim EH. Benefits decisions in ERISA plans: diminishing deference to
fiduciaries and an emerging problem for provider-sponsored organizations.
University of Tennessee Law Rev. 1998;65:511-553.
25. England v John Alden Life Insurance Co, 846 F Supp 798, 801 (WD Mo 1994).
26. Killian v Healthsource Provident Administrators Inc, 152 F3d 514 (6th Cir
27. Boyd v Albert Einstein Medical Center, 547 A2d 1229 (Pa Super 1988).
28. Petrovich v Share Health Plan of Illinois Inc , 188 Ill 2d 17 (1999).
29. Andrews-Clarke v Travelers Insurance Co, 1997 WL 677932 (D Mass 1997).
30. New York State Conference of Blue Cross and Blue Shield Plans v Travelers
Insurance Co, 514 US 645 (1995).
31. Bauman v US Healthcare Inc, 193 F3d 151 (3rd Cir 1999).
32. Freudenheim M. Big HMO to give decisions on care back to doctors.
New York Times. November 9, 1999:A1.
33. Ince v Healthsource Arkansas Inc, 1997 WL 591117 (ED Ark 1997).
34. Pomfret SD. Emerging theories of liability for utilization review under ERISA health plans.
Tort Insurance Law J. 1998;34:131-166.
35. Wilson v State of California, 271 Cal Rptr 876 (Calif 1990).
36. Long v Great West Life & Annuity Insurance Co
, 957 P2d 823 (Wyo 1998).
37. Danca v Private Health Care Systems Inc, WL 552604 (1st Cir 1999).
38. Tolton v American Biodyne Inc, 48 F3d 937 (6th Cir 1995).
39. Corcoran v United Health Care Inc, F2d 1321 (5th Cir. 1992).
40. Tex Civ Prac & Rem Code Ann, The Health Care Liability Act, §§ 88.001-88.003.
41. Corporate Health Ins Inc v Texas Department of Insurance, 12 F Supp 2d 597
(SD Tex 1998).
Blue Cross and Blue Shield v St Mary’s Hospital, 426 SE2d 117 (1993).
43. Texas Pharmacy Association v Prudential Insurance Co of America, 105 F3d
1035, 1039 (5th Cir 1997).
44. Paul v Humana Medical Plan Inc, 682 So2d 1119 (Fla 1996).
45. Lancaster v Kaiser Foundation Health Plan of Mid-Atlantic States Inc, WL
174182 (ED Va 1997).
46. Oulette v The Christ Hospital, 942-154F Supp 1160 (SD Ohio 1996).
47. Herdrich v Pegram, F3d 362 (7th Cir 1998).
48. Herdrich v Pegram, 170 F3d 683 (7th Cir 1999), dissenting opinion.
49. Hall MA. Institutional control of physician behavior: legal barriers to health care cost containment.
University of Pennsylvania Law Review. 1998;137:431-536.
50. Light D, Levine S. The changing character of the medical profession: a theo-
retical overview. Milbank Q . 1998;66(suppl 2):10-3

Federal Judge, William Acker, Testifies Before Congress About ERISA

It is a privilege to be able to share with you this morning some of the thoughts of a trial judge who has been grappling with ERISA for twenty-eight years. Appointed in 1982, I sweated over ERISA, and watched other courts sweat over it, until in 1998 I wrote the law review article that probably prompted this Committee to invite me. The article was entitled “Can the Courts Rescue ERISA?” A copy of that article is attached to my testimony as Exhibit  “A.”  Although my old arguments are now somewhat dated, my answer to the question then was “NO”, and since that time I have not changed my mind.  The courts have not rescued ERISA.  If anything, they have dug the ERISA hole deeper.
I am not saying that the courts, including the Supreme Court, have not tried to make sense of ERISA, and to make it workable, but in truth, the situation is worse in 2010 than it was in 1998, and getting worse every day. I hope that the Committee is not as interested in citations of authority to support my views as it is in the views themselves, acquired from experience as a trial judge confronted for twenty-eight years with a constantly changing ERISA.  I am assuming that except for Chairman Baucus, whose State
has done away with the so-called “discretionary clause”, for Senator Stabenow, whose State has done the same thing, and for Senator Cornyn, whose State is in the process
of doing it, if it has not already done so, and, who, as Texas Attorney General, was sued by Corporate Health Insurance in the case that became central to the “five-to-four”
decision by the Supreme Court in Rush Prudential v. Moran, the other members of this Committee have no specialized knowledge about ERISA, or of the effect that the so-called “discretionary clause” (first given prominence by the Supreme Court in Firestone v. Bruch) has had on the ERISA courts and litigants as they plod along.  The Committee has already heard or will hear testimony from others who are my intellectual equals or my superiors, who support the continuation of the “discretionary clause”,
as central to ERISA benefits decision-making. I will try to explain why the “discretionary clause” is a disaster, both as a matter of economics and as a denial of “due process”.
The Economic Effect of Bruch “The Law of Unintended Consequences” Bruch put the fox in the hen house when it authorized ERISA plan administrators to operate under
the now universally used provision (except for Michigan and Montana) that allows the plan administrator both to interpret the plan and to decide how to apply it to a particular disability claim.  This concept not only is foreign to logic and common sense, but is unworkable and expensive. I am attaching as Exhibit “B” a copy of the initial
order I routinely use in ERISA disability benefits cases.  A look at it from top to bottom will illustrate the complexity of court decision-making, something that only takes place after the already lengthy processing of the administrative claim, and after the claim has been denied upon final review by the plan administrator.  A driving force behind the idea of granting the insurer/plan administrator/plan sponsor almost unbridled discretion is the belief that the procedure will lessen costs and lessen the time spent on
ERISA cases. This contention is the main argument in the amici curiae briefs filed in support of Standard Insurance Company’s unsuccessful certiorari petition that sought to
overturn the decision that confirmed Montana’s right to eliminate the “discretionary clause”.  It is, of course, true that in drafting legislation, Congress has an obligation to consider the economic impact, as well as the needs of society.  This judge is willing to assume that Congress engaged in that debate before it enacted ERISA. The language
it chose in 1974, if it had not, over time, been altered or obliterated by the courts, would provide for de novo consideration by a court of all denials of ERISA benefits.
ERISA’s Section 502(a)(1)(B) straightforwardly provides that any beneficiary of a plan governed by ERISA can bring a “ civil action… to recover benefits due him under
the terms of his plan”.  Rule 2 of the Federal Rules of Procedure provides: ” There is one form of action – the civil action”.  This language recognizes nothing less because even if they win, the award of a fee is within the court’s discretion.  A claimant faces a structurally-conflicted decision-maker, whose self-interest not only bears on the way it looks at the claim, but provides every reason to prolong the review process.  Once the case gets to court, using the Brunch “abuse of discretion” standard, a voluminous court opinion will eventually emerge.  It will necessarily compare in detail the hearsay of opposing medical experts and vocational experts who opine on the income that can be realized from an alternative job that the plaintiff can perform and the try to justify either an “abuse of discretion”, or no “abuse of discretion”.  The trial judge, if he or she takes Bruch seriously, starts by being intimidated. This problem was exacerbated by the Supreme Court in Metropolitan Life v. Glenn.  In that case, the high court, which quickly acknowledged the existence of a structural conflict-of-interest, held that judges must consider the conflict-of-interest as a factor i determining whether or not there has been an “abuse of discretion”.  This new rule encourages plan administrators to create procedures that look like a blunting of their conflict-of-interest.  It also  increases
the work of the trial court.  After the Complaint has been filed, the court must first decide whether to limit its consideration to a review of the so-called administrative record, which may be a thousand pages, or to allow limited discovery during which the plaintiff can also seek evidence that may place more weight on the inherent conflict-of-interest.  This judge does not criticize his fellow jurists, but sympathizes with them, for the head scratching they do as they decide a controversy under the instructions given in Bruch and Glenn.  Not only does Bruch tilt the scales against the beneficiary on questions of fact, but on the plan.  Ordinarily, the interpretation of a contract is for a court or for a jury.  In one of my cases, Oliver v. Coca Cola, the Eleventh Circuit held that my opinion interpreting the plan to resolve an obvious ambiguity against the draftsman, was correct, but another panel of the Eleventh Circuit, in a separate case, held that the same plan was reasonably construed the other way by the Coco-Cola
claims committee, meaning that Coca-Cola’s claims committee did not abuse its discretion when it arrived at its favorable construction of the contract Coca-Cola had drafted.
Oliver was remanded to me with instructions to remand it, in turn to the Coca-Cola claims committee for its reconsideration.  If the case had not been settled as that point, the courts would still be laboring over it. What Shell is the Pea Under? Another chore for the trial courts that needs to be removed arises from the fact that defendants don’t confess their liability, and plaintiffs don’t know which entity to sue.  The funding source for the payment of monetary benefits is often obscure.  I will give you an example from my personal experience.  In Florence Nightingale Nursing Service. v. Blue Cross, the only defendant named in the Complaint was Blue Cross, but the truth was that the
plan sponsor, who was the only obligor, was Integraph Corporation, the employer of the beneficiary.  Integraph only hired Blue Cross to be its claims administrator.  Blue Cross did not file a third-party complaint against Integraph.  I accidentally flushed out the problem during a pre-trial conference, and  obtained the agreement of the pla sponsor and the claims administrator, who were represented by the same counsel, that if liability was found on one or the other would pay. If I had not ironed out this problem beforehand, and a judgment had not been entered against Blue Cross which was not a proper party, I do not know what would have happened.  The long and short of it is that the “independent” consideration of an ERISA claim as contemplated by Congress would have judicial resources and clients’ money.  When Standard Insurance Company asserted in its petition for certiorari in the Montana case, that doing away with “discretionary clauses will lead to far more complex and costly litigation”, it was not only wrong as a matter of fact, but was using a scare tactic. If  Congress doubts me, I recommend an experiment in which Congress will now reiterate what it said in 1974 (with no possible misunderstanding this time) that de novo trials are the only appropriate procedure in ERISA cases, and wait to see the cases and judicial opinions that are produced.  If I am proven wrong, I will gladly eat my words. At my age that may be a safe bet.  Justice Delayed Is Justice Denied, you have heard the cliche “justice delayed is justice denied”.  It has real application to ERISA.  My friend and fellow district judge, Brock Hornby of the District of Maine, as recently as July, 2010 in Kane v. SI Metro Services, held that a plan beneficiary had  plausibly demonstrated the futility of the final appeal to the plan administrator insisted upon by the administrator, and therefore could go directly to court to contest the lower level claim denial.  As a judge, I have never been asked to go as far as Judge Hornby, although in the only case I ever argued before the Supreme Court if the United States, I did convince the Court to excuse my client’s failure to exhaust remedies that were futile.  If you have time, take a look at Glover v. St. Louis & San Francisco Railroad decided in 1969.  I have had many ERISA benefits cases that, before they got to me, had bounced around the administrative process for years. By the time the matter gets to me, the beneficiary is not only administratively exhausted, but, unless he has dies trying, his health has deteriorated to the point that a remand to the plan administrator for reconsideration is tempting.  If the parties, to start with, understood that a denial would shortly result in a trial on the merits, serious settlement negotiations would take place before access to the court is sought.  Plan administrators have often asked me to remand cases to them, asserting that they have uncovered something that now casts doubt on their administrative decision. Many courts remand under such circumstances. This procedure of course, prolongs the agony.  I do not remand such cases to the plan administrator unless ordered to do so by a higher court.  Until Congress grants relief, I will continue scrupulously to follow the directions given by the Supreme Court in Bruch and Glenn, that is, if there is a “discretionary clause”.   Applicability of Rule 56 attached as Exhibit “C”, is an opinion I wrote on September 16, 2010, attempting to explain the impossibility of using Rule 56 as a vehicle for what Congress in 1974 described as a “civil action”, but which has evolved into a “judicial review”, sort of like a Social Security administrative review.  If there is no real dispute of material fact, Rule 56 disposition is, of course, appropriate, but there is almost always a dispute of material fact.  Competing doctors strangely see things differently, even unsworn hearsay, and are subject to questions of credibility.  If the employer/insurer/plan administrator is privileged to decide the truth of the  “facts”, and where those “facts” lead, as well as what the plan means, the decision is rarely for the beneficiary where those “facts” lead, as well as what the plan means, the decision is rarely for the beneficiary, that is, unless it is a slam dunk, and not always then.  It is difficult enough to read a thousand page administrative record, extensive briefs, and write an opinion that finds the decision-maker to have abused its discretion, or not to have abused its discretion, but Rule 56 does not to fit this scenario.  In footnote 4 of the Eighth Circuit’s recent opinion in Khoury v. Group Health Plan, it worried over this problem, saying: Courts have struggled with the use of summary judgment to dispose of ERISA cases…We decline to use the propriety of the use of summary judgment procedures in this case because the issues was not raised by the parties…If a district court rejects the ruling of the administrator, the district court would then have to independently weigh the evidence in the administrative record and render de novo factual determinations, contrary to the summary judgment standard of review.  The Eighth Circuit obviously had reservations about courts resolving factual disputes. Super-Duper Preemption In 1995, the Supreme Court of Alabama in Weems v. Jefferson-Pilot Life, held that Alabama courts have jurisdiction over ERISA cases, and that extra-contractual and punitive damages are recoverable because the Seventh Amendment gives the right to trial by jury.  That decision still stands in Alabama, although the Alabama trial courts, unless a defendant first removes the case to federal court, dismiss an ERISA case without prejudice sua sponte.  They are influenced by the federal courts that have suggested the complete “exclusivity” of federal courts over ERISA cases.  I call this “super-duper preemption”.  There is no language in ERISA, any more than in the Fair Labor Standards Act or in Title VII, that denies concurrent jurisdiction to the state courts.  I do not blame the Alabama trial courts for doing what they do, although I have no reason to doubt that they can handle ERISA cases as well as I can, if not better.  There is ambiguity as to whether ERISA creates this “super-duper preemption”  The federal and state courts need to be on the same page on this question, and Congress should write that page in a clear hand.
Conclusion.  I have covered some, if not all, of my pet peeves.  ERISA jurisprudence will stay as messed up as it is, unless Congress reworks it.  The courts have not rescued
ERISA, and cannot be expected to do so.  The most important legislative change that I implore you to make is to make it clear that when Congress says “civil action”, as it did
in 1974, it means what it said, “civil action and not “judicial review”.  Thank you for the opportunity to share these thoughts with you.
Our law firm fights on behalf of individuals to obtain their long-term disability benefits.
If you believe you have been wrongfully denied your ERISA, or non-ERISA, long-term disability benefits, give us a call for a free lawyer consultation. You can reach Cody Allison & Associates, PLLC at (615) 234-6000. We are based in Nashville, Tennessee; however, we represent clients in many states (Tennessee, Kentucky, Georgia, Alabama, Texas, Mississippi, Arkansas, North Carolina, South Carolina, Florida, Michigan, Ohio, Missouri, Louisiana, Virginia, West Virginia, New York, Indiana, Massachusetts, Washington DC (just to name a few). We will be happy to talk to you no matter where you live. You can also e-mail our office at Put our experience to work for you. For more information go to