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Shared Cost Insurance Policies Carry ERISA Preemption Risks for Employees
The Washington Post recently published an article discussing the trend toward shifting insurance costs from employer to employee in an effort to lower expenses ("Employers shift disability insurance costs to workers and trim benefits" - published Sept. 19, 2011). Though useful, the article omits the single most important piece of information relating to employer-based insurance. Namely; that employer-based insurance strips you of all your rights and protections against unfair or fraudulent insurance practices.
The U.S. Supreme Court has held that employer-based insurance is governed by federal law, not by state law. The problem with this is that the Federal Government is prohibited from regulating insurance company practices and therefore any, and all, rights that you have as a consumer are provided by state protections, such as the uniform unfair claims practices act, which has been adopted by most states.
Violations of these state laws resulting in damage to the consumer such as foreclosure and bankruptcy are actionable under state insurance protections. In other words, you can sue if you have lost your life's savings as a result of being cheated or defrauded by your insurance company. You have a right to a jury trial, under state law, and you have a right to recover for all damages suffered as the result of wrongful or bad faith conduct by your insurance company.
Under Federal law you have NONE of these rights. Therefore, under Federal law you have no leverage to simply force your insurance company to pay valid claims. Without this leverage you have no ability to compel your insurance company to do what is required under the terms of its own policy.
This doctrine of the abolition of your state rights and law is called ERISA preemption. It is the single most outrageous law in the history of insurance regulation.
Congress has refused to rectify this problem because of the power of the insurance lobby, and because 95% of the public knows nothing about the problem.
The bottom line is that if you have an ERISA preempted policy, your insurance company can deny even the most valid claim. And although the carriers use fancy language in their denial letters, the bottom line is that even if they told you "your claim is legitimate and we owe you $100,000s in future benefits" you couldn't even sue them for that. And even if you lost your life savings because of the wrongful denial you still couldn't sue them for that loss.
By the way, one of the largest institutional proponents of ERISA preemption in the country is Kaiser Permanente, the "collaborator" with the WA post.
If you ever have a choice between buying an individual policy vs. an employment endorsed policy, buy the individual policy. Even if your employer isn't paying the premiums, a policy which has your employer's stamp of approval on it, is probably ERISA preempted, stay away from it.
Reference Article: Link
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