A boulder thrown into the small pond of employee benefits law will soon ripple out into the larger business world, giving workers more power to sue insurers - and insurers a big reason to raise health-care rates.
Two weeks ago, the New York State Insurance Department quietly issued a decision barring insurance companies and health- maintenance organizations from writing discretionary clauses into their group benefit policies. Discretionary clauses offer health and disability insurers wide latitude to decide whether an insured employee deserves coverage following an illness or injury. Employee advocates have long argued that insurers wield this advantage to deny claims.
Insurance companies got to cloak themselves behind discretionary clauses, says Justin Frankel, partner with law firm Frankel & Newfield in Garden City. [The decision] is a big deal because New York is a pro-insurer state.
The ruling, issued March 27, applies to health plans governed by the federal Employee Retirement Income Security Act, a 1970s law written by former U.S. Sen. Jacob Javits, a New Yorker. It opens a new avenue for employees - and their attorneys - to use the courts to challenge insurance company claim decisions.
We see this as an extremely liberating, groundbreaking ruling, says Kevin Schlosser, head of the litigation department at Meyer, Suozzi, English & Klein in Mineola.
But attorneys who defend insurers say New York is joining a growing nationwide trend in demonizing insurance companies. Federal law, backed by a 1989 U.S. Supreme Court ruling, already provides adequate protections for employees to challenge insurance company decisions, and the state’s move to intervene is practically begging for a protracted fight, says Norman Tolle, a former insurance company executive and a partner at Rivkin Radler in Uniondale.
New York has gone on the bandwagon, he says of the ruling. There’s no doubt there will be a legal challenge.
In the meantime, company health plans will get more expensive, for employers and employees alike, Tolle predicts.