X hits on this document

130 views

0 shares

0 downloads

0 comments

34 / 38

BUSCHING-KAPOCHUNAS FINAL

2/4/2009 1:59:19 AM

634

HOFSTRA LABOR & EMPLOYMENT LAW JOURNAL

[Vol. 25:601

doctor, receive treatment, and then send their bill to their insurer.243 If their insurer wrongfully or improperly refused to reimburse them, the beneficiaries could initiate suit and recover the cost of their treatment,

pursuant to the remedies available under ERISA.244

However, as

discussed above, in today’s employee benefits arena, the remedies available under ERISA can no longer make beneficiaries whole. In light of this, new federal legislation is necessary if this issue is to be fully resolved. Currently, the preemption clause can only be definitively interpreted by the courts.245

However, as is the case with many social issues that make their way into the political arena, state governments have been far more progressive than the federal government when confronting issues of mental health parity in healthcare. As previously discussed throughout this note, states’ governments have been passing new legislation, continually trying to get around ERISA preemption, to bring broader and better healthcare coverage to individuals whose benefits are derived from employer benefits plans.

PART VI

Progressivism: State Governments versus the Federal Government

Some

scholars

contend

that

state

legislatures,

not

Congress,

are

perhaps in the individuals. 246

best situation to protect the Constitutional They assert that “state governments are

rights of uniquely

responsive to smaller politically progressive groups, and that limitations

on federal power are justified . legislation.”247 This is because state

.. and

to preserve progressive local local governments are closer to

their individual citizens, and protecting individual rights

as such, are likely to be more liberal when and addressing individual issues than the

243. Id. (noted in Christopher Wethly, New York Conference of Blue Cross & Blue Shield Plans v. Travelers Insurance Co.: Vicarious Liability Malpractice Claims Against Managed Care Organizations Escaping ERISA’s Grasp, 37 B.C. L. REV. 813, 817 (1996)).

244. Id. (construing Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1132(a)(1)(B) (2000)).

  • 245.

    See BUTLER, supra note 190, at 6.

  • 246.

    Denise Z. Morgan & Rebecca E. Zietlow, The New Parity Debate: Congress and Rights

of Belonging, 73 U. CIN. L. REV. 1347, 1376 (2005) (citing Stephen Clark, Progressive Federalism? A Gay Liberationalist Perspective, 66 ALB. L. REV. 719, 755-57). 247. Id.

Document info
Document views130
Page views130
Page last viewedThu Dec 08 16:39:02 UTC 2016
Pages38
Paragraphs1693
Words16843

Comments