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HOFSTRA LABOR & EMPLOYMENT LAW JOURNAL
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
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.
Progressivism: State Governments versus the Federal Government
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
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)).
See BUTLER, supra note 190, at 6.
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.