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Employee Retirement Security Act (ERISA) is a statute that lays down the minimum standards to be applied in pension plans for the private sector. It also has the rules to guide transactions related to employee benefit plans. State laws also guide the process to be followed in transacting benefit plans, especially in relation to paying of claims.

State law provides for an insured person to sue the company providing a health plan for failing to deny authorization of the said series of treatment (Petti, 2009).  The insured has the right to a full trial, in this trial; the insured is allowed to call witnesses such as my employer to explain themselves. Another witness that I would probably call is the medical staffs who have attended to me. The case under state law can be decided a jury of peers.

These are some of the factors that are likely to make the case successful under state law. Further, state law has the provision for damages that may have resulted from the denial of authorization for the treatments.  State law also allows the insured to conduct a full discovery to find out why authorization of the treatment was denied. The unfortunate thing with this is that the employer may choose to use delay tactics to wear down and discourage litigation.

 ERISA does not quite preempt state law; it has slight variations in the way the case will be handled.  It does not oblige an employer to provide his employers with a health plan; however ERISA does regulate how the health benefit plan works if an employer establishes one (Schultz, 2004).  ERISA is different in that there is no jury of peers; instead, there is a judge who decides the case.

There are also no witnesses and the judge uses the records used by the insurer in rejecting the claim. In this case, these are the medical records which may have been tampered with. The advantage with ERISA is that the delaying of discovery is virtually absent and since it is more streamlined it is easier to get a trial date sooner than under state law (Schultz, 2004).

Though ERISA does not grant consequential damages it has the provision for attorney fees which state laws do not have. If I were to win the case, under ERISA, the other party (the employer would have to pay the attorney’s fees). With the assistance of a lawyer ERISA would provide an effective remedy for the denied authorization of treatment.

Using ERISA the first step would be to appeal the denial of authorization for payment. Here I will write to the employer to explain reasons for appealing and provide the necessary evidence to support the claim. This is because failure to exhaust the appeal may lead to loss of the right to sue under ERISA.   Additionally the employer might agree to authorize the series of treatment.

Since the lawyer suspects that there has been some tampering with my records, we will try to find with whom this information was shared. This information will form the large part of the case under ERISA, as it form the records that the judge will look at being the most substantial piece of evidence. This information will be requested for from the hospital’s records of patients. We will also make inquiries at the hospital to find out all the people who have access to the medical records.

References

Schultz EE, 2004, Companies Sue Union Retirees to Cut Promised Health Benefits, The Wall Street Journal p1

Petti R, 2009, ERISA PRIMER, retrieved from http://erisa.petti-legal.com/erisaprimer2_005.htm

Saturday 19 December, 2009

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