Health benefits--reimbursement--state law claim not preempted. Providence Health Plan v. McDowell

A claim to enforce a reimbursement provision or a separate promise to reimburse a plan out of recovery from a responsible third party cannot be brought in federal court under ERISA, because it is a legal claim for monetary damages and ERISA allows fiduciaries to bring suit only for equitable relief However, a claim for reimbursement of medical benefits paid from a third-party settlement is a state law breach-of-contract claim that cannot be removed to federal court and is not preempted by ERISA. Thus, a plan can bring an action in state court for breach of contract against a participant or beneficiary who fails to reimburse the plan for medical benefits paid when he or she recovers from a third party in a settlement or through a judgment, as required by a reimbursement provision in the plan and/or a separate reimbursement agreement.     

HMOS--independent medical review--preemption. Rush Prudential HMO,Inc. v. Moran

A state statute can require an HMO to provide for an independent medical review of a denial of a request for a particular treatment as not medically necessary and to provide the treatment if the reviewing physician determines the covered service is reasonably necessary. The statute is exempt from ERISA preemption as a law that regulates insurance.     

Is ERM Legally Required? Yes for Financial and Governmental Institutions,No for Private Enterprises

We examine whether enterprise risk management (ERM) is legally required for financial institutions (e.g., banks, securities brokerage firms, insurance, hedge funds and mutual funds), government entities, publicly traded companies, and private enterprises. We find that ERM is legally required for U.S. financial institutions and for some government‐sponsored enterprises. Legally required means required by U.S. statutes, federal case law, or U.S. regulatory agencies (e.g., Securities and Exchange Commission [SEC]). ERM is an important factor for rating organizations (e.g., Standard & Poor's [S&P]), but not legally required. We found no U.S. statutes or federal court cases requiring an ERM framework for private enterprises, although ERM is accepted as a value‐contributing best practice, and elements of ERM are practiced by some private enterprises. For publically traded companies, elements of ERM are required by federal statute, by the SEC, and by S&P. We suggest that if a private enterprise is sued in U.S. federal court alleging breach of a legal duty to practice ERM, the suit will likely be dismissed. We trace the development of ERM from a traditional risk management (TRM) base. Fortunately, ERM is recognized as a value‐contributing best practice in corporate governance even when legal standards do not require it.     

Multiple Losses, EX ANTE Moral Hazard, and the Implications for Umbrella Policies

Under certain cost conditions the optimal insurance policy offers full coverage above a deductible, as Arrow and others have shown. However, many insurance policies currently provide coverage against several losses although the possibilities for the insured to affect the loss probabilities by several prevention activities (multiple moral hazard) are substantially different. This article shows that optimal contracts under multiple moral hazard generally call for complex reimbursement schedules. It also examines the conditions under which different types of risks can optimally be covered by a single insurance policy and argues that the case for umbrella policies under multiple moral hazard is limited in practice.     

Vergleich der Fahrkostenübernahme durch die Gesetzliche Krankenversicherung in Deutschland und Frankreich

The payment of transportation costs according to German health insurance law in § 60 IV SGB V depends on the legal provisions concerning rescue services in the Bundesländer: Transportation has to be awarded in kind if the prices are agreed upon in a contract between the health insurers and the transportation enterprises. On the other hand, if these prices are fixed in a municipal or Länder statute, the health insurers are entitled to limit their payment obligations up to a fixed amount (?Festbetrag“). In this case, the reimbursement of the accrued transportation costs is the only feasible method. The French health insurance is based upon the principle of reimbursement which is valid for transportation costs as well. Under certain conditions the insured persons can be exempted from their personal contribution as well as the advance payment. The difference to the principle of benefits in kind becomes thus ?invisible“. According to § 60 IV SGB V, the statutory German health insurance does not bear the costs for transports from abroad. People who are insured in the French Assurance Maladie, however, are entitled to reimbursement of these costs if the transport was medically indicated. The reimbursable amount is reduced by the costs that would have to be paid for the return journey had the accident or illness not occurred. According to the standard that has been set up by the ECJ in their rulings in Kohll and Decker, the German provision in § 60 IV SGB V is contrary to both the freedom of movement within the EU of the insured persons, art. 39 EC, and the freedom of services of the transportation enterprises, art. 49 EC. National law has to be interpreted in conformity with the EC-law provisions, therefore transportation costs have to be borne if the next possible treatment is available only after crossing the border to Germany.     

The Financial Crisis, Systemic Risk, and the Future of Insurance Regulation

This article considers the role of American International Group (AIG) and the insurance sector in the 2007–2009 financial crisis and the implications for insurance regulation. Following an overview of the causes of the crisis, I explore the events and policies that contributed to federal government intervention to prevent bankruptcy of AIG and the scope of federal assistance to AIG. I discuss the extent to which insurance in general poses systemic risk and whether a systemic risk regulator is desirable for insurers or other nonbank financial institutions. The last two sections of the article address the financial crisis's implications for proposed optional and/or mandatory federal chartering and regulation of insurers and for insurance regulation in general.     

Fixed-Reimbursement Insurance: Basic Properties and Comparative Statics

In a number of settings, insurance contracts specify a fixed reimbursement in the event of a loss which is not conditioned on the size of the realized loss. In this article, we explore the theoretical properties of this form of insurance and draw comparisons with other types of insurance policies, such as those based on coinsurance and deductibles. We also examine links between our results and those from the literature on precautionary saving.     

"Any Willing Provider" laws not preempted by Employee Retirement Income Security Act (ERISA). Kentucky Association of Health Plans, Inc. et. al. v. Miller, Commissioner, Kentucky Department of Insurance

"Any Willing Provider" laws are not preempted by ERISA because they are state laws regulating insurance if they are (1) specifically directed toward entities engaged in insurance and (2) substantially affect the risk-pooling arrangement between the insurer and the insured. Thus, a state may prohibit health maintenance organizations (HMOs) from creating exclusive "provider networks" of doctors, hospitals and other health care providers by excluding other providers who are "willing and able" to comply with all the HMO's contractual terms if the law meets the new two-prong test established by the Supreme Court in this case. The Court made a "clean break" from using the McCarran-Ferguson Act factors for determining whether certain practices constitute "the business of insurance," when deciding when they regulate insurance for purposes of ERISA preemption.     

A Comparison of HMO Efficiencies as a Function of Provider Autonomy

Current debates in the insurance and public policy literatures over health care financing and cost control measures continue to focus on managed care and HMOs. The lower utilization rates found in HMOs (compared to traditional fee‐for‐service indemnity plans) have generally been attributed to the organization's incentive to eliminate all unnecessary medical services. As a consequence HMOs are often considered to be a more efficient arrangement for delivering health care. However, it is important to make a distinction between utilization and efficiency (the ratio of outcomes to resources). Few studies have investigated the effect that HMO arrangements would have on the actual efficiency of health care delivery. Because greater control over provider autonomy appears to be a recurrent theme in the literature on reform, it is important to investigate the effects these restrictions have already had within the HMO market. In this article, the efficiencies of two major classes of HMO arrangements are compared using “game‐theoretic” data envelopment analysis (DEA) models. While other studies confirm that absolute costs to insurance firms and sponsoring companies are lowered using HMOs, our empirical findings suggest that, within this framework, efficiency generally becomes worse when provider autonomy is restricted. This should give new fuel to the insurance companies providing fee‐for‐service (FFS) indemnification plans in their marketplace contentions.     

Marktversagen auf dem geförderten Pflegezusatzversicherungsmarkt?

This study analyzes the supply side of the private German long term care insurance market. It compares loads and comprehensiveness of subsidized and unsubsidized insurance policies for three age groups. The results show that subsidized insurance policies are less comprehensive than unsubsidized insurance policies. In addition the premiums of subsidized policies are marked up substantially above expected benefits compared to unsubsidized policies. All in all these results indicate market failure due to adverse selection within the subsidized private long term care insurance market. Furthermore, the results show that due to unisex pricing, private long term care policies are in general more attractive to women than to men. As this is not reflected in demand, other factors than supply side failure seem to contribute to an overall low demand for private long term care insurance policies.     

云南省完善医疗保险异地就医服务管理的现实选择

现行的城镇职工医疗保险制度存在统筹层次低、统筹地区多、地区之间的医保政策和待遇标准以及管理办法各不相同的情况,随着人口流动性的不断增大,异地就医数量日益增加,异地就医和医疗费用结算等方面矛盾重重,一定程度上影响了制度的公平性。本文以云南省为例,在抽样调查的基础上分析了异地就医服务管理的现状,针对突出问题,提出了改进的对策和建议。     

An Efficiency-Based Approach to Determining Potential Cost Savings and Profit Targets for Health Insurers: The Case of Obamacare Health Insurance CO-OPs

This research analyzes the performance of the health insurance consumer-operated and -oriented plan (CO-OPs), examines their medical services and operating efficiency, proposes an efficiency-based goal-oriented approach for cost reductions, profit targets, premium changes, and government subsidies, and provides an important guide for improvement potentials for both the CO-OP health insurance model and other health insurers. The CO-OPs are not satisfactory in the medical services efficiency, and they are much less efficient compared with other insurers. Potential cost reductions are significant using various (conservative) efficiency goals. Most CO-OPs suffer underwriting losses, as do many other insurers; a few CO-OPs are much more operating efficient than other insurers, but all CO-OPs need significant improvement of financial performance relative to benchmark insurers. Incorporating potential cost reductions, many CO-OPs would barely require any “premium changes and government subsidies,” and they are even capable of paying back the federal loans. With both potential cost reductions and premium increases, more CO-OPs would not need any help from the government but survive on their own. This research informs public debates and all stakeholders (including management, consumers, regulators, policymakers) of improvement potentials to be considered for related decision making besides other factors including the political environment and government policies.     

The formative decade of Israel's reorganization law: 1995–2004

The article analyses closely the major developments that took place between 1995 and 2002, both as a result of legislation and judicial law making. In 1995, the Knesset, the Israeli legislature, enacted a moratorium statute. This statute stays all pending proceedings against a financially distressed corporation which has applied to the court requesting its reorganization through a compromise or arrangement scheme. The moratorium statute influenced significantly this scheme and effectively reshaped it in a reorganization‐friendly manner. The article submits that the moratorium statute has effectively transformed the nature of secured creditors' rights from rights‐in‐kind to rights‐in‐value. In addition, the article will demonstrate the relative contribution of both the Supreme Court and the district courts to reorganization law's development. The Supreme Court established the grand premises for judicial law making in corporate reorganization by holding that the statutory substantive norms which apply in corporate liquidation apply in reorganization as well mutatis mutandis. For their part, the district courts contributed to the law making in two primary aspects of corporate reorganizations: First, by requiring that in reorganization cases a court‐appointed trustee shall manage the corporation and negotiate on its behalf with the creditors. Secondly, the courts developed the practice of auctioning the firms undergoing reorganizations as a means for maximizing the return to the creditors. Copyright © 2005 John Wiley & Sons, Ltd.     

Ökonomische Überlegungen zur Rationierung im Gesundheitswesen

This contribution first recalls the fact that binding budgets imposed by policy makers induce rationing, which in its turn by superseding the price mechanism causes inefficiencies in the market for medical services. In addition, inefficiencies spill over into the market for health insurance providing in-kind benefits, while possibly benefiting reimbursement health insurance. But then, the commodity ‘rationing’ itself has a market; indeed, the mere existence of health insurance creates demand for rationing that even increases over time. The contribution concludes with a listing of instruments at the disposal of health insurers designed to make the insured opt for policies with self-limitation features. Thus, insurers can help to reduce that demand for rationing and the inefficiencies that come with it.     

How does managed care do it?

Integrating the health services and insurance industries, as health maintenance organizations (HMOs) do, could lower expenditure by reducing either the quantity of services or unit price or both. We compare the treatment of heart disease in HMOs and traditional insurance plans using two datasets from Massachusetts. The nature of these health problems should minimize selection. HMOs have 30% to 40% lower expenditures than traditional plans. Both actual treatments and health outcomes differ little; virtually all the difference in spending comes from lower unit prices. Managed care may yield substantial increases in measured productivity relative to traditional insurance.     

Pitfalls in using market prices to assess the financial condition of depository institutions

In this article we examine the information that stock prices provide about the financial condition of federally insured thrift institutions. In order to assess their financial condition from the different perspectives of stockholders and the federal insurer, we calculate the value of the put option of federal deposit insurance available to thrift institutions. Our results demonstrate that the two perspectives often provide, particularly for unhealthy institutions, quite different views of the financial condition of individual institutions.     

Federal jurisdiction--reimbursement action by federal employee health plan administrator. Empire HealthChoice Assurance, Inc., d/b/a Empire Blue Cross Blue Shield v. McVeigh

The Supreme Court, in a 5-4 decision, ruled that federal courts lack jurisdiction over a suit brought by a federal employee health plan administrator seeking reimbursement of benefits covered by a personal injury settlement.     

Understanding the motivations of coastal residents to voluntarily purchase federal flood insurance

Federally-backed flood insurance is the primary mechanism by which residents in the United States (US) prepare for and recover from floods. While there is a growing literature on the general uptake of flood insurance, little work has been done to address the factors motivating residents to voluntarily buy and maintain federally-based insurance policies. We address this issue by conducting a survey of coastal residents in four localities in Texas and Florida. Based on survey responses, we quantitatively examine the factors influencing whether residents located outside of the 100-year floodplain obtain insurance policies when it is not required. Using two-sample t-tests and binary logistic regression analysis to control for multiple contextual and psychological variables, we statistically isolate the factors contributing most to the decision to purchase insurance. Our findings indicate that a resident located outside the 100-year floodplain who has voluntarily purchased federal flood insurance can be characterized, on average, as more highly educated, living in relatively expensive homes, and a long-time resident who thinks about flood hazard relatively infrequently but who, nonetheless, thinks flood insurance is relatively affordable. Unexpectedly, the physical proximity of a respondent to flood hazard areas makes little or no discernible difference in the decision to obtain flood insurance.     

Cybersecurity insurance and risk-sharing

In today’s interconnected digital world, cybersecurity risks and resulting breaches are a fundamental concern to organizations and public policy setters. Accounting firms, as well as other firms providing risk advisory services, are concerned about their clients’ potential and actual breaches. Organizations cannot, however, eliminate all cybersecurity risks so as to achieve 100% security. Furthermore, at some point additional cybersecurity measures become more costly than the benefits from the incremental security. Thus, those responsible for preventing cybersecurity breaches within their organizations, as well as those providing risk advisory services to those organizations, need to think in terms of the cost-benefit aspects of cybersecurity investments. Besides investing in activities that prevent or mitigate the negative effects of cybersecurity breaches, organizations can invest in cybersecurity insurance as means of transferring some of the cybersecurity risks associated with potential future breaches.This paper provides a model for selecting the optimal set of cybersecurity insurance policies by a firm, given a finite number of policies being offered by one or more insurance companies. The optimal set of policies for the firm determined by this selection model can (and often does) contain at least three areas of possible losses not covered by the selected policies (called the Non-Coverage areas in this paper). By considering sets of insurance policies with three or more Non-Coverage areas, we show that a firm is often better able to address the frequently cited problems of high deductibles and low ceilings common in today’s cybersecurity insurance marketplace. Our selection model facilitates improved risk-sharing among cybersecurity insurance purchasers and sellers. As such, our model provides a basis for a more efficient cybersecurity insurance marketplace than currently exists. Our model is developed from the perspective of a firm purchasing the insurance policies (or the risk advisors guiding the firm) and assumes the firm’s objective in purchasing cybersecurity insurance is to minimize the sum of the costs of the premiums associated with the cybersecurity insurance policies selected and the sum of the expected losses not covered by the insurance policies.     

Business in Richmond attacks health care costs

Like a fever that will not break, health care premiums continue to climb relentlessly, yet remedies have been hard to come by. Employers, for the most part, have accepted ever-rising expenditures as the price of good employee relations. And federal regulations designed to control medical costs have proven weak. The road to recovery begins, this author tells us, when a health maintenance organization, or HMO, enters a community, because its prepayment approach upsets the medical profession's conventional fee-for-service rules. Thus it quickly evokes competitive responses from other health care providers, who must become equally cost-conscious or lose their market share. HMOs need advocates, however, to spread as rapidly as their potential warrants. Drawing on recent events in Richmond, Virginia, the author shows how a city's business leadership can become the catalyst for changing the health care system.