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Pastimes : Clown-Free Zone... sorry, no clowns allowed
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To: Nadine Carroll who wrote (110769)6/29/2001 4:05:04 PM
From: Ilaine  Read Replies (3) of 436258
 
Re: HMO liability -

- there is no ERISA pre-emption for those who purchase their health care coverage individually, or are self-employed; or are a partner in a partnership with no employees; or are an employee of a government; or work for a religious organization; or if the employer doesn't make contributions to the plan. That still leaves about half of Americans covered by ERISA.

- many, but not all, states allow suits against HMOs on a variety of legal theories, generally some form of agency; these cases are fact-dependent - is the health care provider an employee or an independent contractor?

- HMOs which employ health care providers directly may be liable under respondeat superior - e.g., Kaiser Permanente employs nurses and technicians directly.

- if the health care provider is an independent contractor, there may be liability under apparant agency theories.

- some states, like California, have statutes which expressly provide for HMO liability in certain situations.

- if you want to sue the plan as a plan and it's covered by ERISA - you can still go to court but you have to comply with ERISA - you can force them to give you treatment that's covered, or you can force them to reimburse you for treatment that they denied.

Bottom line, it depends on the facts, and it depends on the state.
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