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Insurance Commissioner Announces Examination of Anthem’s Claims-Related Data

Insurance Commissioner Steve Poizner announced last week that his office will conduct an examination of Anthem Blue Cross’s claims-related data used by Anthem to justify its future rate filings. This comes after Anthem’s decision to withdraw its recent application to increase rates to thousands of insureds in California.  Here is the press release:

NEWS RELEASE

Insurance Commissioner Steve Poizner Announces Examination of Anthem’s Claims-Related Data

Full Independent Actuarial Review of Recently-Withdrawn Anthem Filing Also Released Insurance Commissioner Steve Poizner announced that the California Department of Insurance (CDI) had begun an effort to assess the validity of the claims data used by Anthem Blue Cross to justify future rate filings.

“As Anthem readies its new rate filing, I have directed auditors at the Department of Insurance to determine whether the underlying information used by Anthem to prepare these documents is fair and accurate. This review will investigate whether there are problems with their claims payments systems and data controls,” said Commissioner Poizner. “I will not allow insurers to inflate their rates based on faulty systems or inaccurate data.”

The examination, started in early April, is scrutinizing Anthem’s accounting and claims systems in regards to the recording and documenting of premiums and claims data, and a review of the information systems and controls in place. The examination includes a review of the Company’s paid claims database, premium database and information systems processes and controls.

The data analyzed in the exam is ultimately the input that goes into the calculation of the company’s medical loss ratio.

Commissioner Poizner also released the full independent, outside actuarial analysis performed by Axene Health Partners, LLC. The 145 page report was conducted over a 10-week period and required 500 hours of work by four licensed actuaries. A summary of the review is below and the entire review is available at our Web site at http://www.insurance.ca.gov.

Based upon a thorough review of Anthem’s calculations, Axene found numerous errors in the methodology used by Anthem to project total lifetime loss ratios. Correcting these errors resulted in lower lifetime loss ratios than initially calculated by Anthem.

The errors identified included:

Error #1: Double counting of aging in the calculation of underlying medical trend for the projection of total lifetime loss ratio.

Error #2: Anthem overstated the initial medical trend used to project claims for September 2009 for known risk factors.

Both of these errors are errors of math and not differences in actuarial opinion.

Two Major California Health Insurers to Cease Practice of Policy Rescissions

For several years, health insurers have been strongly criticized for engaging in post claim underwriting and improper policy cancellations, known in the law as “rescissions.”  The Insurance Commissioner has even recently regulated the practice.

Now, after this significant criticism and facing tougher federal regulation, two of California’s largest health insurers say they will stop rescinding policies.  WellPoint Inc., the parent of Anthem Blue Cross of California, and Blue Shield of California, made the announcement yesterday.  WellPoint Chief Executive Angela Braly said in a statement that the company’s “goal is to make reform work for our members and for the country.”

Even before this announcement, several health insurers in California had stopped (or largely stopped) policy rescissions.  Under the new federal Healthcare Act, insurers will be limited in their ability to rescind health insurance policies.  In 2014, this legislation will require insurers to sell policies to consumers regardless of preexisting conditions.  This will effectively preclude the practice of rescissions.

The Los Angeles Times reports that last year, only four such cancellations were reported to the managed healthcare department, down from 1,552 in 2005.  Since 2004, at least 5,000 Californians had their insurance policies rescinded by the state’s five largest health insurers — Anthem Blue Cross, Blue Shield, Health Net, Kaiser and PacifiCare.  That includes about 3,500 policies regulated by the Department of Managed Health Care and another 1,600 policies regulated by the Department of Insurance.

This is a wise and very practical move by Wellpoint.  Let’s see if other insurers who have not stopped the practice follow suit.

The California Insurance and Life, Health, Disability Blog at californiainsurancelitigation.com and at mslawllp.com All rights reserved

What Does a Deferential Standard of Review Mean in ERISA Cases? The U.S. Supreme Court Gives Some Clarification

The federal courts have for a long time struggled with how to apply the deferential standard of review to actions taken by ERISA plan administrators in light of the United States Supreme Court holding in Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989).  Firestone held that an ERISA plan administrator with discretionary authority to interpret a plan is entitled to deference in exercising that discretion.  Courts have reached different results on an important issue: is a plan administrator that incorrectly interprets a plan document still entitled to an abuse of discretion standard of review when courts review the administrator’s actions?  The Supreme Court answered that question in the affirmative in Conkright v. Frommert, __ U.S. __ (April 21, 2010).  The Court telegraphed how it would rule when it framed the issue as: “The question here is whether a single honest mistake in plan interpretation justifies stripping the administrator of that deference for subsequent related interpretations of the plan.”

This is the Court’s first foray into the post-Glenn era of ERISA.  In Metropolitan Life Insurance Co. v. Glenn, 554 U.S. __, 128 S. Ct. 2343 (2008), the Court reaffirmed Firestone’s adoption of a deferential standard of review under section 1132(a)(1)(B).  Glenn elucidated the Court’s statement in Firestone and directed courts to proceed by “taking account of several different, often case-specific, factors, reaching a result by weighing all together.”  Id. at 2350.  The Court observed that a conflict of interest “should prove more important (perhaps of great importance) where circumstances suggest a higher likelihood that it affected the benefits decision,” and “should prove less important (perhaps to the vanishing point) where the administrator has taken active steps to reduce potential bias and to promote accuracy.” Id.

Conkright involved Xerox Corporation’s pension plan (“Plan”) in which Xerox acted as the plan administrator (“Plan Administrator”).   The Plan granted the Plan Administrator broad discretion to “[c]onstrue the Plan” and “to take such action as may be necessary to correct [any] defect, rectify [any] omission or reconcile [any] inconsistency”.

Respondents were employees who left Xerox in the 1980’s, received lump-sum distributions of retirement benefits earned up to that point, and were later rehired.  To account for the past distributions when calculating respondents’ benefits, the Plan Administrator initially interpreted the Plan to call for an approach that has come to be known as the “phantom account” method.  Respondents challenged that method in an action under the Employee Retirement Income Security Act of 1974 (“ERISA”).

The District Court granted summary judgment for the Plan, but the Second Circuit vacated and remanded, holding that the Plan Administrator’s interpretation was unreasonable and that Respondents had not received adequate notice that the phantom account method would be used to calculate their benefits.  On remand, the Plan Administrator proposed a new interpretation of the Plan that accounted for the time value of the money Respondents had previously received.  The District Court declined to apply a deferential standard to this interpretation, and adopted instead an approach proposed by Respondents that did not account for the time value of money.  The District Court ordered the Plan Administrators to pay a lump sum in the amount of the difference between their total accrued benefits and the prior lump sum distribution, without any reference to phantom accounts or hypothetical investment gains.

Affirming in relevant part, the Second Circuit held that the District Court was correct not to apply a deferential standard on remand, and that the District Court’s decision on the merits was not an abuse of discretion.  The Second Circuit stated that it was unclear whether a de novo or arbitrary and capricious standard of review applied.  It found, however, that “under either an arbitrary and capricious standard or as a matter of law,” that the Plan Administrator’s use of the phantom account method was a violation of ERISA.

The Supreme Court reversed, holding that the District Court should have applied a deferential standard of review to the Plan Administrator’s interpretation of the Plan on remand.  The Court addressed the standard for reviewing the decisions of ERISA plan administrators in light of Firestone.  Firestone looked to “principles of trust law” for guidance.  Id. at 111.  Under trust law, the appropriate standard depends on the language of the instrument creating the trust.  In Firestone the court held that when a trust instrument gives the trustee “power to construe disputed or doubtful terms, . . . the trustee’s interpretation will not be disturbed if reasonable.”  Id.  The Court explained that under Firestone and the Plan’s terms, the Plan Administrator would normally be entitled to deference when interpreting the Plan.  The Court of Appeals, however, crafted an exception to Firestone deference, holding that a court need not apply a deferential standard when a plan administrator’s previous construction of the same plan terms was found to violate ERISA.

The Court found that the Second Circuit’s “one-strike-and-you’re-out” approach had no basis in Firestone.  The Court explained that the Plan granted the Plan Administrator general interpretive authority without suggesting that the authority was limited to a first effort to construe the Plan and noted that although trust law does not resolve the specific question of whether courts may strip a plan administrator of Firestone deference after one good faith mistake, guiding principles underlying ERISA do.  The Court placed significant importance on the conclusion that Firestone deference serves the “interest of uniformity, helping to avoid a patchwork of different interpretations of a plan, like the one here, that covers employees in different jurisdictions—a result that ‘would introduce considerable inefficiencies in benefit program operation, which might lead those employers with existing plans to reduce benefits, and those without such plans to refrain from adopting them.’” The Court, seemingly annoyed at the District Court’s interpretation of the Plan that did not include the time value of money, recognized that according to actuaries this interpretation was “highly unforeseeable.”

Respondents asserted that deference is less important once a plan administrator’s interpretation has been found unreasonable, but the court rejected this, stating that the interests in efficiency, predictability, and uniformity do not suddenly disappear simply because of a single honest mistake.

The Court dismissed Respondents’ claim that plan administrators will adopt unreasonable interpretations of their plans, receiving deference each time, thereby undermining the prompt resolution of benefit disputes, driving up litigation costs, and discouraging employees from challenging plan administrators’ decisions.  The Court explained that these concerns were “overblown.”  But, the Court acknowledged that multiple erroneous interpretations of the same plan provision, even if issued in good faith, could support a finding that a plan administrator is too incompetent to exercise his discretion fairly.  The Court determined that applying a deferential standard of review also does not mean that the plan administrator will always prevail on the merits.  It means only that the plan administrator’s interpretation “will not be disturbed if reasonable.”

The California Insurance and Life, Health, Disability Blog at californiainsurancelitigation.com and at mslawllp.com All rights reserved

U.S. Supreme Court Hears Oral Arguments in Hardt v. Reliance Standard Life Insurance: Under What Circumstances Can a Court Award Attorneys’ Fees in ERISA Actions?

The U.S. Supreme Court heard oral arguments yesterday in the important ERISA disability case of Hardt v. Reliance Standard Life Insurance (09-448).  In that case, Bridget Hardt filed suit, arguing that Reliance Standard Life Insurance Co. wrongly denied her claim for long-term disability benefits.  The district court found that Reliance’s original decision denying benefits disregarded pertinent medical evidence in violation of ERISA and found that the decision was otherwise unsupported by substantial evidence. Based on those findings, the district court remanded the matter to Reliance for reconsideration, ordering it to make a new benefits determination, after which it finally granted the benefits due. The district court then awarded Hardt $39,149 in attorney fees.

The Fourth Circuit Court of Appeals reversed, holding that section 502(g)(1) of ERISA provides a district court discretion to award attorney fees only to a prevailing party, and Hardt was not a prevailing party because her only request for relief was the award of benefits, which the district court did not award.

The questions presented were: (1) Whether ERISA section 502(g)(1) provides a district court with discretion to award reasonable attorney’s fees only to a prevailing party; and (2) whether a party is entitled to attorney’s fees pursuant to section 502(g)(1) when she persuades a district court that a violation of ERISA has occurred, successfully secures a judicially ordered remand requiring a redetermination of entitlement to benefits, and subsequently receives the benefits sought on remand.

The justices interrupted both sides frequently during oral throwing out hypothetical questions in an apparent effort to find a rule that would work in situations where a result was achieved, even though it was not based on the award sought and did not result from a judgment.  There were many questions around the issue of a plan participant achieving substantial success with a remand to the claim administrator.  It appears that the court is poised to allow an award of attorney’s fees even if a plan participant does not obtain an award of benefits in litigation or does not achieve a judgment.  It is interesting that the Court’s new decision in Conkright v. Frommert, __ U.S. __ (April 21, 2010) came up five times in the context that this decision encourages remands, which will limit the opportunity of plan participants to obtain judicial decisions.  Indeed, rather than making a judicial decision, the decision makes it likely that the plan participant would prevail before the plan administrator.  Thus, given Conkright, denying an award of attorney’s fees in these types of situations will, according to Justice Roberts, “severely limit the circumstances under which Plaintiffs are entitled to fees.” The transcript is here.

The California Insurance and Life, Health, Disability Blog at californiainsurancelitigation.com and at mslawllp.com All rights reserved

Reasonable Reliance on Erroneous SPD Needed to Establish Entitlement to Additional ERISA Benefits

What happens when an ERISA plan provides for a certain level of benefits and the required summary plan description (“SPD”) given to plan participants provides for greater benefits?  The District Court for the Central District of California answered that question recently with its holding in Skinner v. Northrop Grumman Retirement Plan B, 2010 U.S. Dist. LEXIS 6591 (C.D. Cal. Jan 26, 2010).  In that case, the court held that former employees who received an inaccurate SPD were not entitled to increased retirement benefits as a result of the error.  In so ruling, the court determined that plaintiffs failed to demonstrate “reasonable reliance” on the SPD, which plaintiffs contended did not provide them sufficient notice of the plan’s offset provision.  The district court applied the standard set by the Ninth Circuit in reversing a prior ruling granting a motion for summary judgment wherein the court, in an unpublished decision in Skinner v. Northrop Grumman Retirement Plan B, 334 Fed. Appx. 58, 2009 WL 1416725, *1 (9th Cir. May 21, 2009), concluded:

On remand, the district court should reconsider each of [Plaintiffs’] claims in light of our conclusion that (1) the 2003 SPD’s incorporation of the 1998 SPD by reference did not notify [Plaintiffs] that the annuity equivalent offset would apply to their transition benefits, and (2) in terms of [Plaintiffs’]  expectations for Part B of the transition benefit, the 1998 SPD’s description of the offset’s limited applicability controls over the 2003 Restatement’s description of the offset as universally applicable. (emphasis original)

Although plaintiffs disagreed, the court adopted defendants’ argument that the Ninth Circuit required a showing of “reasonable reliance.”  The district court reasoned that providing an additional benefit absent a showing of reasonable reliance would provide a windfall for the former employees and that is a “result abhorred by ERISA.”  The court further explained that although the Ninth Circuit has not addressed this issue specifically, a majority of circuits have so held at *24-*25:

Although the Ninth Circuit has not directly decided  whether reasonable reliance on a defective SPD is required in order to recover under its terms, three district courts in this Circuit — including one decision affirmed by the Ninth Circuit — have held that reasonable reliance is required in order to recover for a claim based on a defective SPD. For example, in Adams, which was affirmed by the Ninth Circuit, the district court found “that reasonable reliance is necessary before a plaintiff can recover under an SPD that conflicts with a [plan document].” Adams v. J.C. Penney, 865 F.Supp. 1454, 1460 (D. Or. 1994). In Kaiser Permanente Plan v. Bertozzi, 849 F.Supp. 692, 698 (N.D. Cal. 1994), the court held that “an employee who wishes to enforce the terms of an SPD, in lieu of conflicting terms contained in the actual plan, must first prove that he or she reasonably relied on those terms.” Similarly, in Berry v. Blue Cross, 815 F.Supp. 359, 364-65 (W.D. Wash. 1993), the court held that “an employee must have relied on a plan summary in order to prevail in a claim based on the language of the summary.” The holdings of Adams, Bertozzi, and Berry requiring reasonable reliance on a defective SPD are also consistent with the long line of Ninth Circuit cases requiring reliance before allowing recovery for alleged ERISA disclosure violations. (Citations and footnotes omitted).

Benefits that have already been accrued are governed by ERISA section 204(g)(1), which states: “[t]he accrued benefit of a participant under a plan may not be decreased by an amendment of the plan.”  However, the court rejected plaintiffs’ argument that defendants “retroactively altered the Plan, and retroactively reduced benefits” because they “reduced benefits already vested in participants and beneficiaries.”  Id. at *30.

This case is again on appeal to the Ninth Circuit so we will soon see if the district court was correct in adopting “reasonable reliance” standard.

The California Insurance and Life, Health, Disability Blog at californiainsurancelitigation.com and at mslawllp.com All rights reserved

California Court Finds Coverage for Patent Infringement Claims Under CGL Policies

In a case of first impression, the Ninth Circuit Court of Appeals held, for the first time under California law, that patent infringement can be covered as a “misappropriation of advertising ideas” under the advertising injury coverage of a general liability policy, where the patent is on a method of web based advertising.

In Hyundai Motor America v. National Union etc. et al., No. 08056527(April 5, 2010) Hyundai Motor America was sued for patent infringement after placing certain “build your own vehicle” features on its website. As a result, Hyundai sought a defense from its liability insurers under a comprehensive general liability policies (“CGL”) issued by National Union Fire Insurance Co. of Pittsburgh and American Home Assurance Co. Hyundai (“Defendants”)  claimed that the alleged patent infringement concerned an advertising method and thus, the lawsuit alleged an “advertising injury” as defined in the insurance policy. The insurers disagreed and declined to defend Hyundai. Consequently, Hyundai represented itself in the underlying patent infringement action.

Hyundai later sued Defendants in this diversity action, seeking to recover its defense costs in the earlier third-party action. The district court agreed with Defendants that the alleged patent infringement did not constitute an “advertising injury” under the insurance policy and granted summary judgment to Defendants. The Ninth Circuit reversed and remanded finding that it was covered under the advertising injury coverage of the CGL policy . The court held that to establish a duty to defend for an “advertising injury,” the insured must have been engaged in advertising during the policy period when the alleged injury occurred, the allegations must have created a potential for liability under a covered offense, and a causal connection must exist between the alleged injury and the advertising. The court explained that the term “advertising” means “widespread promotional activities usually directed to the public at large,” but it does not encompass “solicitation.”

In relying on Amazon.com International, Inc. v. American Dynasty Surplus Lines Insurance Co., 85 P.3d 974 (Wash. Ct. App. 2004), the court distinguished its case with those cases dealing with more traditional types of patent infringement claims that are not covered as follows:

We find support for our conclusion in the persuasive authority, Amazon.com International, Inc. v. American Dynasty Surplus Lines Insurance Co., 85 P.3d 974 (Wash. Ct. App. 2004) (applying Washington law).3 In that case, Ama zon.com used music-preview technology on its website; a company named Intouch sued Amazon.com for patent infringement; and Amazon.com’s insurers declined to defend it. Id. at 975-76. In addressing Amazon.com’s claim against the insurers, the court held:

The misappropriation [of advertising ideas] must occur “in the elements of the advertisement itself– in its text, form, logo, or pictures–rather than in the product being advertised.” [Iolab Corp. v. Seaboard Sur. Co., 15 F.3d 1500, 1506 (9th Cir. 1994).]

Patent infringement arising from the manufacture of an infringing product is not an advertising injury even if the infringing product is used in advertising. [Id.] But patent infringement may constitute an advertising injury “where an entity uses an advertising technique that is itself patented.” [Id. at 1507 n.5.] That was the essence of Intouch’s allegation against Amazon. . . . Intouch alleged that its patented music preview technology was an element of Amazon’s advertisement. The Intouch complaint thus conceivably alleged misappropriation of an [advertising] idea . . . .

Amazon.com, 85 P.3d at 977 (footnotes omitted; footnote citations in brackets). The same analysis applies here: Hyundai “use[d] an advertising technique that is itself patented,” and “[t]hat was the essence of [Orion’s] allegation against [Hyundai].” Id.

This is the first time that a court, interpreting California law, has specifically held that patent infringement can constitute an advertising injury that may be covered under a liability policy, where the patent is on an advertising process as opposed to a patent on the product being advertised.

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