Recently we told you about how your lawsuit against your insurer can be “preempted” by ERISA if the type of policy you have falls under the guidelines for that law. This means that your case would be pulled out of a normal state court and tried in a federal one where the laws are far less friendly towards people fighting against insurance companies behaving badly.
Obviously, this is not something that you want, but there isn’t much you can do to keep it from happening. Whether or not a lawsuit will be tried under ERISA depends wholly on the type of policy that you have, and far too few of them in the US are exempt from ERISA.
Last time we mentioned five kinds of policies that ERISA can’t touch:
- Policies from a government agency
- Policies from a church
- Multiple Employer Trusts
- Plans set up by the insurance industry
- Plans only created to comply with disability laws, worker’s compensation, or unemployment
- Insurance through family businesses, sole proprietorships, closely held corporations, and partnerships – but only sometimes
Below you’ll find five more potential ways to avoid preemption.
Additional Plans Not Covered By ERISA
“Pass-through” plans. Sometimes the employer is just a “conduit” through which employees pay for their insurance – ERISA does not cover these plans.
Plans with no ERISA intentions. Employers have to follow the statutory directives of ERISA to set up a plan covered under the law. If they mess up or simply don’t intend to do this, ERISA won’t cover it.
Union and other professional plans. If you get your insurance through a labor union, an employee organization, or a professional association, it is not governed by ERISA.
Plans sold by entrepreneurs. If an entrepreneur sells you an insurance plan, it’s not an ERISA policy.
Plans for employers and dependents. ERISA preemption sometimes won’t occur in the case of complaints from actual employers or their dependents, but it depends on the circumstances.
As you might imagine, there’s quite a bit of nuance and complication in the law. Anyone who’s ever unsure what kind of policy they have should talk to an expert so that they know what they’re dealing with if they decide to sue.
Whatever you do, make sure you work with a disability expert you trust who knows this area of the law. Don’t play games with your health. Check out our free e-book for more details about ERISA disability and be sure to stay up to date on new long term disability information through our weekly blogs!