Forever indebted to Judge Young, bard of #ERISA, for his #preemption dirge in Andrews-Clarke, 984 F. Supp. 49 (D. Mass. 1997). It's a masterful lamentation on entwined tragedies: Mr. Clarke's death and ERISA preemption's endurance.
🧵The Elegy of Andrews-Clarke:
🧵The Elegy of Andrews-Clarke:
https://twitter.com/masslw/status/1369709160552599553
An #ERISA plan covered Mr. Clarke,
with pre-utilization review.
"As a consequence of their failure to pre-approve" his admission to inpatient rehab
"Clarke never received the treatment
he so desperately required,
suffered horribly, and
ultimately died needlessly at age 41."
with pre-utilization review.
"As a consequence of their failure to pre-approve" his admission to inpatient rehab
"Clarke never received the treatment
he so desperately required,
suffered horribly, and
ultimately died needlessly at age 41."
His widow & 4 children sought redress.
The Plan removed to Judge Young's Court and
"just as promptly,
asked this Court to throw her out
without hearing the merits of her claim.
This, of course, is ridiculous.
The tragic events set forth in [her] Complaint
cry out for relief."
The Plan removed to Judge Young's Court and
"just as promptly,
asked this Court to throw her out
without hearing the merits of her claim.
This, of course, is ridiculous.
The tragic events set forth in [her] Complaint
cry out for relief."
Their cause to honor a contract
"pre-dates #MagnaCarta.
It is the very bedrock of our notion of individual autonomy and property rights.
Nevertheless, this Court had no choice but to pluck [the] case out of the state court
and then
to slam the courthouse doors in her face."
"pre-dates #MagnaCarta.
It is the very bedrock of our notion of individual autonomy and property rights.
Nevertheless, this Court had no choice but to pluck [the] case out of the state court
and then
to slam the courthouse doors in her face."
"This case, thus, becomes yet another illustration
of the glaring need
for #Congress to amend #ERISA
to account for the changing realities
of the modern health care system."
[Still true, 24 years hence.]
of the glaring need
for #Congress to amend #ERISA
to account for the changing realities
of the modern health care system."
[Still true, 24 years hence.]
"#ERISA has evolved
into a shield of immunity
which thwarts the legitimate claims
of the very people it was designed to protect.
The shield of near absolute immunity
simply cannot be justified.
What went wrong?”
into a shield of immunity
which thwarts the legitimate claims
of the very people it was designed to protect.
The shield of near absolute immunity
simply cannot be justified.
What went wrong?”
"#ERISA—The Legal 'Pac Man'"
Indiscriminately
gobbling state laws and remedies
it was never intended to supplant.
Passed in the bygone era of FFS,
ERISA is ill-suited
to the consequences
of managed care
and realities of modern health care.
Indiscriminately
gobbling state laws and remedies
it was never intended to supplant.
Passed in the bygone era of FFS,
ERISA is ill-suited
to the consequences
of managed care
and realities of modern health care.
"Faced by the absurd result here,
the task of reforming #ERISA
'so that it may continue to serve its noble purpose of safeguarding the interests of employees'
falls squarely upon the shoulders of #Congress."
the task of reforming #ERISA
'so that it may continue to serve its noble purpose of safeguarding the interests of employees'
falls squarely upon the shoulders of #Congress."
#ERISA = an "example
of the classic observation
that it is a great deal more difficult for #Congress
to correct flawed statutes
than it is to enact them in the first place
because interests coalesce
around the advantageous aspects of the status quo."
-Catherine Fisk @BerkeleyLaw
of the classic observation
that it is a great deal more difficult for #Congress
to correct flawed statutes
than it is to enact them in the first place
because interests coalesce
around the advantageous aspects of the status quo."
-Catherine Fisk @BerkeleyLaw
Clarke's death is "extraordinarily troubling
Even more disturbing to this Court is
the failure of Congress to amend a statute that,
due to the changing realities of the modern health care system,
has gone conspicuously awry from its original intent.
Does anyone care?
Do you?"
Even more disturbing to this Court is
the failure of Congress to amend a statute that,
due to the changing realities of the modern health care system,
has gone conspicuously awry from its original intent.
Does anyone care?
Do you?"
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