Roger M. Baron

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A number of recent federal court opinions, including a decision by the United States Supreme Court, have denied plans falling under the Employee Retirement Income Security Act of 1974 ("ERISA) the opportunity to seek reimbursement for medical expenses paid for plan members. Without delving into the weighty policy considerations that support these decisions, the courts rendering these decisions have constrained their analyses to simple statutory construction of the relevant provisions of ERISA. As a result, these decisions might appear to be hyper-technical on the surface. However, significant policy considerations underlie the results. This Article will explore the policy considerations that support the notion that reimbursement should be denied to ERISA plans. As suggested in the title to this Article, one does not have to go far to find them; they are as significant and as obvious as an elephant would be in the courtroom; an elephant that exists but is not acknowledged. This Article will also address opposing considerations, which are urged in support of reimbursement. ...

This Article will also address the related assertion by ERISA plans and their insurers that without reimbursement, plan funds are drained, which adversely and significantly impacts rates. This Article will also address the argument that without reimbursement, the insured receives a "windfall-an argument which still occasionally arises. The sad fact in the vast majority of these critical injury cases is that the insured is left not only seriously impaired for life, but, if reimbursement is permitted, the insured is also left financially destitute.