The Eighth Circuit may have significantly changed the self-funded world. The majority in the Tovar v. Essentia Health (187 F. Supp. 3d 1055, 2016 U.S. Dist. LEXIS 62529 (D. Minn., May 11, 2016)) decision appears to say that where the self-funded document administered by a TPA is based upon the group insurance policy issued by the insurance carrier related to the TPA, the TPA can be sued for the plan language. The dissent had it right by recognizing the difference between an insurance policy and insurer that administers it, and a self-funded plan, and roles of the plan sponsor and TPA. Unfortunately, the dissent accentuates the erroneous position taken by the majority.
Watch those plan documents and watch the administrative services agreements. Relying on ERISA and the role of the plan sponsor may not be enough.
