April 01, 2013

The Evolving Law on Federal Preemption of Extracontractual Claims against Medicare Advantage Plans

John K. DiMugno

Federal preemption of state law remedies against health insurers and health maintenance organizations is an important factor contributing to the growth of managed care and prevalence of utilization review in the healthcare industry over the past quarter century. The U.S. Supreme Court’s broad interpretation of the preemptive reach of the Employee Retirement Income Security Act of 1974 (ERISA) has removed a significant deterrent to the adoption of managed care practices by employer-sponsored health plans: exposure to the full panoply of state law tort remedies, including punitive damages. The Court’s decisions have allowed employer-sponsored health plans to withhold payment for medical services recommended by a beneficiary’s treating physician, knowing that the beneficiary’s remedy for a wrongful refusal is an ERISA enforcement action—essentially a contractual remedy to recover withheld benefits.

While employer-sponsored health plans represent a large percentage of health insurance sold in the United States, Medicare is the single largest payor of health benefits. Congress has attempted to introduce private sector cost controls to the Medicare system through Medicare Advantage plans and their predecessor known as Medicare+Choice plans. In 2010, Medicare expenditures exceeded $520 billion and represented approximately 20 percent of total national healthcare expenditures. In 2011, approximately one-quarter of Medicare beneficiaries received their benefits through Medicare Advantage plans.

Given the financial incentives inherent in Medicare Advantage plans, in which the plan receives a fixed fee per patient per month (the capitation fees) and hence profits if the patient receives less care, and the vulnerability of the Medicare patient pool with its high utilization of big-ticket medical services, the incidence of contested utilization review decisions is likely to be significantly higher under these plans than under ERISA plans. Starting in 2014, the Patient Protection and Affordable Care Act (ACA) will limit Medicare Advantage plan administrative costs, profits, and expenditures on things other than health care. These limitations will only add to the financial pressures on Medicare Advantage plans and to their incentive to scrutinize proposed treatments. A critical question in litigation arising out of these utilization review decisions is whether these Medicare-sponsored health plans enjoy the same protection from state law remedies for flawed utilization review decisions that ERISA plans now enjoy.

The answer to this preemption question is fact specific and a function of the damages resulting from a Medicare Advantage plan’s denial of, or delay in approving, coverage. As a general rule, if the harm resulting from a Medicare Advantage plan’s utilization review mistakes can be remedied by a restoration of benefits, the patient is confined to remedies available through Medicare’s administrative dispute resolution process. But if a Medicare Advantage plan’s delay in approving, or refusal to approve, medical services recommended by a patient’s treating physician results in injuries that cannot be remedied through restoration of benefits, the patient may not be confined to the prescribed grievance process and may be able to sue the Medicare Advantage plan in state or federal court.

The analysis of the case law is further complicated by the fact that Congress did not add an express preemption provision to the Medicare Act until 1997. Even without an express preemption provision, the exclusive federal grievance procedures precluded application of state law to claims for Medicare benefits unless the plaintiff alleged injuries, such as wrongful death, that could not be remedied through the restoration of benefits. The introduction of an express preemption provision in 1997 created an additional hurdle for plaintiffs, but that hurdle has proved much easier to surmount than the preemption provision in the ERISA statute. As this article will show, plaintiffs have successfully argued that Medicare’s preemption provision applies only to state laws that specifically regulate Medicare Advantage plans. This leaves room for recovery of damages for collateral injuries resulting from a Medicare Advantage plan’s denial of benefits, or delay in paying benefits, under generally applicable statutes and common law. Recovery could be predicated, e.g., on the duty of due care reflected in negligence principles, the duty of good faith and fair dealing implied in all contracts, the duty to speak the truth imposed by consumer protection statutes, and special duties owed to the elderly in general under elder abuse statutes.

Exclusive Federal Dispute-Resolution Procedures Applicable to Medicare Advantage Plans

The federal Medicare law gives Medicare beneficiaries the option to contract with private health insurance plans to obtain their Medicare benefits in lieu of receiving those same benefits directly from the federal government. Known as Medicare Advantage plans, these private health insurance plans receive a set monthly capitation payment from the federal government for each enrolled Medicare beneficiary, and they bear the risk that benefits will exceed the per-beneficiary capitation payments. The federal government has no financial obligation to either the Medicare Advantage plan or its enrollees above the monthly capitation payment. However, the government has an interest in how the plan pays claims, both because the Medicare law requires that Medicare Advantage plan enrollees receive the same benefits as beneficiaries who elect to receive benefits directly from the federal government and because the payment practices of plans under current contracts will affect the cost of future contracts.

For these reasons, the Medicare Act subjects disputes over coverage and benefits under Medicare Advantage plans to the same administrative grievance procedures and limited judicial review as disputes over coverage and benefits provided directly by the federal Medicare program. The Medicare Act’s grievance provision, 42 U.S.C. section 405(g), requires that Medicare Advantage enrollees and their health providers submit disputes over coverage and benefits to a Department of Health and Human Services (HHS) administrative law judge whose decision can be appealed to the Medicare Appeals Council. Only after an enrollee or provider exhausts all administrative appeals can he or she file a lawsuit—against the HHS, not the Medicare Advantage plan—to obtain review of the administrative ruling.

Disputes over the Provision of Medicare Benefits

Federal courts have consistently held that claims that “at bottom” seek to recover Medicare benefits must be pursued within the administrative scheme set forth in section 405(g). In Heckler v. Ringer, 466 U.S. 602, 624 (1984), the Supreme Court held that the refusal of the secretary of HHS to approve a surgical procedure was “inextricably intertwined with what . . . is in essence a claim for benefits” under the Medicare Act and thus arose under the Medicare Act. Although the plaintiffs in Ringer had couched their claim as a challenge to the secretary’s decision-making “procedure,” the Court concluded that the claims were “at bottom” an effort to obtain payment through Medicare for a surgical procedure. Accordingly, the Court held that section 405(g) was “the sole avenue for judicial review for all” the plaintiffs’ claims. Id. at 615. In so ruling, the Court determined that a plaintiff’s labeling of his or her Medicare-related allegations as claims concerning something other than “benefits” is immaterial; the relevant inquiry, rather, is whether the complaint seeks “the immediate payment of benefits” or “a right to future payments.” Id. at 621. If so, the claim is subject to Medicare exhaustion and review in federal court—under exclusive federal Medicare standards—only in accordance with section 405(g) and the pertinent Medicare regulations.

Courts have protected the federal government’s exclusive domain over Medicare Advantage claims regardless of whether the enrollee or the provider challenges the plan’s benefit determination. For example, in Ex parte Blue Cross & Blue Shield of Alabama, 90 So. 3d 158 (Ala. 2012), the Alabama Supreme Court determined that a nursing home’s common law breach of contract and tort claims against a Medicare Advantage plan based on allegations that the plan determined coverage in a manner inconsistent with its obligations under the federal Medicare Act were “inextricably intertwined” with claims for coverage and benefits under the Medicare Act and thus were subject to the mandatory administrative procedures and limited judicial review set forth in section 405. The dispute before the Alabama high court arose out of a contract between the Medicare Advantage plan, Blue Cross and Blue Shield of Alabama’s Blue Advantage plan (BCBS), and a nursing home, Southern Springs, that contracted with BCBS to provide healthcare services to BCBS enrollees. Consistent with the requirements of the Medicare Act, the contract provided that Southern Springs would provide, and BCBS would pay for, the same benefits BCBS enrollees would have received had they opted to receive their benefits directly from the federal government. The dispute was over how to determine whether Medicare covered a stay in a nursing home, the length of stay covered, and payment for the stay. Southern Springs maintained that BCBS must base its coverage determinations on the Resource Utilization Group Guidelines (RUG Guidelines) developed by the Medicare program. BCBS disagreed, arguing that it was free to use proprietary claims management software to make coverage determinations.

Southern Springs sued BCBS in Alabama state court on behalf of itself and a putative class of Alabama nursing homes, asserting claims of breach of contract, intentional interference with business relations, negligence and/or wantonness, and unjust enrichment. BCBS removed the case to federal district court, arguing that Southern Springs’ claims arose under the Medicare Act and that the Medicare Act “completely preempts” Southern Springs’ state law claims. Southern Springs moved the federal court to remand the case to the state court, arguing that its complaint did not allege a federal cause of action and thus the federal court lacked subject matter jurisdiction. Southern Springs maintained that federal law preempts a well-pleaded state law complaint only when a federal statute’s civil enforcement scheme evidences Congress’s intent to occupy the entire field. The Medicare Act, in contrast to ERISA, evidences no such congressional intent, according to Southern Springs, and thus any preemption defenses would have to be raised as affirmative defenses in the state court lawsuit. The federal court agreed and granted Southern Springs’ motion to remand.

On remand, BCBS moved for a judgment on the pleadings based on the failure of Southern Springs to resort to the Medicare Act’s grievance procedures. After the trial court denied the motion, BCBS petitioned the Alabama Supreme Court for a writ of mandamus directing the trial court to dismiss the claims against BCBS.

The Alabama high court granted BCBS the relief it requested. The outcome-determinative question before the court was whether Southern Springs’ claim arose under the Medicare Act. Relying on Ringer, the Alabama Supreme Court reasoned that the dispute between Southern Springs and BCBS was “at bottom” a claim that BCBS enrollees were denied coverage/benefits to which they are entitled under the Medicare Act.

Courts, however, have not been consistent in their classification of claims brought by providers. In RenCare, Ltd. v. Humana Health Plan of Texas, Inc., 395 F.3d 555 (5th Cir. 2004), for example, the Fifth Circuit held that a dispute between a provider and a Medicare Advantage plan over payment did not arise under Medicare because the provider had already provided the services, and thus neither the enrollees nor the government had a financial interest in the dispute. The Fifth Circuit reasoned that because the enrollees had received the benefits in question and the provider had waived the right to pursue payment from the enrollees and agreed to pursue payment exclusively from Humana, the Medicare administrative process was inapplicable. Thus, the provider’s claim could not be said to be “inextricably intertwined” with a claim for Medicare benefits. In Ex parte Blue Cross & Blue Shield of Alabama, the Alabama Supreme Court distinguished RenCare on the ground that Southern Springs alleged that BSBS’s refusal to rely on the RUG Guidelines deprived enrollees of services to which they were entitled.

State Law Claims Based on Injuries That Cannot Be Remedied through a Restoration of Benefits

Courts applying the Ringer analysis have held that claims that cannot be redressed through retroactive payment of benefits—such as a wrongful death resulting from a plan’s delay in approving treatment—are not “inextricably intertwined” with a claim for Medicare benefits and thus are not subject to Medicare’s administrative process. In McCall v. PacifiCare of California, Inc., 21 P.3d 1189 (Cal. 2001), for example, the California Supreme Court held that state law claims based on wrongful delays in referrals to specialists, and ensuing medical injuries, did not arise under the Medicare Act and were cognizable in state court. Finding a “clear implication . . . Congress left open a wide field for the operation of state law pertaining to standards for the practice of medicine and the manner in which medical services are delivered to Medicare beneficiaries,” the McCall court determined that:

The “inextricably intertwined” language in Ringer is more correctly read as sweeping within the administrative review process only those claims that, “at bottom,” seek reimbursement or payment for medical services, but not a claim . . . which . . . as pleaded incidentally refers to a denial of benefits under the Medicare Act.

Id. at 1197, 1199.

After individually reviewing the causes of action pleaded by the plaintiffs, McCall concluded:

Because the [plaintiffs] may be able to prove the elements of some or all of their causes of action without regard, or only incidentally, to Medicare coverage determinations, because . . . none of their causes of action seeks, at bottom, payment or reimbursement of a Medicare claim or falls within the Medicare administrative review process, and because the harm they allegedly suffered thus is not remediable within that process, it follows that the Court of Appeal correctly reversed the trial court[].

Id. at 1200; accordArdary v. Aetna Health Plans of Cal., Inc., 98 F.3d 496 (9th Cir. 1996) (holding that wrongful death claim arising from plan’s failure to approve emergency airlift was not subject to Medicare Act’s administrative grievance procedure).

Congressional Action to Preempt State Claims

In the wake of decisions such as McCall and Ardary, Congress added a preemption provision to the Medicare Act in 1997, and in 2003 strengthened that provision significantly. The Medicare Act’s preemption provision, 42 U.S.C. section 1395w-26(b)(3), now reads: “The standards established under this part shall supersede any State law or regulation (other than State licensing laws or State laws relating to plan solvency) with respect to [Medicare Advantage (MA)] plans which are offered by MA organizations under this part.”

Although the language of the preemption clause suggests a congressional desire to ensure uniform federal regulation Medicare plans, the federal agency responsible for administering Medicare—formerly the Health Care Financing Administration (HCFA), now the Centers for Medicare and Medicaid Services (CMS)—have interpreted the Medicare Act’s preemption language in a manner that does not disturb the authority of the McCall/Ardary line of cases. Addressing the original preemption provision enacted in 1997, the HCFA took the position that the Medicare Act’s preemption reach extended only to state standards that “prevented compliance” with federal standards. The HCFA asserted that “Congress expected States, in some cases, to have more rigorous or more comprehensive standards for quality and consumer protection which would enhance, rather than duplicate or be subsumed under, the [federal] standards for quality and consumer protection.” Medicare Program; Establishment of the Medicare+Choice Program, 63 Fed. Reg. 34,968, 35,012 (June 26, 1998). The HCFA specifically mentioned the continued viability of “tort claims or contract claims under State law.” Id. at 35,013.

When Congress strengthened the preemption provision in 2003, the CMS acknowledged that the new language effectively “reversed [the old] presumption and provided that State laws are presumed to be preempted unless they relate to licensure or solvency.” Medicare Program; Medicare Prescription Drug Benefit, 70 Fed. Reg. 4194, 4319 (Jan. 28, 2005). The CMS nevertheless cut a wide path for the continued application of state law in disputes with Medicare Advantage plans. Specifically, the CMS explained:

We continue to believe that generally applicable State tort, contract, or consumer protection law would not be preempted under [the Medicare Modernization Act (MMA)]. . . . [W]e believe that [the MMA] was intended to preempt State standards governing health plans, not generally applicable State laws, such as labor laws, employment law, tax laws, etc. that incidentally could have applicability to MA organizations. We believe that contract laws and tort laws fall in this category, as they do not apply to the organization based on its status as a health plan, but instead apply generally. . . . [W]e believe that an enrollee should still have State remedies available in cases in which the legal issue before the court is independent of an issue related to the organization’s status as a health plan or MA organization.

Medicare Program; Establishment of the Medicare Advantage Program, 69 Fed. Reg. 46,866, 46,913–14 (Aug. 3, 2004).

Initially, the CMS took the position that Congress intended to preempt only positive state laws and regulations, and not standards developed in cases. Ultimately, the CMS modified its position, declaring that “all State standards, including those established through case law, are preempted to the extent that they specifically would regulate MA plans, with exceptions of State licensing and solvency laws.” Medicare Program; Establishment of the Medicare Advantage Program, 70 Fed. Reg. 4588, 4665 (Jan. 28, 2005). At the same time, CMS reiterated that “[o]ther State health and safety standards, or generally applicable standards, that do not involve regulation of an MA plan are not preempted.” Id.

The CMS’s evolving interpretation of the 2003 preemption provision reflects the differences between express preemption and implied preemption of state law by federal statutes. In analyzing whether a federal statute preempts a state law, courts first examine the federal law’s preemption clause express language for evidence of Congress’s preemptive intent. A close examination of 42 U.S.C. section 1395w-26(b)(3) arguably reflects only an intent to preempt statutes and administrative regulations. The provision’s use of the term “standards” and the phrases “law or regulation” and “with respect to MA plans” suggests positive legislative or administrative enactments, not judge-made common law. But an analysis of a federal statute’s express preemption provision does not end the inquiry. Courts will infer preemptive intent “if the scope of the statute indicates that Congress intended federal law to occupy the legislative field, or if there is an actual conflict between state and federal law.” Altria Grp., Inc. v. Good, 555 U.S. 70, 76–77 (2008). Recognizing that state common law might conflict with federal Medicare standards, the CMS amended its position to allow that “all State standards,” whether expressed in judge-made common law, legislative enactments, or administrative rules, are implicitly preempted, but only to the extent they “specifically regulate” Medicare Advantage plans.

In practice, application of the CMS’s distinction between “generally applicable” laws and laws that “specifically regulate” Medicare Advantage plans has proved challenging. This is because the distinction does not turn on the label the plaintiff attaches to a cause of action, which is relatively easy to categorize, but on the source of the duty underlying the cause of action, which can be more elusive. A generally applicable cause of action (e.g., negligence) based on a duty derived from a statutory scheme that specifically regulates Medicare Advantage plans may fall within section 1395w-26(b)(3)’s preemptive reach. Consequently, what appear initially to be insignificant factual and pleading differences between two otherwise similar cases can prove outcome determinative.

A comparison of the results and reasoning in two recent California cases, Yarick v. PacifiCare of California, 102 Cal. Rptr. 3d 379, 385–86 (Ct. App. 2009), and Cotton v. StarCare Medical Group, Inc., 107 Cal. Rptr. 3d 767 (Ct. App. 2010), illustrates the premium placed on pleading in extracontractual claims against Medicare Advantage insurers. From the perspective of the families of the deceased Medicare Advantage enrollees, the two cases were identical. In both cases, an elderly enrollee in PacifiCare’s Secure Horizons Medicare Advantage plan slipped and broke his leg. Both enrollees went to the hospital to have their legs surgically repaired, after which they were transferred to rehabilitation facilities in which they were allegedly treated poorly. Their conditions deteriorated while at the rehabilitation facilities, and they both had to be taken back to the hospital. Due to the inadequate care at the rehabilitation facilities and PacifiCare’s alleged failure to approve their return to the hospital in a timely manner, they both died. Their families then sued PacifiCare for violation of a variety of common law duties. The trial courts in both cases sustained PacifiCare’s demurrers on the ground that the Medicare Act preempted the state law on which the suits were based. The court of appeal in Yarick affirmed, and the court of appeal in Cotton reversed.

From the perspective of the courts of appeal, the cases were quite different. In Yarick, the gravamen of the plaintiff’s claim was that PacifiCare allowed financial incentives built into its contracts with the enrollee’s providers to influence the speed with which it approved the enrollee’s return to the hospital and the manner in which he was treated once he returned. Specifically, the plaintiff alleged that PacifiCare’s capitation payments to providers were insufficient, forcing the providers to base patient care decisions on financial expediency rather than the patients’ reasonable medical needs. The plaintiff further alleged that PacifiCare failed to implement and utilize necessary quality control mechanisms that would require providers to give good medical care despite the financial incentives not to do so. These alleged contractual and structural flaws in PacifiCare’s plans all violated various provisions of California’s Knox-Keene Health Care Service Plan Act of 1975, Health and Safety Code sections 1340 et seq. Thus, although the plaintiff alleged “generally applicable” causes of action for negligence, willful misconduct, elder abuse, and wrongful death, the duties on which those causes of action were based were all derived from the Knox-Keene Act, which creates duties specifically applicable to health plans. Moreover, federal regulations under the Medicare Advantage program “address these same duties.” Yarick, 102 Cal. Rptr. 3d at 385–86.

The court therefore concluded that “[w]hile all common law claims against MA organizations are not preempted merely because of the organization’s MA status, these causes of action for breach of state statutory duties are preempted.” Id. at 387. The court explained that, “[i]f state common law judgments were permitted to impose damages on the basis of these federally approved contracts and quality assurance programs, the federal authorities would lose control of the regulatory authority that is at the very core of Medicare generally and the MA program specifically.” Id. at 386. In so ruling, the court narrowly construed section 1395w-26(b)(3)’s exception for state licensing laws, ruling that the exception is limited to state laws for becoming licensed, not state laws pertaining to a state’s ongoing supervision of a Medicare Advantage plan’s operation.

In Cotton, by contrast, the plaintiffs avoided basing their causes of action on duties specifically applicable to health plans. While the plaintiff in Yarick attributed PacifiCare’s delay in approving the enrollee’s transfer from the rehabilitation facility to incentives inherent in contractual relationships and the operating structure authorized under the Medicare Advantage program, the plaintiffs in Cotton alleged the delay resulted from disagreement among the providers and PacifiCare over financial responsibility for the enrollee’s treatment as a consequence of the enrollee having recently moved from Los Angeles to Anaheim Hills. Their complaint alleged causes of action for wrongful death, elder abuse, negligence, willful misconduct, constructive fraud, fraud, breach of fiduciary duty, and bad faith.

The Cotton court rejected PacifiCare’s preemption challenge to all but the plaintiffs’ constructive fraud cause of action, which, like the plaintiff’s claims in Yarick, was based on the financial incentives built into CMS-regulated contracts between PacifiCare and the providers. The court determined that the case was otherwise distinguishable from Yarick. The plaintiffs’ common law negligence, wrongful death, breach of fiduciary duty, fraud, and bad faith claims, as well as their statutory claims under California’s Elder Abuse Act, Welfare and Institutions Code section 15657, were all based on generally applicable duties and could all be proven without considerations of coverage determinations under CMS administrative standards.

Not all collateral injuries are as clear cut as the wrongful deaths suffered in Yarick and Cotton. Plaintiffs also may attempt to recover damages resulting from misrepresentations in a Medicare Advantage plan’s marketing materials under state consumer protection statutes and under common law fraud and fraudulent inducement theories. The Ninth Circuit recently refused to extend the exception to preemption recognized in Cotton for generally applicable statutes and common law torts to claims that the enrollee did not receive the benefits he or she expected based on the insurer’s marketing representations in Uhm v. Humana, Inc., 620 F.3d 1134 (9th Cir. 2010). The representations at issue in Uhm concerned prescription drug coverage under Part D of the Medicare Act, which was added in 2003 as part of the same legislation that amended the Medicare Advantage program’s preemption provision. Part D’s preemption provision is identical to the Medicare Advantage program’s preemption provision, section 1395w-26(b)(3), so the Ninth Circuit’s analysis applies with equal force to Medicare Advantage plans.

After determining that the plaintiff’s consumer protection act and fraud claims did not arise under the Medicare Act and thus were not subject to the Medicare Act’s exclusive grievance procedures, the court turned to the question of whether the preemption provision applied to the plaintiff’s claims. The court found that it did and that both claims fell within the Medicare Act’s preemptive reach. In so ruling, the court took an analytical route that differed markedly from the approach taken by the California appellate courts in Yarick and Cotton. Rather than ask whether the duties on which the plaintiff’s claims were based were generally applicable or specifically directed at managed care plans, the court asked whether his claims necessarily depended on federal Medicare regulations. In finding that they did, the court pointed to the CMS’s extensive regulation of marketing materials and plan marketing activities and the inconsistency between those regulations and the vague standards under the consumer protection statute. The court observed that allowing state consumer protection statute claims for “deceptive” practices could result in liability based on representations in marketing materials that the CMS previously had approved, which would undermine the uniformity of the Medicare Act’s standards.

The Ninth Circuit emphasized that its reasoning applied with equal force to the plaintiff’s fraud and fraud in the inducement claims. In contrast to Cotton, the court held that the Medicare Act expressly preempts common law causes of action, not just positive state enactments.

Conclusion

The scope of preemption of state law claims against Medicare Advantage plans remains unsettled. The CMS’s pronouncements on the scope of the Medicare Act’s preemption clause have achieved their goal of preserving state law remedies for catastrophic collateral injuries, such as wrongful death, for which the Medicare grievance process does not provide a remedy. But the CMS’s distinction between injuries for which Medicare provides a remedy and those that it does not, and the distinction between generally applicable duties and duties specifically applicable to managed care organizations, has the potential to undermine Congress’s stated goal of ensuring that Medicare managed care remains “a federal program operated under federal rules.” Emotional distress or economic injuries resulting from the wrongful denial of benefits, as well as punitive damages, are not compensable through the Medicare grievance process. Because mental anguish, economic loss, and punitive damages are recoverable damages for breach of generally applicable state law duties, the CMS’s pronouncements and cases such as McCall and Cotton provide the theoretical basis for recovery of a broad array of damages against Medicare Advantage plans. Unless Congress acts to clarify the scope of the Medicare Act’s preemptive reach, Medicare Advantage plan’s best hope for defeating such claims is to identify a federal standard and remedy applicable to the conduct in question, as Humana Inc. did in the Uhm litigation.

John K. DiMugno

John K. DiMugno (dimugno@pacbell.net) is an advisor, expert witness, writer, and frequent speaker on a wide variety of insurance coverage and bad faith issues affecting both policyholders and insurance companies. He is a former adjunct faculty member of the University of California at Berkeley, Boalt Hall School of Law, where he taught insurance law, and editor-in-chief of Insurance Litigation Reporter, California Tort Reporter, and California Insurance Law & Regulation Reporter. This article is derived from his extensive writings on Medicare Advantage insurance in Insurance Litigation Reporter, published by Thomson Reuters West. For additional analysis and authority for the points made in this article, please refer to his earlier writings, particularly the August 27, 2012, issue of Insurance Litigation Reporter, which is available in the Westlaw database and from Thomson Reuters West Customer Service.