Current Issues

________________________________________________________________

   E M P L O Y E E   B E N E F I T S ,   C O M P E N S A T I O N
                   A N D   P E N S I O N   L A W
                 Vol. 2, No. 23: December 13, 2001
_________________________________________________________________

Publisher:     LSN Subject Matter Journals
                a division of
                Social Science Electronic Publishing, Inc. (SSEP)
                and Social Science Research Network (SSRN)

Editor:        PAMELA J. PERUN
                Urban Institute
                Mailto:pamela@planetnow.com

Leading Social Science Research Delivered To Your Desktop
http://www.SSRN.Com/

___________________________________________________________

                       Topic of This Issue:
                          Current Issues
    ___________________________________________________________

SEARCHING THE SSRN ELECTRONIC LIBRARY
To search the entire SSRN Electronic Library by author, title,
JEL code, or full text of the abstracts in our database, please
visit http://papers.ssrn.com/

To browse all abstracts published in this journal, please visit
http://www.ssrn.com/link/benefits-compensation-pension-law.html

REDISTRIBUTION
SSEP provides permission to redistribute single copies of this
journal. No one may charge for redistribution, and the issue
must be distributed in its entirety.

SIGN OFF
To stop delivery of one or more of the SSRN journals, write to
Mailto:Remove@SSRN.Com Include the JOURNAL name or the NETWORK
name or ALL in the subject line. If your address has changed, let
us know by writing to Mailto:AddressChg@SSRN.Com

ALIGNMENT
If this document is misaligned, please set type face to a
non-proportional font such as Courier 10.

PAPER DOWNLOADS
If you need assistance downloading papers from our web site,
please contact Mailto:Support@SSRN.Com

T A B L E of C O N T E N T S
_________________________________________________________________

NEW and FORTHCOMING ARTICLES

"Pegram v. Herdrich: On Peritonitis, Preemption, and the Elusive
Goal of Managed Care Accountability"
       Journal of Health Politics, Policy and Law, Vol. 26, No. 4,
       August 2001
      PETER J. HAMMER
         University of Michigan Law School

"Defined Contribution Health Benefits"
       EBRI Issue Brief, No. 231, March 2001
      PAUL FRONSTIN
         Employee Benefit Research Institute (EBRI)

"Defined Contribution Health Benefits: The Next Evolution?"
       EBRI Notes, Vol. 22, No. 8, August 2001
      STEVE BLAKELY
         Employee Benefit Research Institute (EBRI)

"Employee Benefits Considerations in Joint Ventures"
       Tax Lawyer, Vol. 54, No. 3, Spring 2001
      SUSAN P. SEROTA
         Pillsbury Winthrop LLP

"Phased Retirement: Leaving the Labor Force"
       EBRI Notes, Vol. 22, No. 9, September 2001
      DAVID RAJNES
         Employee Benefit Research Institute (EBRI)

STANFORD/YALE JUNIOR * Request For Submissions
FACULTY FORUM

S S R N I N F O R M A T I O N
_________________________________________________________________

           * Partners in Publishing
           * Administrative Information
              - Missing issues & change of address
              - Solicitation of abstracts
           * Directors
           * Subscription to SSRN Journals
_________________________________________________________________

ACQUIRING PAPERS
Download papers directly from the included web address or contact
the author or other contact person directly. Provide an address
to which the author or other contact person can send a paper
copy and mention that you saw the abstract in SSRN. Some of
SSRN's Partners in Publishing require a subscription or charge a
fee for electronic downloads.

EDITORIAL POLICIES
To provide the broadest coverage of research in Employee
Benefits, Compensation and Pension Law we do not referee working
papers. We accept abstracts of working papers in Employee
Benefits, Compensation and Pension Law whose topics suit the
coverage of the journal and which are part of the worldwide
scholarly discourse.

N E W and F O R T H C O M I N G Articles
_________________________________________________________________

"Pegram v. Herdrich: On Peritonitis, Preemption, and the Elusive
Goal of Managed Care Accountability"
Journal of Health Politics, Policy and Law, Vol. 26, No. 4,
August 2001

BY: PETER J. HAMMER
University of Michigan Law School

Paper ID: U of Michigan Law, Public Law Working Paper No. 9

Contact: PETER J. HAMMER
    Email: Mailto:hammerp@umich.edu
   Postal: University of Michigan Law School
            625 South State Street
            Ann Arbor, MI 48109-1215 USA
    Phone: 734-763-4586
      Fax: 734-764-8309

ABSTRACT:
Manages care presents the paradox of organizations having real
power over people's lives without there being clear or
consistent means of ensuring accountability. In Pegram v.
Herdrich, the United States Supreme Court struggled with whether
"fiduciary duties" under the federal Employee Retirement Income
Security Act (ERISA) could be used to counterbalance the
incentives that HMOs may have to deny necessary care. Given
press coverage of the case, however, it was easy to get the
impression that the managed care industry itself was on trial in
Pegram. This report examines the political and legal forces
underlying the dispute and analyzes the Supreme Court's
unanimous rejection of the notion of federally imposed duties
for HMOs. In the absence of ERISA fiduciary obligations,
attention must now shift to developments in state tort law, the
scope of federal ERISA preemption, and the prospect of
legislative reform. The report concludes with an exploration of
how the elusive goal of managed care accountability might be
pursued in the wake of Pegram.

______________________________

"Defined Contribution Health Benefits"
EBRI Issue Brief, No. 231, March 2001

BY: PAUL FRONSTIN
Employee Benefit Research Institute (EBRI)

Document: Available from the SSRN Electronic Paper Collection:
http://papers.ssrn.com/paper.taf?abstract_id=267290

Contact: PAUL FRONSTIN
    Email: Mailto:fronstin@ebri.org
   Postal: Employee Benefit Research Institute (EBRI)
            Suite 600
            2121 K Street, NW
            Washington, DC 20037-1896 USA
    Phone: 202-775-6352
      Fax: 202-775-6312

Paper Requests:
Contact Alicia Willis at Mailto:publications@ebri.org, or 2121 K
St., NW, Suite 600, Washington, DC 20037-1896.
Phone:(202)775-9132, Fax:(202)775-6312. Full-Text downloads are
available from SSRN Online for $7.50.

ABSTRACT:
This Issue Brief discusses the emerging issue of "defined
contribution" (DC) health benefits. The term "defined
contribution" is used to describe a wide variety of approaches
to the provision of health benefits, all of which have in common
a shift in the responsibility for payment and selection of
health care services from employers to employees. DC health
benefits often are mentioned in the context of enabling
employers to control their outlays for health benefits by
avoiding increases in health care costs. DC health benefits may
also shift responsibility for choosing a health plan and the
associated risks of choosing a plan from employers to
employees.

There are three primary reasons why some employers currently
are considering some sort of DC approach. First, they are once
again looking for ways to keep their health care cost increases
in line with overall inflation. Second, some employers are
concerned that the public "backlash" against managed care will
result in new legislation, regulations, and litigation that will
further increase their health care costs if they do not distance
themselves from health care decisions. Third, employers have
modified not only most employee benefit plans, but labor market
practices in general, by giving workers more choice, control,
and flexibility.

The Issue Brief also includes a discussion of various issues
related to both the current system and a DC health benefit
system, such as adverse selection, choice of plans, portability,
health care costs, employers' advocacy role, delivery innovation
and quality, tax treatment of health benefits, future public
policy, and employees' access to information. These issues must
be addressed in order for a transition to DC health benefits to
occur. The most salient of these issues most likely will be
adverse selection, since, absent a government mandate on
individuals to purchase health insurance, it will be difficult
to build an infrastructure that does not encourage healthy
individuals to go without health insurance or to choose less
extensive plans.

Keywords: Defined contribution plans, Employment-based
benefits, Health care attitudes and opinions, Health care costs,
Health insurance coverage, Health insurance surveys

JEL Classification: J32
______________________________

"Defined Contribution Health Benefits: The Next Evolution?"
EBRI Notes, Vol. 22, No. 8, August 2001

BY: STEVE BLAKELY
Employee Benefit Research Institute (EBRI)

Document: Available from the SSRN Electronic Paper Collection:
http://papers.ssrn.com/paper.taf?abstract_id=282591

Contact: STEVE BLAKELY
    Email: Mailto:blakely@ebri.org
   Postal: Employee Benefit Research Institute (EBRI)
            Suite 600
            2121 K Street, NW
            Washington, DC 20037-1896 USA
    Phone: 202-775-6341
      Fax: 202-775-6312

ABSTRACT:
"Defined contribution" (DC) health benefits are an emerging
   alternative that employers are starting to examine for
   controlling the resurgence of health care cost inflation. While
   there is no agreed-upon definition of what exactly constitutes
   DC health benefits, under this strategy, employers would make a
   fixed, periodic contribution to a worker's health care account,
   and the worker would assume full responsibility for
   self-insuring the care he or she needs by acquiring commercial
   insurance individually or through other groups. This article
   summarizes discussion and presentations at EBRI's May 3, 2001,
   policy forum on defined contribution health benefits, at which
   policymakers, leading thinkers on benefits, employers, and labor
   representatives examined some of the implications of DC health
   plans. They discussed whether DC health benefits would be able
   to produce long-term health care cost control, which managed
   care has not succeeded in doing; whether they would offer
   workers more choice over how their health care money is spent
   and more flexibility in choosing their providers; and how policy
   issues, such as adverse selection, equity, and regulation, would
   be addressed.

Keywords: Employment-based benefits, Health care costs, Health
care policy, Health insurance

JEL Classification: J32
______________________________

"Employee Benefits Considerations in Joint Ventures"
Tax Lawyer, Vol. 54, No. 3, Spring 2001

BY: SUSAN P. SEROTA
Pillsbury Winthrop LLP

Contact: SUSAN P. SEROTA
    Email: Mailto:sserota@pillsburywinthrop.com
   Postal: Pillsbury Winthrop LLP
            One Battery Park Plaza
            New York, NY 10004-1490 USA
    Phone: 212-858-1125
      Fax: 212-858-1500

ABSTRACT:
In structuring corporate transactions, companies are
increasingly utilizing joint ventures as a form of operating a
business. It is necessary to understand the implications of
joint ventures on employee compensation and benefit issues. This
Article discusses the tax consequences to both the employer and
employee which may differ if the entity is taxed as a
partnership or a corporation. Also discussed are qualified plan
considerations, plans sponsor liabilities under Title IV of
ERISA, multiple employer plans, nondiscrimination requirements,
the use of pre-participation and imputed service and
compensation credits under qualified plans, and the issues
relating to participation by joint venture employees in ESOPs
and other individual account plans with investment in securities
of one of the partners. The Article also discusses incentive
compensation and executive compensation issues in joint
ventures, including the availability of ISOs and nonqualified
options and recent issues arising under the final section 1032
regulations, and welfare plans in joint ventures, including
issues relating to MEWAs.

______________________________

"Phased Retirement: Leaving the Labor Force"
EBRI Notes, Vol. 22, No. 9, September 2001

BY: DAVID RAJNES
Employee Benefit Research Institute (EBRI)

Document: Available from the SSRN Electronic Paper Collection:
http://papers.ssrn.com/paper.taf?abstract_id=288460

Contact: DAVID RAJNES
    Email: Mailto:rajnes@ebri.org
   Postal: Employee Benefit Research Institute (EBRI)
            Suite 600
            2121 K Street, NW
            Washington, DC 20037-1896 USA
    Phone: 202-775-6329
      Fax: 202-775-6312

ABSTRACT:
The more traditional view of retirement as a one-time event has
been superseded in recent years by the idea that, for many
workers, leaving the work force may involve a less abrupt
transition to full-time retirement. This article examines the
process of exiting the labor force referred to in the media and
academic literature as phased retirement. It explores the topic
through an examination of trends in labor force participation
and retirement and presents research highlights drawn from
recent surveys on the subject. Reasons why employees and
employers become involved in either formal or informal
arrangements are a focus of the discussion and serve to explain
the relative scarcity of formal programs in the private sector.
Also mentioned are recommended implementation strategies for
employers considering a formal phased option program.