First, the Seventh Circuit's rationale was on-point and extremely sound in concluding that HMOs do stand as trustees as envisioned by the ESBP and cannot offer kickback payments to physicians simply to increase shareholder wealth at the expense of patient health and welfare.
If the ESBP does not apply to HMOs then neither does the preemption provision of the retirement Act.
(140) Even if the Court believes that actions by Carle Company did not rise to a level sufficient to impose liability under this theory, the language of the opinion leaves the reader with the distinct impression that fiduciary law has no applicability to an HMO's handling of an ESBP. (141) But the Court states further that, "Mixed eligibility decisions by an HMO acting through its physicians have, however, only a limited resemblance to the usual business of traditional trustees." (142)