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ERISA Reform as Health Reform

The Case for an ERISA Preemption Waiver

Published online by Cambridge University Press:  01 January 2021

Elizabeth Y. McCuskey
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Abstract

If federal health reforms continue to rely on employer-sponsored health care coverage, ERISA preemption reform should be part of the next steps. State-level reform has acquired greater urgency, while the justifications for preempting that source of reform has eroded. This article recommends a statutory waiver for ERISA preemption as a feasible way to adapt to these circumstances. It offers proposed statutory text for reformers inclined to pursue ERISA reform as health reform.

Type
Symposium Articles
Information
Journal of Law, Medicine & Ethics , Volume 48 , Issue 3: A Bold Agenda for the Next Steps in Health Reform , Fall 2020 , pp. 450 - 461
Copyright
Copyright © American Society of Law, Medicine and Ethics 2020

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References

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E.g., 29 U.S.C. §§ 1144a (“clarification of church welfare plan status under State insurance law”); 1150 (“applicability of State law to combat fraud and abuse”); 1191(a)(1) (“this part shall not be construed to supersede any provision of State law which establishes, implements, or continues in effect any standard or requirement solely relating to health insurance issuers in connection with group health insurance coverage except to the extent that such standard or requirement prevents the application of a requirement of this part”); 1191(b)(1) (preempting conflicting state laws on preexisting condition exclusions in fully-insured plans); 1191(b)(2) (preserving state laws on fully-insured plans’ that expand ERISA's preexisting condition protections, deadlines, or special enrollment periods).Google Scholar
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Several other statutes have authorized the waiver of their preemptions. E.g., 49 U.S.C. § 5125(e) (providing mechanism for states to apply to Secretary of Transportation for a “waiver of preemption” under federal highways act); 42 U.S.C. § 6297(d) (providing mechanism for states to petition Secretary of Energy for waiver of preemption under federal Energy Policy and Conservation Act); 42 U.S.C. § 7543 (providing mechanism for EPA Administrator to waive Clean Air Act preemption for state laws that are “at least as protective of public health” as the federal requirements). Cf. 21 U.S.C. § 360k (authorizing the FDA to determine the scope of the Medical Devices Amendments’ pre-emption clause).Google Scholar
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See id. Congress did, however, create “substantive exceptions” to preemption for certain multistate employer plans, domestic relations and child support orders, and exhaustion requirements. See Befort and Kopka, supra note 11, at 33-34.Google Scholar
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