The Battle over Self-Insured Health Plans, or \u22One Good Loophole Deserves Another\u22

摘要

Enacted in 1974, the federal Employee Retirement Income Security Act (ERISA) has been a major roadblock to advocates of increased regulation of health insurance benefits in the era of \u22managed care.\u22 Originally drafted as a pension law, ERISA, as enacted, applies to all fringe benefits provided by private employers to their employees. The statute shields benefit plans, including health insurance, from state regulation in two ways. First, ERISA\u27s \u22preemption\u22 clause prohibits state laws that \u22relate to\u22 employee benefit plans. Second, although ERISA\u27s \u22savings clause\u22 exempts state laws that \u22regulate insurance\u22 from the statute\u27s preemptive force, this exception is in turn limited by the \u22deemer clause,\u22 which prevents state insurance regulations from reaching employer health care benefits plans (EHBPs) that are self-insured, as opposed to those that purchase insurance coverage from a third party. Put another way, ERISA obstructs state regulation on two levels: The statute partially shields all EHBPs from state regulation, and self-insured EHBPs enjoy an enhanced level of protection.A large chorus of critics has lodged two different types of complaints about ERISA. On one hand, critics contend that managed care arrangements threaten consumer health and that the expansion of these insurance systems requires the government to police health insurers more closely. ERISA preemption impedes possible state regulatory efforts. On the other hand, to the extent that ERISA\u27s savings clause enables state regulation of managed care to avoid preemption, critics complain that ERISA creates an inequitable two-tiered regulatory system, in which employees in \u22insured\u22 plans receive protections of state law denied to employees in \u22self-insured\u22 plans.