29 U.S.C. § 1144(a). Courts have held that ERISA's civil remedies provision, 29 U.S.C. § 1132(a), completely preempts parallel state-law remedies. E.g., Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987). This article concerns only § 1144's regulatory preemption, not § 1132's claim preemption.Google Scholar

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See, e.g., UNUM Life Ins. Co. of Am. v. Ward, 526 U.S. 358, 363 (1999) (The statute's “meaning is not ‘plain’; sensible construction of ERISA, our decisions indicate, requires that we measure these words in context.”); De Buono v. NYSA— ILA Medical and Clinical Services Fund, 520 U. S. 806, 809 (1997) (lamenting that the statute is “opaque”); Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 47 (1987) (noting that “the wide variety of state statutory and decisional law arguably affected” by ERISA's broad language prompts repeated calls for interpretation); Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 739 (1985) (calling the statute “not a model of legislative drafting”). See also Acker, W. M., “Can the Courts Rescue ERISA?” Cumberland Law Review 29, no. 2 (1999): 285–300, 285 (concluding that they cannot because ERISA preemption is “beyond redemption”).Google Scholar

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See Bogan, D., “Protecting Patient Rights Despite ERISA: Will the Supreme Court Allow States to Regulate Managed Care?” Protecting Patient Rights Despite ERISA: Will the Supreme Court Allow States to Regulate Managed Care? 74, no. 3 (2000): 951–1026, 972-77.Google Scholar

29 U.S.C. § 1144(a) (emphasis supplied). See Bogan, supra note 8, at 978-79.Google Scholar

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See Befort, S.F. and Kopka, C.J., “The Sounds of Silence: The Libertarian Ethos of ERISA Preemption,” The Sounds of Silence: The Libertarian Ethos of ERISA Preemption, 51, no. 1 (2000): 1–40, 39.Google Scholar

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See J.S. King, “COVID-19 and the Need for Health Care Reform,” New England Journal of Medicine (April 17, 2020), available at <https://www.nejm.org/doi/full/10.1056/NEJMp2000821> (last visited July 20, 2020).+(last+visited+July+20,+2020).>Google Scholar

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See id. at 1268.Google Scholar

29 U.S.C. § 1002(1).Google Scholar

See Wooten, J.A., “A Legislative and Political History of ERISA, Part 2,” A Legislative and Political History of ERISA, Part 2, 14, no. 3 (2007): 5–10.Google Scholar

See G. Klaxon, et al., Kaiser Family Foundation, 2018 Employer Health Benefits Survey, Section 10: Plan Funding, at 167. The precipitous unemployment during the COVID-19 pandemic likely will push this percentage downward in 2020.Google Scholar

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This is true even if self-funded plans rely on third-party administrators to handle claims and stop-loss insurance to manage risk.Google Scholar

See Befort and Kopka, supra note 11, at 37 (“[T]he heart of ERISA's libertarian ethos [is] to create a vacuum, largely uniform in its lack of either federal or state regulation, within which a multiplicity of welfare benefits could evolve.”).Google Scholar

See, e.g., Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355, 402(2002) (Thomas, J., dissenting) (“[T]he Court would do well to remember that no employer is required to provide any health benefit plan under ERISA.”).Google Scholar

E.g., U.S. Dep't of Labor, Health Plans & Benefits: ERISA, available at <https://www.dol.gov/general/topic/healthplans/erisa> (last visited July 20, 2020) (“ERISA requires plans to provide participants with plan information including important information about plan features and funding; provides fiduciary responsibilities for those who manage and control plan assets; requires plans to establish a grievance and appeals process for participants to get benefits from their plans; and gives participants the right to sue for benefits and breaches of fiduciary duty.”). (last visited July 20, 2020) (“ERISA requires plans to provide participants with plan information including important information about plan features and funding; provides fiduciary responsibilities for those who manage and control plan assets; requires plans to establish a grievance and appeals process for participants to get benefits from their plans; and gives participants the right to sue for benefits and breaches of fiduciary duty.”).' href=https://scholar.google.com/scholar?q=E.g.,+U.S.+Dep't+of+Labor,+Health+Plans+&+Benefits:+ERISA,+available+at++(last+visited+July+20,+2020)+(“ERISA+requires+plans+to+provide+participants+with+plan+information+including+important+information+about+plan+features+and+funding;+provides+fiduciary+responsibilities+for+those+who+manage+and+control+plan+assets;+requires+plans+to+establish+a+grievance+and+appeals+process+for+participants+to+get+benefits+from+their+plans;+and+gives+participants+the+right+to+sue+for+benefits+and+breaches+of+fiduciary+duty.”).>Google Scholar

E.g., 29 U.S.C §§ 1181 (COBRA preexisting conditions), 1182 (medical underwriting & health status discrimination), 1183 (guaranteed renewability), 1185 (maternity, newborns), 1185a (mental health parity), 1185b (mastectomy reconstruction), 1185c (students on medically necessary leave), 1185d, 1191 (preemption and state flexibility), 1191a (special rules), 1191b (definitions), 1191c (regulations).Google Scholar

See, e.g., 29 U.S.C.A. § 1185b(e)(1)(2) (“Nothing in this section shall be construed to affect or modify the provisions of section 1144 of this title with respect to group health plans.”).Google Scholar

See CCIO, Mental Health Parity and Addiction Equity Act, available at <https://www.cms.gov/cciio/programs-and-initiatives/other-insurance-protections/mhpaea_factsheet.html> (last visited July 20, 2020).+(last+visited+July+20,+2020).>Google Scholar

29 U.S.C. § 1185b (1998). See also, e.g., U.S. Dep't of Labor, Fact Sheet: Newborns’ and Mothers’ Health Protection Act, available at <https://www.dol.gov/sites/dolgov/files/ebsa/about-ebsa/our-activities/resource-center/fact-sheets/newborns-act.pdf> (last visited July 20, 2020). (last visited July 20, 2020).' href=https://scholar.google.com/scholar?q=29+U.S.C.+§+1185b+(1998).+See+also,+e.g.,+U.S.+Dep't+of+Labor,+Fact+Sheet:+Newborns’+and+Mothers’+Health+Protection+Act,+available+at++(last+visited+July+20,+2020).>Google Scholar

See American Cancer Society, Women's Health and Cancer Rights Act, May 2019, available at <https://www.cancer.org/treatment/finding-and-paying-for-treatment/understandinghealth-insurance/health-insurance-laws/womens-healthand-cancer-rights-act.html> (last visited July 20, 2020) (“Several states have their own laws requiring health plans that cover mastectomies to provide coverage for reconstructive surgery after a mastectomy. These state laws only apply to those health plans purchased by an employer from a commercial insurance company. If an employer is self-insured, state laws do not apply but federal laws do. … [I]t can be hard to tell whether you are in a self-insured or a commercially insured plan unless you ask.”). (last visited July 20, 2020) (“Several states have their own laws requiring health plans that cover mastectomies to provide coverage for reconstructive surgery after a mastectomy. These state laws only apply to those health plans purchased by an employer from a commercial insurance company. If an employer is self-insured, state laws do not apply but federal laws do. … [I]t can be hard to tell whether you are in a self-insured or a commercially insured plan unless you ask.”).' href=https://scholar.google.com/scholar?q=See+American+Cancer+Society,+Women's+Health+and+Cancer+Rights+Act,+May+2019,+available+at++(last+visited+July+20,+2020)+(“Several+states+have+their+own+laws+requiring+health+plans+that+cover+mastectomies+to+provide+coverage+for+reconstructive+surgery+after+a+mastectomy.+These+state+laws+only+apply+to+those+health+plans+purchased+by+an+employer+from+a+commercial+insurance+company.+If+an+employer+is+self-insured,+state+laws+do+not+apply+but+federal+laws+do.+…+[I]t+can+be+hard+to+tell+whether+you+are+in+a+self-insured+or+a+commercially+insured+plan+unless+you+ask.”).>Google Scholar

Compare Retail Industry Leaders Association v. Fielder, 475 F.3d 180, 198 (4th Cir. 2007) with Golden Gate Restaurant Ass’n v. City and County of San Francisco, 546 F.3d 639, 660 (9th Cir. 2008). See Fuse Brown and McCuskey, supra note 3, at 424-428.Google Scholar

Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355, 402(2002) (J. Thomas, dissenting) (“[T]he Court would do well to remember that no employer is required to provide any health benefit plan under ERISA … [The state law] independent review provisions could create a disincentive to the formation of employee health benefit plans, a problem that Congress addressed by making ERISA's remedial scheme exclusive and uniform.”).Google Scholar

Fuse Brown and McCuskey, supra note 3, at 447.Google Scholar

Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 724, 747(1985).Google Scholar

See, e.g., Borzi, supra note 3, at 663; Bogan, supra note 8, at 952-53, 964-65. Cf. Befort and Kopka, supra note 11.Google Scholar

Fuse Brown and McCuskey, supra note 3 at 447.Google Scholar

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E.g., CMS Guidance, 31 CFR 33 (Oct. 24, 2018) (recasting the ACA's 1332 “Waiver for State Innovation” as the “State Relief and Empowerment Waiver”).Google Scholar

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See M. Sanger-Katz, J. Creswell, and R. Abelson, “Mystery Solved: Private-Equity-Backed Firms are Behind Ad Blitz on ‘Surprise Billing’,” New York Times (September 16, 2019), available at <https://www.nytimes.com/2019/09/13/upshot/surprise-billing-laws-ad-spending-doctor-patient-unity.html?searchResultPosition=3>..>Google Scholar

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Altman, supra note 12.Google Scholar

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E.g., Jensen, M., “Is ERISA Preemption Superfluous in the New Age of Health Care Reform?” Is ERISA Preemption Superfluous in the New Age of Health Care Reform? 2011, no. 2 (2011): 464–530, 530; C.L. Young, “Pay or Play Programs and ERISA Section 514: Proposals for Amending the Statutory Scheme,” Yale Journal of Health Policy, Law, & Ethics 10, no. 1 (2010): 197-237; M. A. Chirba-Martin, “Drawing Lines in Shifting Sands: The U.S. Supreme Court's Mixed Messages on ERISA Preemption Imperil Health Care Reform,” Journal of Legislation 36, no. 1 (2010): 91-138, 94; A.B. Monahan, “Federalism, Federal Regulation, or Free Market? An Examination of Mandated Health Benefit Reform,” University of Illinois Law Review 2007, no. 5 (2007): 1361-1416, 1367; D.P. Groves, “ERISA Waivers and State Health Care Reform,” Columbia Journal of Law & Social Problems 28, no. 4 (1995): 609-52, 651-52; S.D. Litman, “Health Care Reform for the Twenty-First Century: The Need for a Federal and State Partnership,” Cornell Journal of Law & Public Policy 7, no. 3 (1998): 871-920, 913-16; M.A. Bobinski, “Unhealthy Federalism: Barriers to Increasing Health Care Access for the Uninsured,” University of California Davis Law Review 24, no. 2 (1990): 255-348, 344-45.Google Scholar

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See, e.g., 29 U.S.C. § 1023(a)(3)(A), (4)(A) (authorizing Secretary of Labor to waive external review requirements for certain plans’ annual reports); 29 U.S.C. §§ 1082(c) - 1084 (authorizing Secretary of Treasury to implement “waiver in case of business hardship” for employer liability for contributions); 29 U.S.C. § 1132(c)(10) (authorizing Secretary of Labor to penalize employers and plans for using participants’ genetic information, and authorizing the Secretary to waive those penalties for “reasonable cause”); 29 U.S.C. § 1132(l)(3) (authorizing Secretary of Labor to waive penalties on fiduciaries in certain circumstances); 29 U.S.C. §§ 1202(b), 1203(a), 1202a(a) (authorizing Secretary of Treasury to waive imposition of ERISA taxes in certain circumstances, with input from Secretary of Labor). But see, e.g., 29 U.S.C. § 1025(a)(2)(A) — Notes — (noting that 1986 amendment took away some of the Secretary's power to waive requirement that multiemployer plan furnish certain information to employers and employee representatives).Google Scholar

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

See, e.g., 29 U.S.C. § 1136(a) (authorizing the Secretary of Labor to “coordinate” with states in the enforcement and administration of the statute); 29 U.S.C. § 1136(c) (permitting the Secretary to delegate to a state his investigative and civil enforcement authority over certain “multiple employer welfare arrangements); 29 U.S.C. § 1144(b)(3) (“Nothing in this [preemption] section shall be construed to prohibit use by the Secretary of services or facilities of a State agency as permitted under section 1136 of this title.”).Google Scholar

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

See, e.g., Huberfeld, N., “Can Work be Required in the Medicaid Program,” Can Work be Required in the Medicaid Program, 378, no. 9 (2018): 788–791; Letter from Senator Wyden to Secretaries Azar and Mnuchin and Administrator Verma (Nov. 16, 2018), available at <https://www.finance.senate.gov/imo/media/doc/111618%201332%20guidance%20letter%20final.pdf> (last visited July 20, 2020).Google Scholar

ERISA was enacted and signed by President Ford on September 2, 1974 (Labor Day). Hawaii passed its Prepaid Health Care Act in June of 1974. See Haw. Rev. Stat. §§ 393-1 – 393-51 (1974), available at <https://labor.hawaii.gov/dcd/files/2013/01/PHC-highlights.pdf> (last visited July 20, 2020).+(last+visited+July+20,+2020).>Google Scholar

Haw. Rev. Stat. §§ 393-3(8), 393-7, 393-11, 393-12. Hawaii employers must pay “at least one-half of the premium” and the employees’ remaining share cannot exceed 1.5% of their wages. Haw. Rev. Stat. § 393-13.Google Scholar

See 29 U.S.C. § 1144(b)(5)(A) (stating that the “relate to” preemption “shall not apply to the Hawaii Prepaid Health Care Act”).Google Scholar

Hawaii's exemption applies only to the original 1974 state law and administrative updates to it. Any substantive amendment and any new health reform law Hawaii enacts after the September 2, 1947 effective date of ERISA is subject to the ERISA preemption provision. 29 U.S.C. § 1144(b)(5)(B). The exemption does not apply to ERISA's taxation, reporting, and fiduciary requirements, which continue to preempt even the 1974 Hawaii law. See 29 U.S.C. §§ 1144(b)(5)(A), (C).Google Scholar

See Groves, supra note 57, at 635-644.Google Scholar

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

E.g., State Care Act of 1992, S. 3180, 102d Cong. (1992) (introduced by Senators Patrick Leahy (VT) and Ron Wyden (OR)); The State-Based Comprehensive Care Act of 1992, H.R. 4218, 102d Cong. (1992) (introduced by Washington Rep. Jim McDermott) [supported]. See Groves, supra note 68, at 640.Google Scholar

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E.g., Health Innovation Partnership Act, S. 2452, 103d Cong., 2d Sess. (1994), reprinted in 140 Cong. Rec. S13, 354-70 (daily ed. Sept. 26, 1994).Google Scholar

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29 U.S.C. § 1191(a)(2) (2012). See Gobeille, 136 S.Ct. at 947 (finding the ACA had no bearing on the interpretation of ERISA preemption).Google Scholar

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See McCuskey, supra note 38, at 1133-37 (articulating the limitations on agency discretion in the ACA 1332 waiver process).Google Scholar

See Barron, D.J. and Rakoff, T.D., “In Defense of Big Waiver,” In Defense of Big Waiver, 113, no. 2 (2013): 265–346, 278.Google Scholar

Those prerequisites could be that the state law has been duly enacted by its legislature, or that the state certifies its law will not reduce the percentage of people insured in the state.Google Scholar

See McCuskey, supra note 38.Google Scholar

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