Tuesday, November 14, 2006

ERISA Preemption Comes to San Francisco

Medical_bag_2Thanks to both Marcia McCormick (Samford-Cumberland) and contributing editor Jeff Hirsch (Tennessee) for sending this New York Times article my way.  I think they know that I have a thing for ERISA preemption.  Can you blame me?

In any event, the article in question describes a recent ordinance passed in San Francisco:

The group, the Golden Gate Restaurant Association, filed the lawsuit in Federal District Court here. It urges the court to strike down the part of the plan that requires businesses with 20 or more employees to pay for the cost of each worker’s health care. The ordinance is to take effect in July 2007.

The association argues that the program conflicts with the federal Employee Retirement Income Security Act, or Erisa, saying that the act exclusively governs the administration of employee welfare benefit plans.

I agree (but not with the way they spell ERISA).  Here's what I wrote in a previous post (about certain employer mandates in the Massachusetts "Connector" law) back in April:

This is because such a law that requires employers to play or pay is related to an employee benefit plan under Section 514(a) of ERISA in that it will impact how employers will administrate and operate their health plans and will potentially lead to the uniformity interests served by ERISA to be undermined.  Thereafter, the law is not saved under the Savings Clause because the law is not specifically directed against entitles engaged in insurance as that language has been defined by the Supreme Court in Miller.  Consequently, the Massachusetts law will probably not be saved from ERISA preemption.

I know I am sounding like a broken record, but this is not the result I desire, but the one current ERISA law requires.  Like others, I think Section 514 (the preemption provision) should be modified by legislation so states can experiment with different ways of handling the current health care crisis in this country.



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