Thursday, May 3, 2007
Edward Zelinsky (Cardozo) has posted on SSRN his forthcoming piece in the William & Mary Law Review: The New Massachusetts Health Law: Preemption and Experimentation.
From the abstract:
Major features of the new Massachusetts health law are ERISA-preempted as forbidden regulation of employer-provided health care.
This is a regrettable conclusion but one mandated by the ERISA Section 514 and the controlling case law. ERISA preempts the new law's mandate requiring covered Massachusetts employers to sponsor medical plans for their employees and to make “fair and reasonable” contributions to such plans. ERISA also preempts the new law's requirement that Massachusetts residents maintain “minimum creditable coverage” for health care as that requirement effectively mandates for Massachusetts employers the substantive medical coverage they must offer their employees....
At a minimum, Congress should amend ERISA Section 514 to validate the new Massachusetts health law. More comprehensively, Congress should amend Section 514 to permit all states to experiment with health care reform insofar as such experiments “relate to” employer-provided health care. Ideally, Congress should repeal Section 514 and thus abolish altogether the jurisprudence of ERISA preemption.
A provocative argument from a scholar at the forefront of ERISA preemption law.