Friday, January 10, 2003

Supreme Court

The second case for Tues 1/14 is KY Ass'n of Health Plans v. Miller. It is about ERISA preemption, a topic that is simultaneously frustrating, complex, tiresome, and important.

ERISA is the federal law about benefit plans: retirement plans (the colloquial but somewhat underinclusive term is "pensions"), and health & welfare plans (the colloquial, partial, but technically not-quite-right term for the most common type would be something like "employer-provided health coverage"). One thing about the federal law, ERISA, is that it "preempts" some state laws -- i.e., it makes them disappear, forbids their enforcement, keeps the states from messing with lovely national uniformity. The Supreme Court has decided about a zillion cases over the last 25 years or so about ERISA preemption, and it always (quite understandably) grouses about how utterly impenetrable and unhelpful the statute's language on this subject is.

Ok. So. Kentucky enacted some laws about health plans, HMOs, and the like, that are known as "any willing provider" laws: under these laws the health plans, HMOs, etc., can't provide coverage or payment only for the services of select physicians, chiropractors, etc., but have to cover the services of any provider who's willing to abide by the terms and conditions that the plan/HMO/whatever is offering. And the question is whether ERISA preempts these laws. The Sixth Circuit said, no it doesn't -- that Kentucky is free to have, and to enforce, these laws (at least if it doesn't try to enforce them against self-insured health plans, which have a sort of super-protected status under ERISA).

What are our clues as to how this will turn out? Number one, the government as amicus argues that there's no preemption here, and that ought to be pretty persuasive. (If you're into these things, and want to know about all the intricacies of ERISA preemption -- the "relates to" clause, the "savings" clause, and the "deemer" clause -- then click the link to the government's brief). Number two, the last time the Court tackled a difficult ERISA preemption issue, in last year's Prudential Rush HMO v. Moran, it said "no preemption". Number three, though, that was a 5-4 decision, so there's no consensus within the Court as to how you decide these issues. Number four -- and here's something pretty odd about the case -- this case has been lingering on the Court's docket for two years now, and they probably had originally intended just to hold onto it long enough to see what they would decide in Moran and then remand this case for further consideration in light of Moran if necessary. But they didn't, which suggests, to my eye, that there are some Justices who might want to make a big deal of how different this case is from Moran and how the argument for preemption is stronger here. Will one of the slim Moran-majority jump ship and vote in favor of preemption here? Could be. But ultimately I'm guessing that this case, like Moran, will come out with a decision of no-preemption, and the Court will therefore AFFIRM.

posted by sam 7:18 AM 0 comments

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