Myth Busters #17: ERISA, Part I

We are almost up to 1992 in our Myth Busters series. So far we have dealt with:

All of this in just 20 years (1972‒1992). But we aren’t quite done yet. There were a couple of other things that happened in this period that had a profound effect on health care delivery and financing. One was ERISA and the other was the federal HMO Act. We’ll start with ERISA.The Employee Retirement Income Security Act (ERISA) was enacted in 1974, mostly because some recent corporate bankruptcies had left retirees with no income and no recourse. Among other things, it created the Pension Benefit Guaranty Corporation (PBGC), which was modeled after the state guaranty funds for insolvent insurance companies. (Note: Because insurance companies are state regulated, federal bankruptcy laws do not apply to them. The states have developed other methods for dealing with insolvent insurance companies. I would argue these state remedies are far more effective and beneficial to policyholders than anything the federal government has done.)

That part of the law has worked reasonably well, it is ERISA’s application to health coverage that has created far more problems than it ever solved.

One example would be that any plan governed by ERISA is exempt from all state taxes and regulations and all legal challenges to employee benefit plans have to be filed in the federal courts. Congress wanted to ensure that the assets of such plans would not be diminished by legal judgments and state revenue demands. This might be appropriate for pension programs that rely on accumulated reserves to pay benefits decades in the future, but not for health benefits that are funded on a year-to-year basis.

Similarly, although ERISA provides a federal remedy for contract disputes, it confines judgments to the cost of the denied claim plus attorney’s fees. Again, this may be fine for pension programs that merely provide income to a beneficiary, but in health care the failure to pay a claim can mean the worsening of a medical condition or even the death of a patient. There is no remedy for these situations because punitive damages or pain and suffering damages are not allowed.

Some people have looked at these provisions and concluded that Congress must not have really meant to include health benefits in the scope of ERISA, but that isn’t true. The law is very clear in defining an “employee welfare benefits plan” —

(A)ny plan, fund or program… established or maintained by an employer… for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise, medical, surgical, , or hospital care or benefits, or benefits in the event of sickness, accident, disability, death, or unemployment. (29 U.S.C. Sect. 3(1))

What was really going on was that Congress expected that a federal program would shortly take over all health care financing, so it was not as diligent about the implications on health care of this law as it should have been. It is worth noting that the famous RAND Health Insurance Experiment was done about the same time for the same reason. As a recent (2006) research brief from RAND said:

In the early 1970s, financing and the impact of cost sharing took center stage in the national health care debate. At the time, the debate focused on free, universal health care and whether the benefits would justify the costs. To inform this debate, an interdisciplinary team of RAND researchers designed and carried out the HIE, one of the largest and most comprehensive social science experiments ever performed in the United States.

Obviously that did not happen, so we have been stuck with ERISA ever since.

It is doubtful there has ever been a law as widely misunderstood or as frequently litigated as ERISA. Few people at the time — or since — have appreciated the implications. In 1982 Paul Starr wrote a Pulitzer Prize winning book, The Social Transformation of American Medicine, that failed to even mention ERISA in any of it’s 514 pages. The U.S. Supreme Court issued almost annual decisions on ERISA through the 1980s, the most prominent being Union Labor Life v. Pireno (1982), Shaw v. Delta Airlines (1983), Metropolitan v. Massachusetts (1985), and Pilot Life v. Dedeaux (1987).

I won’t go into a detailed analysis of the law or the judicial rulings here, but the effects have been profound. It enormously advantaged employer-sponsored plans over individual coverage, and it virtually created the idea of employers’ self-funding of benefits to escape state regulations. Because many employers were able to escape these regulations, they were no longer concerned about what the states did on issues such as mandated benefits, so the political opposition to these ideas was enfeebled. This set the stage for the states to pile on regulation after regulation.

It also enraged citizens who found they could no longer seek reasonable compensation for damages caused by their health plans. This problem became especially acute when Managed Care began to take over the health benefits market. And this, too, was fomented by federal interference in the benefits market in the form of the Federal HMO Act, which we will get into next time.

But, once again, we have an example of Washington’s policy elite screwing things up and escaping any responsibility for their actions. The damage is done by Washington and the market gets the blame.

Comments (4)

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  1. Brian says:

    The hysteria over the uninsured is definitely a big one.

  2. Buster says:

    In 1982 Paul Starr wrote a Pulitzer Prize winning book, The Social Transformation of American Medicine, that failed to even mention ERISA in any of it’s 514 pages.

    Paul Starr’s book is a classic but I was not aware it failed to mention ERISA.

  3. frank timmins says:

    Greg, as you may remember I have a bit of a different take on ERISA (probably validating the theory of Ox goring) at least in terms of what would have happened in healthcare had there been no ERISA.

    I have never seen much value in the regulatory power of states when it comes to health insurance. The reasons are obvious and I won’t bore anyone by detailing the corruption and inefficiencies associated with “state mandated benefits” and political ineptness of the NAIC in managing the problems of multi-state plans.

    The question I would ask with regard to ERISA is that in spite of its warts and shortcomings, does it not present a potentially more logical regulatory authority for employer insurance plans with employees in multiple states? There is no question that smaller employers (those not large enough to self-fund their benefits) are at a disadvantage in having to comply with the inconvenience and additional costs of state regulations. But is the answer to that problem in forcing all employers to share equally in the misery of these inefficiencies? While the confusion of this dual regulatory authority is obvious, is it as obvious as to who the surviving regulatory authority should be?

    As indicated previously I have a bias in this area resulting from decades of consulting with employers on exactly how to make their plans more cost effective by using federal ERISA law. If you are suggesting that had we not had ERISA there would have arose such a loud revolt from all employers trapped in the state regulatory killing field that our state legislators and commissioners would have been forced to act nice, well perhaps you are right. On the other hand, there is the frog in boiling water theory which has seemed to apply to just about every other public response to healthcare nonsense for the past 40 years. So who knows?

  4. Greg Scandlen says:

    Thanks, Frank. I will be getting into some of these issues in my next post — like the argument about multistate employers. ERISA is not confined to multistate employers and employers manage to deal with varying laws and regulations in every other area, why not health benefits?

    But at core this all points once again to the weird system we have where employers buy your health benefits for you. It really makes no sense.