The Christian Science Monitor on Thursday examined how the Employee Retirement Income Security Act -- a federal law enacted in 1974 that exempts employer-sponsored pension plans, as well as health insurance and other benefits provided by employers, from state regulation -- could "invalidate many of the budding efforts by states and cities to expand access to health care."

Courts in recent months have used ERISA to strike down laws in Maryland and Suffolk County, N.Y., that would have required employers to offer health insurance to employees or pay into a government fund to subsidize coverage. A court in the next few weeks will consider the validity of a similar law in San Francisco. A similar law recently enacted in Massachusetts and a proposal under consideration in California "have been crafted with an eye to previous ERISA rulings, and other states are watching to see if the innovations will hit upon a legally acceptable formula -- or hit another brick wall in court," according to the Monitor.

Joel Miller of the National Coalition on Health Care, said, "Many states are watching ... to see how this is panning out," adding, "What a lot of ... people who follow this hope for is that the states will try to thread this needle."

Richard Cauchi, a health program director for the National Conference of State Legislatures, said, "Massachusetts gave hope in the sense of not just ERISA, but the ability to have bipartisan consensus," adding, "The insurers, employers and the providers all were saying positive things." Miller said, "Even in Massachusetts, the ERISA preemption still hangs over the head of the policymakers trying to hammer out details of the plan." The California proposal also could face a lawsuit related to ERISA.

Possibility for Reform?
According to the Monitor, in the event that the "California plans ultimately are rejected by the courts, pressure could build on Congress to clarify the law or issue waivers to states trying to expand health coverage, but experts "say any changes to ERISA are unlikely." Miller said, "I've been looking at this issue for the last 32 years, and any attempts have been thwarted by employers and other stakeholders." He added that legislation to expand health insurance "has to happen at the federal level" to avoid violations of ERISA (Arnoldy, Christian Science Monitor, 9/27).

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