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Don Levit 11/17/2008 01:47 PM
Brian: I agree with you that this idea of laws directly or indirectly affecting benefit plans has that much bearing on ERISA preemption. The idea that fully insured plans are subject to full state regulation, and self-insured plans are subject to zero state regulation seems to be an arbitrary way of resolving the paradox of the saving and deemer clauses. It seems to me that self-funded plans should be subject to more state regulation, and fully insured plans subject to less state regulation. Nowhere in ERISA is the distinction made between how plans are funded (that I am aware of). Rather the plans are simply referred to as "ERISA plans." Don Levit
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