A few months ago I discussed how the U.S. District Court for the District of Maryland dealt with the Maryland Fair Share Act here. Earlier this week the U.S. Court of Appeals for the Fourth Circuit affirmed the trial court decision. You can read the decision here. There are a couple of good discussions on the web of the ins and outs of the decision from others. You can read Roy Harmon’s take here and the comments of Jo-el Meyers, BNA’s pension and healthcare benefits reporter, here. ERISA preemption is complex for many reasons. One of the big problems is the difficulty in drawing lines about inherently amorphous questions. When do state laws “relate to” employee benefit plans? How about whether a state law has a “connection with” those plans? If you have that figured out, how about whether the state law in question “directly” or “indirectly” effects an ERISA employee benefit plan? The former is verboten and the latter is okey-dokey for ERISA preemption purposes. Bottom line in this case is that the Fourth Circuit ruled, 2-1, that the Maryland statute infringed too directly on a primary goal of ERISA to provide uniform national regulations for employee benefit plans to withstand ERISA preemption. One of the things that created tough sledding for the preemption opponents, the backers of the Fair Share Act, was the undisguised purpose of the Maryland state legislature to target Wal-Mart’s relatively low levels of health insurance coverage. Those lawmakers' perceptions that Wal-Mart’s intent, or at least effect, in putting in place relatively skimpy health benefits for its employees and their dependents was to shift costs to state taxpayers who funded Medicaid was very clearly behind the Fair Share Act.
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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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