Academic journal article Defense Counsel Journal

State Alternate Provider Statute Escapes Preemption

Academic journal article Defense Counsel Journal

State Alternate Provider Statute Escapes Preemption

Article excerpt

Who needs Congress to repeal ERISA's federal preemption provision when the courts can do it quicker.

The federal Employee Retirement Income Security Act does not preempt Washington state's so-called alternate provider statute, which requires health maintenance organizations and health care service contractors to cover acupuncture, massage therapy, naturopathy, chiropractic services and a variety of other alternative medical treatments, the Ninth Circuit held in Washington Physicians Service Association v. Gregoire, 147 F.3d 1039 (1998).

The court noted that since 1985 when the U.S. Supreme Court upheld a Massachusetts requirement that insurers offer some limited form of mental health coverage in Metropolitan Life Insurance Co. v. Massachusetts, 461 U.S. 724, the trend of states requiring certain coverages has continued and has been controversial in view of ERISA's preemption (29 U.S.C. 1144(a)), which provides that ERISA "shall supersede any and all state laws insofar as they may now or hereafter relate to any employee benefit plan." But that provision has an exception (29 U.S.C. 1144(b)(2)(A)) stating that it shall not be construed to exempt or relieve any person from "any law of any state which regulates insurance, banking, or securities. …

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