Hand arranging wood block pyramid with health icons on each block.

ERISA Preemption Reform: Unlocking States’ Capacity for Incremental Reform

By Elizabeth McCuskey

For the past 46 years, the Employee Retirement Income Security Act (ERISA) has preempted state regulation that “relates to” employer-sponsored health benefits. 

Much has changed in health care and society over that time; but ERISA’s preemption abides — widely maligned, yet unaltered. An ERISA preemption waiver thus presents a long-overdue update to health care regulation with a lot to recommend it to the Biden Administration’s health care agenda: it enables states to “strengthen and build on the Affordable Care Act,” it offers a modest incremental step that could pave the way for bigger structural change, it prompts no federal spending, and it has bipartisan political support. 

The preemption provision in 1974 was supposed to entice multistate employers to offer benefits by creating some federal uniformity in benefit regulation. For health benefits, however, that uniformity has been largely deregulatory.

ERISA preemption currently prevents states from fully enforcing a wide variety of health reforms, ranging from claims data collection to state-level employer mandates. And it casts a pall of private litigation challenges over even the ones that should be enforceable, like surprise billing regulation, prescription drug pricing measures, and state and local public option plans.  

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shopping trolley with medicine

Concerns Raised by ‘Georgia Access’ 1332 Waiver Application

By Matthew B. Lawrence and Haley Gintis

Georgia has applied to the U.S. Department of Health and Human Services (HHS) for a waiver under the Affordable Care Act that would allow it to reshape its private health insurance marketplace.

HHS is accepting comments on the application through September 23, 2020. Commenters so far have raised various issues, including concerns about how the waiver would, if granted, impact access to treatment for mental illness and behavioral health conditions such as substance use disorder.

This blog post summarizes the revised waiver in Part I, changes from the original in Part II, and recent comments about its desirability in Part III.

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Illustration of a family and large clipboard with items in a list checked off. All are underneath a large blue umbrella

Third Time’s a Charm: Georgia’s 1332 Waiver Application

By Abe Sutton

The Georgia Access Model

Georgia's waiver presents a pathway for other states
Other states can follow Georgia’s lead in pursuing innovative 1332 waivers to encourage choice and competition. “A Pathway to Heaven” by ^riza^ is licensed under CC BY 2.0.

In December 2019, Georgia applied for a state relief and empowerment waiver available under Section 1332 of the Affordable Care Act (ACA).

Section 1332 lets states alter select ACA requirements to find the approach that is right for their state and encourage insurance coverage innovation. Georgia has released two prior versions of this waiver proposal; the state’s most recent revision to its 1332 waiver application offers a new vision for the individual market and a potential roadmap for other states. The innovation, the Georgia Access Model, accompanies the now-traditional reinsurance component included in prior 1332 waivers.

The Georgia Access Model shifts Georgia off of healthcare.gov. It instead opts for a decentralized enrollment system that makes plans available through the commercial market. Georgia argues this will increase individual market enrollment and reduce premiums. In this piece, I address some criticisms of the model and present an argument for approving Georgia’s waiver.

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