The Supreme Court handed down its decision in Gobeille v. Liberty Mutual
on March 1, holding that ERISA pre-empts Vermont's all-payor claims
database statute to the extent that it relates to self-insured plans. In
other words, self-insured health plans (provided by large employers to
93 million covered individuals nationwide as an alternative to insurance
... though they are generally administered by health insurance
companies) are not required to participate in state-level health data
collection efforts, even though "APCD data about health care use and
cost can contribute to effective policy decisions." (RWJF Primer on APCD Basics.)
About twenty states have APCDs in place and about another dozen or so
have them in the works -- but they can no longer collect information on
close to 1/3 of Americans.
As any health policy wonk will tell
you, APCDs are valuable instruments of change, because they allow a view
behind the curtain that is generally available only with respect to Medicare beneficiaries.
While that data is useful it is obviously not as representative of the
broader population as data regarding tens of millions of working adults
and their dependents. Vermont's law (like other APCD laws)
is
designed to help identify health care needs and inform health care
policy, evaluate the effectiveness of intervention programs on improving
patient outcomes, compare costs between various treatment settings and
approaches, determine the capacity and distribution of existing
resources, and provide information to purchasers of healthcare.
(Interestingly,
one must read the dissenting opinion to find this excerpt from the
Vermont statute; the majority opinion is a mechanistic exercise in ERISA
pre-emption without delving too deeply into that which is being
pre-empted. It seems to overstep one of the precepts of ERISA
pre-emption jurisprudence: "avoiding the clause's susceptibility to
limitless application.")
The essence of Liberty Mutual's argument
in support of pre-emption is that it is just too darn hard to deal with
multiple state regulatory schemes and file information that is similar,
but not exactly the same, above and beyond the filings that self-insured
plans must submit to the U.S. Department of Labor. Interesting claim
... particularly in light of the fact that these filings are being made
by plan administrators on behalf of self-insured plans, mostly on an
automated basis, in about twenty states, and Liberty Mutual had to
instruct BCBS of MA (its TPA) to stop making filings on its behalf while
it continued to so do on behalf of other clients.
I won't repeat
the full reasoning of the majority opinion here -- it's technical ERISA
pre-emption-speak at its finest -- but please feel free to read pages
5-13 of the majority opinion, linked to above. ERISA pre-empts any state
law that "relates to" employee benefit plans; even after going through
various analyses intended to avoid the "limitless application" problem
the majority found as it did.
Justice Breyer's concurring opinion
noted that Treasury, Labor and HHS said they were considering rulemaking
under the ACA that would require health plans to make more detailed
filings about various aspects of plan administration. He suggests that
Labor could promulgate reporting requirements by regulation, and call
for information that states want, and delegate information collection
duties to the states.
Those are a lot of steps, and a lot could go wrong -- or these steps might never be taken at all.
The
dissenters take what sounds to me to be a more rational view of the
case: ERISA reporting by plans to the Department of Labor "relates to"
the plans themselves, their solvency, their ability to deliver benefits
to their members when needed. Reporting to APCDs relates to cost and
quality of health care services, which is something else entirely.
(Frankly, since Liberty Mutual's issue is not that its ERISA
sensibilities were offended, but that it does not want to engage in
additional reporting, it is entirely possible that if the regulations
described in Breyer's opinion were promulgated, another challenge could
be brought regarding the authority of the agencies to develop such rules
-- since, as observed in the dissent and noted above, TPAs seem to have
figured out how to do the requisite reporting into APCDs pretty
easily.)
It's the tragedy of the commons. The Court, the states,
the federal agencies will all wait for someone to step up and lead ...
and it is quite possible that nobody will. It is also likely that
self-insured plans will not participate voluntarily in APCD data
collection going forward. Each will save some money by not going through
the exercise of reporting, but all plans (ERISA plans and others) and
all states (acting as Medicaid funders, and as employers providing
insurance to their employees and dependents, and as fifty laboratories
trying to get health reform right), and all of us, ending up unable to
leverage the tremendous amount of data that should be available to us
all to improve health care delivery and payment systems in this country.
The
APCDs are being used for good -- a key tool in state efforts to control
cost and quality of health care services. If they become a shell of
their former selves, as they must following this decision, who loses? We
all do.
David Harlow
The Harlow Group LLC
Health Care Law and Consulting
Read my award-winning blog, HealthBlawg, where this post first appeared.
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Filed Under: Health care policy, Health Insurance, Health Law, Health Reform