There's "private" and then there's "private": ERISA, its impact, and options for reform

Document Type

Journal Article

Publication Date

Winter 2008


Journal of Law, Medicine and Ethics


Volume 36, Issue 4

Inclusive Pages



Employee Retirement Income Security Act--economics; Employee Retirement Income Security Act--trends; Health Care Reform--economics; ERISA; Health Reform


The Employee Retirement Income Security Act of 1974 (ERISA), a federal law regulating private employer-sponsored employee benefit plans, was primarily designed for pension plans, but has had a profound impact on state health care reform efforts. ERISA's broad preemption language has been judicially interpreted to preclude states from most forms of regulation of employer health plans, including benefit design (except through regulation of insurance products) and incorporating employer expenditure requirements in state health reform financing. But since 1974, Congress has never seriously returned to reexamine several fundamental questions: Should employers be required to offer or contribute to employee health coverage? Should ERISA preempt state efforts to take such actions? Or should ERISA incorporate more comprehensive regulation of health plans in these areas? Although the politics of ERISA preemption have thus far blocked federal reform, while allowing state reform activity to be simultaneously curtailed, new health reform efforts may force Congress to address these questions.

Peer Reviewed