My View: ERISA commentary

States should take back ability to regulate health care

Ms. Mason
Dr. Cobb

Have you ever had the experience of being excited about a very good deal?  Maybe you had a coupon for a purchase or you’ve negotiated a great price for a new car, only to find out that because of the fine print or some other minor detail you’ve not noticed the deal is not nearly as good as you originally thought. In fact, it might not be much of a deal at all.

That’s the way many of our members feel about a federal law called the Employee Retirement Income Security Act of 1974 or ERISA. Both of us have been successful in the last few years working with member dentists in our states to pass laws to reform dental insurance. And while we celebrated the wins we were able to achieve, dental carriers continue to cite “ERISA preemption” as a way they can ignore these new laws that are meant to protect patients and dentists alike. In effect, because around 50 percent of the coverage offered in the U.S. is provided through a self-funded plan governed by ERISA, it means that the “good deal” of the new dental insurance laws seems like no deal at all. Like many of the other executive directors at state dental societies around the country, we have members contacting us saying, “Didn’t we pass a law that stopped them from doing that?”

It is frustrating, and because ERISA is a federal law, solving the issue can seem like a Herculean task. But thankfully this doesn’t have to turn into a Greek tragedy. Both of us have taken part in recent meetings with the attorney generals’ offices in our states to talk about ways they can engage to change how the states approach ERISA preemption. We were able to tell them about a recent Supreme Court decision – Rutledge v. Pharmaceutical Care Management Association – that upheld an Arkansas state law that applied to pharmacy benefit managers. The decision narrowed the scope of the ERISA preemption, empowering states to take more control of how health care is provided for in their states.

In the meantime, we need more states to recognize the power they have to enforce dental insurance reform laws they have on the books. Both of us have recently seen the enactment of assignment of benefit laws in our states. Our dentists have let us know that some of the dental carriers don’t abide by these and other laws. We worked with the ADA to set up a meeting with the attorney general’s office in our states. In Arizona, we talked through not just assignment of benefits but five other laws that were being inappropriately ignored. The Arizona Dental Association was able to share how our department of insurance directly cites ERISA, saying it has no jurisdiction over self-funded plans. In West Virginia, we had a similar experience when meeting with our attorney general’s office. The staff heard from a local dentist about the frustrations of navigating laws that the insurance carriers choose not to comply with without ever giving a rationale why they choose not to. Both meetings were fruitful in terms of getting the conversation started. The attorney general’s staff seemed very interested in the information we shared, and we plan to follow up with them as the U.S. appellate courts grapple with Rutledge and other cases dealing with the ERISA preemption. We plan, for example, to share the June 10 amicus brief put forward by the ADA and other health care organizations that supports limiting the scope of ERISA preemption.

In short, we want the providers we work with to have a “good deal when it comes to dental insurance, especially when we have fought so hard to get a law put in place. Patients and providers shouldn’t be shortchanged because of a quirk in how their dental benefits are contracted with the employer group. We look forward to supporting the ADA and our fellow state dental societies as they pursue this strategy going forward.

Ms. Mason is the executive director of the West Virginia Dental Association and previously worked for the West Virginia Legislature as a budget analyst and was the policy director under a former governor. Dr. Cobb is the executive director for the Arizona Dental Association and was an Arizona state legislator from 2015-23 and a practicing dentist from 1993-2018.

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