NRPM: Standards for Privacy of Individually Identifiable Health Information. c. ERISA.


ERISA was enacted in 1974 to regulate pension and welfare employee benefit plans that are established by private sector employers, unions, or both, to provide benefits to their workers and dependents. An employee welfare benefit plan includes plans that provide “through the purchase of insurance or otherwise ... medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, [or] death.” 29 U.S.C. 1002(1). In 1996, Public Law 104-191 amended ERISA to require portability, nondiscrimination, and renewability of health benefits provided by group health plans and group health insurance issuers. Numerous, although not all, ERISA plans are covered under the rules proposed below as “health plans.”

As noted above, section 514(a) of ERISA, 29 U.S.C. 1144(a), preempts all State laws that “relate to” any employee benefit plan. However, section 514(b) of ERISA, 29 U.S.C. 1144(b)(2)(A), expressly saves from preemption State laws which regulate insurance. Section of ERISA, 29 U.S.C.1144(b)(2)(B), provides that an ERISA plan is deemed not to be an insurer for the purpose of regulating the plan under the State insurance laws. Thus, under the deemer clause, States may not treat ERISA plans as insurers subject to direct regulation by State law. Finally, section 514(d) of ERISA, 29 U.S.C. 1144(d), provides that ERISA does not “alter, amend, modify, invalidate, impair, or supersede any law of the United States.”

We considered whether the preemption provision of section 264(c)(2) of Public Law 104-191, discussed in the preceding section, would give effect to State laws that would otherwise be preempted by section 514(a) of ERISA. Our reading of the statutes together is that the effect of section 264(c)(2) is simply to leave in place State privacy protections that would otherwise apply and which are more stringent than the federal privacy protections. In the case of ERISA plans, however, if those laws are preempted by section 514(a), they would not otherwise apply. We do not think that it is the intent of section 264(c)(2) to give an effect to State law that it would not otherwise have in the absence of section 264(c)(2). Thus, we would not view the preemption provisions below as applying to State laws otherwise preempted by section 514(a) of ERISA.

Many plans covered by the rules proposed below are also subject to ERISA requirements. To date our discussions and consultations have not uncovered any particular ERISA requirements that would conflict with the rules proposed below. However, we invite comment, particularly in the form of specific identification of statutory or regulatory provisions, of requirements under ERISA that would appear to conflict with provisions of the rules proposed below.