All Hank, all the time.

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Originally posted by Hank Chinaski
In 1995, the Washington legislature effected sweeping changes to the state' s regulation of health insurance, and the Alternative Provider Statute (the "Act" ) is one part of that reform. The Act itself is relatively short:


Every health plan delivered, issued for delivery, or renewed by a health carrier on and after January 1, 1996, shall:

• (1) Permit every category of health care provider to provide health services or care for conditions included in the basic health plan services to the extent that:
  
  (a) The provision of such health services or care is within the health care providers' permitted scope of practice; and
  
  (b) The providers agree to abide by standards related to:
  
  (i) Provision, utilization review, and cost containment of health services;
  
  (ii) Management and administrative procedures; and
  
  (iii) Provision of cost-effective and clinically efficacious health services.

RCW 48.43.045(1).

The terms used in the Act are mostly defined in RCW 48.43.005 ("Definitions" ). In particular, a "health carrier" or "carrier" means a disability insurer, a health care service contractor, or a health maintenance organization. RCW 48.43.005(8). And a "health plan" or "health benefit plan" means "any policy, contract, or agreement offered by a health carrier to provide, arrange, reimburse, or pay for health care service," subject to a few exceptions. RCW 48.43.005(9). "Provider" is undefined in the statute, but refers to a doctor, dentist, acupuncturist, or other health care provider.

Thus, the Act forces every carrier (HMOs, disability insurers) to allow every insured to choose from an expanded list of providers (acupuncturists, massage therapists) for medical conditions covered by the insured' s policy. The Act does not force any carrier to contract with any particular provider (e.g., John Smith, M.D.) but merely forbids a carrier from excluding an entire category of licensed providers (e.g., all chiropractors or all naturopaths) from its policy.

a collection of HMOs and HCSCs, sought a declaratory judgment that the Act is preempted by ERISA and an injunction against its further enforcement. On cross motions for summary judgment, the district court ruled for the plaintiffs, finding that the Act "relates to" an employee benefit plan under ERISA, and that it is not saved as a regulation of insurance. Washington Physicians Serv. Ass' n v. Gregoire, 967 F.Supp. 424, 427-31 (W.D. Wash. 1997). The state appealed and the case was reversed.


They held ERISA provides for the federal regulation of employee welfare benefit plans. New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 650-51 (1995). To ensure that such regulation would remain "exclusively a federal concern," Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 523 (1981), Congress enacted a broad preemption provision, which states that ERISA "shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan . . . ." 29 U.S.C. § 1144(a). An exception is contained in 29 U.S.C. § 1144(b)(2)(A): "[N]othing in this subchapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance, banking, or securities."

Thus, an ERISA inquiry is a two-step process. a court first asks whether the Act "relates to" an employee benefit plan; and if it does, it then decides whether it is exempted from preemption by the savings clause in § 1144(b)(2)(A). The court concluded that the Act escapes ERISA preemption at the first step, but since it also thinks it would be saved as a regulation of insurance, it explains the second step as well.

Duh.