Erin C. Fuse Brown

Fuse Brown Highlights Widespread Roadblock to State Health Reform

The many facets of the health care system can be as varied as the types of ailments that exist and the patients who have them. Sometimes though there’s an issue that causes pain for many parts of the system.

Associate Professor of Law Erin C. Fuse Brown, J.D., M.P.H., highlighted one of them, the Employee Retirement Income Security Act (ERISA), in The New England Journal of Medicine’s Jan. 4, issue. ERISA is a federal law, established in 1974, that created minimum requirements for employee benefit plans.

Erin C. Fuse Brown

Erin C. Fuse Brown

While minimum requirements can be helpful in some ways, Fuse Brown and co-author Ameet Sarpatwari, J.D., Ph.D., describe how ERISA preempts “any and all state laws” that relate to ERISA plans. This conflicts in many ways with the federal government’s push to drive more health policy to the state level. As a result, it is “stifling state health care reforms in traditional domains of state authority.”

The journal article, “Removing ERISA’s Impediment to State Health Reform,” is drawing rave reviews in health law and policy circles and beyond. The topic spawned from research Fuse Brown had been doing on her own and with state policymakers. In her research on policies to address rising health care prices, she began to see a common theme: ERISA was a roadblock to state health reform, whether the topic was hospital prices, surprise medical bills, price transparency, or coverage expansion. Sarpatwari, who researches state policies to control drug pricing at the Program on Regulation, Therapeutics, and Law at Harvard Medical School, had been noticing the same trend.

Many in health law are concerned about the implications ERISA may have on the 2018 legislative sessions now underway across the states.

“There are big and small proposals at the state level that address issues ranging from drug prices to health insurance destabilization or surprise medical billing. States’ attempts to address all of these issues have limited reach due to this common roadblock,” Fuse Brown said.

Fuse Brown said she and Sarpatwari wanted to highlight the unnecessary barriers ERISA is creating for state health policy innovation and reform. She hopes the article helps encourage federal policy makers and legislators to address them.

“If states need to take on more responsibility and flexibility, some aspects of ERISA must change to accommodate that,” she said. “States can innovate and come up with novel solutions all they want, but if this federal law doesn’t change, the states will be fundamentally limited in what they can do.”

The New England Journal of Medicine also published online a separate article by Fuse Brown and co-authors, Jonathan Darrow and Aaron Kesselheim, about the Regulatory Accountability Act of 2017 and its implications for FDA regulation and public health on Dec. 20, 2017.