U.S. employers have been trudging through the health benefits wilds like a drove of placid donkeys, quietly bearing the burden of employees' and dependents' checkups, broken legs and liver transplants on their weary backs.
Meanwhile, health care providers, pharmacies, workers' lawyers, state lawmakers and members of Congress are attacking the carrots and sticks inside the Employee Retirement Income Security Act of 1974, the law that keeps the benefits donkeys stumbling forward.
ERISA tries to bring a little bit of joy into the plan sponsors' eyes by offering them a little vegetable treat: uniformity. The promise that the health benefits rules in effect on one side of the Hudson River, in New York, will be about the same as the rules that apply when a worker crosses the river and goes into New Jersey.
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The most famous ERISA threat is the fiduciary responsibility provision — the idealistic rule that requires an ERISA plan fiduciary to put the plan participants' interests first.
The sweetness of the uniformity carrots has offset the bitterness of the fiduciary responsibility vulnerability.
But, today, policymakers and shapers are taking the carrots out of ERISA and adding sticks.
Groups for pharmacists, dentists and optometrists are rushing to get state lawmakers to pass single-state laws helping their members. States like Arkansas, Oklahoma and Texas have been especially quick to apply local benefits laws to employers that have worked very hard to have their health plans come under ERISA.
The idea that multistate employers might need protection from 50 states of regulatory quirks seems to be fading.
Related: Congress could let states poke holes in ERISA preemption to regulate PBMs
Meanwhile, of course, sponsors are facing big new waves of fiduciary responsibility suits.
Some employers are being sued over their failure to have enough psychic power to have guessed that they'd be sued over lacking encyclopedic knowledge of how prescription drugs get from pharmaceutical plants and into patients' dresser drawers.
The employers may eventually win the suits — after spending large sums on employer groups and ERISA lawyers.
Instead of offering employers carrots and sticks, ERISA is becoming a law that offers employers only a whack on the head with a stick.
Players that take the stick-only approach are forgetting that employers with fewer than 50 full-time equivalents don't have to provide much in the way of benefits.
The Affordable Care Act's "applicable large employers" — employers with 50 or more full-time equivalent employees — do have to provide health coverage or pay penalties. But they could simply pay the ACA penalties.
Or, eventually, they could minimize use of live humans and maximize use of AI robots. Maybe the AI robots will be happy to work without benefits, in exchange for a sip of electricity and an occasional trip to the robot salon.
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Allison Bell
Allison Bell, a senior reporter at ThinkAdvisor and BenefitsPRO, previously was an associate editor at National Underwriter Life & Health. She has a bachelor's degree in economics from Washington University in St. Louis and a master's degree in journalism from the Medill School of Journalism at Northwestern University. She can be reached through X at @Think_Allison.
