Downtown San Diego sunset. Southern California, USA.
The federal Employee Retirement Income Security Act of 1974 preempts state efforts to regulate self-insured employer health plans and some fully insured employer health plans.
How close can a state get to regulating ERISA plans without colliding with ERISA?
California may soon find out.
The state is preparing to implement a new infertility treatment coverage law Jan. 1, 2026.
Related: California may expand standard small-group coverage to include IVF, hearing aids
One question is whether the law will take effect as written and on schedule. Lawmakers have already postponed the effective data from July 1, 2025. In the past, lawsuits and legislative affection have blocked some major California health benefits laws, such as a pre-Affordable Care Act law that could have required large employers in the state to offer their employees health coverage or else pay a tax.
Fertility care basics: Doctors help some people who are struggling to have babies by carrying out "in vitro fertilization" procedures. That means they try to create an embryo outside a human body and then implant the embryo inside a human womb.
California's fertility care laws: An existing California law already requires fully insured plans, including fully insured group health plans, to offer to cover fertility services other than IVF procedures.
Starting in 2026, California will require group plans with 100 or more employees to provide coverage for non-IVF infertility treatments and to cover at least three completed IVF attempts.
California will require small fully insured plans to offer access to coverage for infertility services.
The ERISA connection: Amanda Swanson and Jennifer Chung, employee benefits compliance law specialists at Woodruff Sawyer, a Gallagher affiliate, write in a commentary on the new law that it appears to apply to "all fully insured plans that cover at least one California resident, regardless of the state in which the contract is issued."
But "it is not clear how this would be enforced," Swanson and Chung write. "Employers with California employees whose plans(s) are subject to ERISA should consult with their legal counsel regarding whether and to what extent this mandate applies to their plan."
What it means: The uncertainty about how California's new fertility mandate will fit, or won't fit, with ERISA preemption is the latest example of states and federal policymakers creating compliance brain teaser puzzles for employers.
The ERISA Industry Committee and the American Benefits Council have been working to explain and defend ERISA preemption.
ERISA preemption defenders face resistance from groups representing physicians, pharmacists, dentists, vision care providers and many other angry providers.
The rumbling in California could be a sign that more ERISA compliance brain teasers are coming.
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