I have been thinking about Congress's ability to curb ERISA preemption and a little bit more about one pre-ACA federal health insurance coverage expansion: requiring that health plans cover adopted children equally with natural born children.
ERISA typically prevents the application of state coverage mandates to self-insured plans. Congress, may , however, modify ERISA's preemptive force on coverage mandates for adopted children as they see fit. They have seen fit with regard to adopted children underERISA Section 609(c). See: https://www.law.cornell.edu/uscode/text/29/1169
. This is an example of an extremely rare, before the passage of the ACA, federal coverage mandate.
The more difficult issue is when the requirement of ERISA 609(c) attaches. The language concerning "placed for adoption" can be difficult to interpret in our brave new world of assisted reproduction (query" can a child be said to be "placed for adoption" under ERISA 609(c) purposes only once it is born? discharged from the hospital? implanted in the uterus of a surrogate?)
HIPPA may offer some guidance here because of its inclusion of adoption as triggering special health plan enrollment issues, depending upon when that trigger has been interpreted to have been pulled. I merely note that HIPAA struggles with some of the same issues.
I have to wonder why ERISA is discussed as a huge immutable barrier to health insurance reform when, if we watch carefully, we can see ERISA itself being the object of reform.