This article explores the arguments surrounding the fate of the preemption clause and argues that Congress must work to preserve self-insured employers' accountability to its employees while concurrently retaining the services of self-insured employers in the health care business. Part II analyzes the federal government's relationship with the health care industry, concentrating selectively on four episodes of federal regulation which helped create the health care crisis that we encounter today - the Hill-Burton Act, the Congressional amendments to the Health Professions Educational Assistance Act, the advent of Medicare, and ERISA. Armed with this understanding, Congress's evaluation of health care issues, specifically the elimination of the preemption clause from ERISA, may be able to avoid repeating history by committing the same mistakes as have been committed over the past fifty-years of federal regulation of the health care industry. Part III focuses on various arguments as to whether Congress should amend ERISA to allow participants to sue self-insured employers and HMOs for punitive damages under state tort law. It explains why and how the preemption clause was drafted into ERISA, explores the federal courts' interpretations of the clause and the arguments surrounding its abolition, and analyzes the possible repercussions that such a measure, if passed, would have on four major entities - patient, provider, self-insured employer, and health care entities. Part VI attempts to resolve the current arguments on eliminating the ERISA preemption clause by providing some practical suggestions to manage our looming health care crisis.
Note, ERISA Preemption: Will the Elimination of the ERISA Preemption Clause Help or Harm America's Ability to Deal with Its Pending Health Care Crisis, 14 J.L. & Health 133 (1999-2000)