John Freedman Reflects on the Aftermath of the Gobeille Decision and Possible State Reponses


By John Freedman

Many of us have followed this case closely.  Linda Green and I contributed to two of the amicus briefs (the NY Attorney General’s and the Harvard Law School’s) that were filed, and we both made the trip to DC to watch the oral arguments.

The decision is clearly a setback for APCDs.  Still, there are several possible paths forward for states.  First, some states are scrutinizing the decision and the Vermont law’s specific wording, seeking out opportunities to carefully craft legislation that complies with the Court  but also permits collection of ERISA plan data.  Though I am not a lawyer, it seems that is not a likely path for robust data collection. 

Second, as the majority opinion suggested, the Department of Labor could, on behalf of the states, require ERISA plans to provide claims data, albeit in a nationally standardized way.  This is worth pursuing, though it will (a) take considerable time, (b) may not be a priority of the DOL, and so take even longer or not happen, (c) may not provide all the data elements desired to support various states’ unique needs, and (d) may still come under legal challenge.  The late Justice Scalia had a back and forth as to whether ERISA permitted the DOL to collect detailed claims data that were not needed to oversee the fiscal stability of the plans.

Finally, I think it likely that many self-insured plans will voluntarily contribute data to APCDs.  For example, state and municipal employee plans are often the largest self-insured plans in a state, they are not regulated under ERISA, and they clearly have a vested interest in the health and the health care policy of their state.  Similarly, local or regional large employers have a long history of activism on health care matters in their communities.  While these are regulated by ERISA, I expect many of them would offer their data as well.  This is still not as good as mandated reporting, but it may be a workable way to get to a large fraction of claims data. 

Therefore it remains as important as ever to maintain good working relationships with the payer community, and to continue to pursue broad-based support for APCDs among local health care stakeholders.  That was always important, and if nothing else, Gobeille is a good reminder of that fact.

Linda and I continue to work closely with our clients and other stakeholders as this evolves.

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