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supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan.”170 However, to avoid infringing upon states’ rights to regulate specific areas of interest, Congress included the caveat in § 1144(b) that “nothing in this subchapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance, banking, or securities.”171 This caveat has been referred to as the “savings clause” and it limits the broad application of state-law preemption by ERISA.172 When dealing with an employee benefits plan which is a multiple employer welfare arrangement, any law of any state which regulates insurance may survive preemption under the savings clause to the extent that the law provides: 1) standards requiring the maintenance of specified levels of

reserves and enforce such laws survive

specified levels of contributions; and 2) provisions to


While the


it has been

savings clause has helped state a source of judicial confusion,

interpretation, and reinterpretation by the Supreme Court.174

ERISA Preemption of State Parity Laws

In Kentucky Ass’n of Health Plans, Inc. v. Miller175


Miller”) the U.S. Supreme Court simplified and refined the test for determining whether a state law “regulates insurance” and is saved from preemption under ERISA’s savings clause. 176

As enacted

part two

of the Kentucky Health Care Reform Act, “Any Willing Provider” (“AWP”) statutes. 177

Kentucky The first

  • 170.

    29 U.S.C. § 1144(a) (2000).

  • 171.

    § 1144(b)(2)(A).

  • 172.

    Id.; see also Ky. Ass’n of Health Plans, Inc. v. Miller, 538 U.S. 329, 333 (2003) (referring

to § 1144(b)(2)(A) as the savings clause).

  • 173.

    § 1144(b)(6)(A)(i)(I)-(II).

  • 174.

    See Miller, 538 U.S. 329 at 340

. Justice Scalia has acknowledged that an analysis of

Supreme Court holdings regarding the savings clause may “raise more questions than they answer and provide . . . for divergent outcomes.” Id. Justice Blackmun went one step further, criticizing the statute itself: “[t]he two preemption sections, while clear enough on their faces, perhaps are not a model of legislative drafting.” Metro. Life Ins. Co. v. Mass., 471 U.S. 724, 739 (1985), overruled by Miller, 538 U.S. at 340.

  • 175.

    Miller, 538 U.S. 329.

  • 176.

    § 1144(b)(2)(A); see also Matthew G. Vansuch, Note, Not Just Old Wine in New Bottles:

K e n t u c k y A s s n o f H e a l t h P l a n s , I n c . v . M i l l e r B o t t l e s a N e w T e s t f o r S t a t e R e g u l a t i o n o f I n s u r a n c e 38 AKRON L. REV. 253, 256 & 257 (2005) (emphasizing Miller’s break from precedent and the creation of a new judicial test for ERISA’s savings clause). ,

177. See Ky. Health Care Reform Act, ch. 187, sec. 2, 1996 Ky. Acts (codified as amended at KY. REV. STAT. ANN. § 304.17A-270 (LexisNexis 2005), KY. REV. STAT. ANN. 304.17A-171(2) (LexisNexis 2005)); Miller, 538 U.S. at 331-32.

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