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Hastings International and Comparative Law Review

Authors

Byron Done

Abstract

In 1994 Congress addressed a national crisis concerning the soaring cost of health care in the United States and the growing population of uninsured Americans. Congress debated the issues, but declined to enact any legislation. The problems, however, still persist. A few states have attempted comprehensive health care reform through state legislation, but the federal Employee Retirement Income Security Act (ERISA) has consistently preempted those attempts. This Note analyzes the ERISA preemption clause, its role as a barrier to comprehensive state health care reform, and some of ERISA's perverse effects on the employees it purports to protect. The Note also examines how Hawaii escaped ERISA preemption to successfully reform its health care system to achieve near-universal access for its residents. This Note also examines how Germany is able to deliver health care to all its citizens and, at the same time, manage to control total national spending on its physicians. The author then discusses whether states could, considering ERISA preemption, adopt any aspect of Germany's health care system of universal access and its system for controlling spending on physicians. The author concludes that ERISA's preemption clause will undermine any attempt by states to comprehensively reform their health care system.

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