ERISA preemption of state mandated-provider laws.

The Employee Retirement Income Security Act of 19741 ("ERISA" or "the Act") is a comprehensive federal statute which imposes minimum standards on employee benefit plans. To prevent conflicting state regulation, ERISA preempts state laws which "relate to" these plans. 2 ERISA's preemption, however, is not complete. Consistent with the federal policy embodied in the McCarran-Ferguson Act 3 of leaving the regulation of insurance to the states, Congress saved from ERISA preemption any state law which regulates "insurance." '4 States have enacted legislation that requires insurers to pay for the services of a particular type of health care provider, even if the terms of the policy specify that payment will be made only to another type of provider. 5 These "mandated-provider" laws, as they are called, 6 "relate to" employee benefit plans because they change the terms of the insurance policies purchased by these plans. 7 Thus, unless mandated-provider laws regulate "insurance," such laws are preempted by ERISA as applied to employee benefit plans. The question whether mandated-provider laws are laws that regulate "insurance" is important because of the prevalence of such statutes, 8 the large number of individuals covered by in-5. See infra notes 29-30 and accompanying text. 6. Mandated-provider laws are also referred to as "freedom-of-choice" laws, and "antidis-crimination" laws. Chupack, Preferred Provider Organizations, 6 AM. C. SURGEONS BULL. 36, 36 (1984). Although the term "mandated-provider laws," as used in this note, refers specifically to laws that require insurers to reimburse certain types of health practitioners, the analysis presented here is equally applicable to laws that require insurers to reimburse certain providers of other kinds of policy benefits, such as legal services. See infra note 47. 7. See infra text accompanying note 36 and note 52. 8. Mandated-provider laws regulating health insurance policies have been adopted in nearly every state.