Matthew Vansuch, a 3L at the University of Akron School of Law, has written a very interesting note for the Akron Law Review, discussing the impact of the U.S. Supreme Court case of Kentucky Association of Health Plans, Inc. v. Miller. The note is entitled “Not Just Old Wine in New Bottles: Kentucky Association of Health Plans, Inc. v. Miller Bottles a New Test for State Regulation of Insurance.” As you may recall, the Miller case changed the test for determining whether a state law is deemed to be a law “which regulates insurance” under the ERISA “savings clause” to the following two-prong test: (1) the state law must be directed specifically directed toward entities engaged in insurance, and (2) the state law must substantially affect the risk pooling arrangement between the insurer and the insured. The article contains an interesting observation about how federal district courts since Miller have been “sluggish” in coming to an understanding of the perceived “differences between the common sense-McCarran-Ferguson test and the Miller test.” Vansuch argues that “Miller is a new blend of wine fermented from a different batch of grapes than those used in the bottling of the casks of old, unlabeled wine barrels that confused everyone, including the Supreme Court.” He further argues that Miller’s two-part test is a “clean break,” and “not merely the old McCarran-Ferguson grapes recycled into Miller’s vintage.”

Read more about ERISA preemption in previous posts which you can access here.