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Abstract

For nearly two decades, the “regulating insurance” aspect of the savings clause was as confusing and convoluted as trying to distinguish between the casks of unlabeled barrels of old wine that all smelled horribly similar. Miller clarified the savings clause analysis by establishing a broad, two-step test for determining if a state law regulates insurance. However, the district courts have been sluggish in recognizing the differences between the tests. The Supreme Court did not even cite to or rely on Miller when it struck down Texas’ patient rights statute on the basis of ERISA preemption in Aetna Health Inc. v. Davila. Nonetheless, 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. Its two-part test is a “clean break,” and not merely the old McCarran-Ferguson grapes recycled into Miller’s vintage.

This Note examines the new test for whether state laws regulate insurance for ERISA purposes and how the Supreme Court’s jurisprudential philosophy toward the savings clause has changed. Part II examines ERISA preemption and its impact on the health care industry. Part III presents the appellate and Supreme Court decisions. Part IV analyzes how Miller changed the analytical framework for the savings clause. Finally, Part V concludes that Miller is not just the old wine test for the regulation of insurance repackaged in new bottles.

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