The Coming Health Insurance Transition

Brendan S. Maher

Professor of Law and Director, Health Law, Policy & Management Program, Texas A&M University School of Law. Stanford A.B.; Harvard J.D.

This Article builds in part upon ideas originally formed while litigating benefit and insurance disputes before the United States Supreme Court, including Gobeille v. Liberty Mut. Ins. Co., 577 U.S. 312 (2016) (representing Gobeille); Montanile v. Bd. of Trs. of Nat’l Elevator Indus. Health Benefit Plan, 577 U.S. 136 (2016) (representing Montanile); Heimeshoff v. Hartford Life & Accident Ins. Co., 571 U.S. 99 (2013) (representing Heimeshoff); U.S. Airways, Inc. v. McCutchen, 569 U.S. 88 (2013) (representing McCutchen); and Conkright v. Frommert, 559 U.S. 506 (2010) (representing Frommert). I would also like to thank Professors Norman Stein, Dana Muir, Matthew Lawrence, Natalya Shnitser, Elizabeth McCluskey, Amy Monahan, Valarie Blake, Jessica Roberts, and Shaun Martin, as well as all the attendees at the Thirteenth Annual Employee Benefits & Social Insurance Conference, for their valuable insights. I would also like to thank my superb research assistants, Gregory Fassuliotis and Brandon Robinson, for their tireless work. All errors are mine.

1 Sep 2026

For decades, the dominant form of private health insurance in the United States—by far—has been employment-based group health insurance. Somewhere in the range of 175 million employees and their families receive health care coverage through a system in which employers serve as financiers, procurers, administrators, and fiduciaries of the health insurance promise. An overwhelming percentage of those health insurance arrangements are governed by ERISA, with little room for state law.

That is going to change.

This Article explains—for the first time anywhere—why and how. Because of the tremendous and as-yet unrecognized power of an obscure-sounding funding arrangement called the Individual Coverage Health Reimbursement Arrangement (ICHRA), a massive insurance transition—away from ERISA-governed group insurance and toward individual insurance—is likely to occur. It’s already underway. The end result, whether sooner or later, will be a meaningfully transformed insurance landscape policymakers will not have the freedom to ignore. It will happen much like how retirement accounts replaced pensions in the retirement context.

The second claim this Article makes is normative. The transition from pensions to retirement accounts made society worse off. Yet this benefit transition—from ERISA insurance to individual insurance—is one that could make society better off, if sensibly regulated. A reasonable transition to individual insurance will likely have salutary effects on the exchanges and their offerings; on employees; on employers; and on regulators.

To read this Article, please click here: The Coming Health Insurance Transition