ERISA (29 U.S.C. §1000 et seq.) was enacted to regulate employer-sponsored pensions. The law contains a so-called “preemption” provision that exempts employer plans from most state laws. State laws that “regulate insurance” are saved; thus, employers that purchase insurance remain subject to state law under the holding in Metropolitan Life. ERISA also specifies, however, that employee benefit plans may not be considered insurance (29 U.S.C. §1144). In trying to make sense of this provision, the Supreme Court drew a distinction between employers that buy insurance and those that self-insure under their own ERISA plans. These self-insured plans are immune from the provisions of state law.

These were ERISA amendments enacted as part of the same legislation that created the VFC program in 1993 (29 U.S.C. §1169 (d)).

The original House VFC proposal would have covered all children uninsured for immunizations (that is, it would have reached underinsured children as well). The final legislation omitted all but a small percentage of underinsured children. The ERISA maintenance-of-effort provision was part of the House bill and was determined to be necessary to protect insured children from employer rollbacks in coverage in the face of the new program. Despite the fact that coverage of underinsured children was dropped in conference, the ERISA amendments survived.

This estimate is based on the the KPMG survey’s estimate of the proportion of employees with each type of plan coverage (conventional, health maintenance organization [HMO], preferred provider organization [PPO], point of service [POS]), multiplied by the likelihood that each of those types of plans covers childhood immunizations, as shown in Table 3–2. Information from the 1998 Current Population Survey (Table 3–1) provides an estimate of the total number of children with employer-based coverage.

Three of five reported coverage of poliovirus vaccine, inactivated (IPV); two of five reported coverage of rubella; four of five reported coverage of tetanus; one of five reported coverage of influenza; one of five reported coverage of pneumococcal vaccine; and two of five reported coverage of diphtheria, tetanus, and acellular pertussis (DTaP).

The initial EPSDT statute did not specify particular services.

Public Law 101–239, §6403(a), adding §1905(r) to the Social Security Act. Section 1905(r), 42 U.S.C. §1396d(r), sets forth all mandatory EPSDT services, including immunizations.

Public Law 103–66, §13621(b), adding §1928 of the Social Security Act, 42 U.S.C. §1396s. The VFC program was originally proposed as the initial phase of the Clinton Administration’s national health care reform proposal; this is reflected in another provision of the law, which would terminate the VFC program at the point at which federal law provides for immunization services for all children as part of a “broad-based reform of the national health care system” (§1928(g) of the Social Security Act; 42 U.S.C. §1396s(g)).

§1928(h) of the Social Security Act; 42 U.S.C. §1396s(h). Children aged 19 to 21 are thus entitled to vaccines as part of the EPSDT program, but their vaccines are not covered through the VFC program. States remain responsible for immunization services for this age cohort, with federal contributions available at normal federal medical assistance percentage rates.

This provision is found at §1903(i)(14) of the Social Security Act; 42 U.S. C. §1396(b).

§1928(b)(3) of the Social Security Act; 42 U.S.C. §1396s(b)(3).

§1928(f) of the Social Security Act; 42 U.S.C. §1396s(f).

These are children under age 18 whose family income exceeds the Medicaid income level for children but does not exceed 50 percentage points above the Medicaid eligibility level (§2110(b)(1)(A) of the Social Security Act; 42 U.S.C. §1397jj(b)(1)(A)).

§2104 of the Social Security Act; 42 U.S.C. §1397dd.

§2103(c)(1)(D) of the Social Security Act; 42 U.S.C. §1397cc(c)(1)(D). Federal SCHIP guidelines require all SCHIP programs to cover immunizations in accordance with ACIP