Outcome of suit against Department of Labor could boost skimpy employer health plans

A long-running lawsuit challenging what it means to be an employee and therefore have access to work-based health plans is being closely watched by health policy analysts. Its outcome could spur the availability of lower-cost but potentially skimpier health coverage that skirts some consumer protections.

Court papers indicate a settlement in the case against the Department of Labor may be in the works, although the parameters of any such deal are unknown.

It would come amid premium surges on Affordable Care Act marketplaces that have led millions to drop coverage this year. The Trump administration has also been sharply focused on expanding access to alternative coverage, such as short-term plans that avoid ACA rules on preexisting conditions and benefit requirements.

“Depending on what happens with the settlement, this could be an even bigger expansion,” said Katie Keith, director of the Center for Health Policy and the Law at the Georgetown University Law Center. “People are worried that it is the opening salvo into promoting junk plans that don’t meet the ACA requirements.”

The plaintiff, Data Marketing Partnership, filed its case against the Department of Labor in 2019, during the first Trump administration. It wants official recognition as an employer so it can continue to allow its limited partners to buy into a type of job-based health insurance that doesn’t have to comply with state insurance rules or offer coverage as robust as required under the ACA.

But to grasp the claim, one also has to understand how the coverage works.

A consumer shopping for health insurance may come across information online or from a marketer about this concept, sometimes called “limited partnership” coverage. The pitch? Buy insurance offered through Data Marketing Partnership and handled by LP Management Services. To qualify, the consumer must download an app that tracks their internet searches. The company could then sell that data.

Some potential consumers may be turned off by the thought of their internet searches being tracked, but others may find it appealing because it allows them to become a limited partner eligible to buy into the company’s employee health insurance plans. But can these partners be considered employees?

The court’s answer has potential implications for regulators and consumers. Some health policy and market experts warn that a green light could lead to a proliferation of aggressively marketed and potentially questionable insurance with limited recourse for consumers because the plans would be exempt from state oversight.

“If this took off, you logically could see the rise of a whole bunch of what, functionally, would be unregulated insurance companies,” said Ali Khawar, who was the principal deputy assistant secretary of the Department of Labor’s Employee Benefits Security Administration during Joe Biden’s presidency and now runs his own consulting outfit.

No one knows if the department is going to change its long-running stance defending the case. But any settlement could add more uncertainty to insurance markets.

Already insurers are requesting double-digit increases in ACA premiums again next year, partly because declining enrollment often means that the healthiest policyholders are leaving. That trend could accelerate in coming years as more people are drawn into alternatives such as limited-partnership policies.

States Act as Federal Case Plays Out

The Department of Labor defended the case throughout the first Trump administration and the Biden era, issuing a sharply worded advisory opinion in early 2020 stating that people who simply download software to “capture data as they browse the Internet” are not “employees or bona fide partners.”

A district court judge in Texas, who had previously ruled the ACA unconstitutional in a decision ultimately rejected by the Supreme Court, called the advisory opinion “arbitrary and capricious” in a 2020 ruling in favor of the data marketer. The U.S. Court of Appeals for the 5th Circuit largely upheld the lower court’s decision but ordered it to reconsider whether someone who downloads software is either a “working owner” or a “bona fide partner.”

The employer-employee relationship is at the heart of the case because of a 1974 federal law designed to help large, self-insured employers offer retirement and health benefits to workers without having to meet varying rules from multiple states.

That law — the Employee Retirement Income Security Act — allows such plans to avoid most rules set by the states, which generally regulate most other types of insurance and assist consumers who report problems with their policies. As self-insured employer plans, the policies also don’t have to comply with some ACA rules, such as the requirement to cover 10 broad categories of “essential health benefits.”

“If the case goes the wrong way, it could impact consumers or hamstring the states,” said Marie Grant, Maryland’s insurance commissioner.

Arguments over what constitutes an employer plan are not new, and other organizations have tried offering such coverage. Some states have taken action against purveyors of limited-partner policies.

Maryland in 2024 fined a company, The Vitamin Patch, for offering limited-partnership insurance after investigating complaints and determining it was not licensed to sell coverage in the state.

Washington in 2021 ordered another company to stop offering its plans in the state and fined it $25,000.

Maine and Connecticut in 2024 warned consumers about this type of coverage.

“These plans do not provide comprehensive medical coverage and can leave consumers with large, unpaid medical bills,” according to Connecticut’s notice.

Maine’s announcement noted that entities offering these types of health insurance included The Vitamin Patch as well as Affiliated Workers Alliance, Consumer Data Partners, Employers Business Alliance, Socios Buenos, and Strategic Limited Partners.

State insurance commissioners filed legal arguments in the Department of Labor case citing their concerns about losing the ability to enforce consumer protections.

“This is not a Republican-Democrat thing,” Khawar said. “It’s really a story about state authority, the way such authority would be significantly undermined in insurance markets.”

What’s the Risk?

Still, these limited-partnership plans are viewed by proponents as a needed additional choice for consumers, at potentially lower cost than ACA plans.

When the case was filed, attorneys general from seven right-leaning states, for example, urged the Department of Labor to back Data Marketing’s request to designate its limited partners as employees. That would provide an option for people who “earn too much to qualify” for ACA subsidies and be an interim solution until the ACA could be repealed and replaced, they wrote. They argued that states would retain some regulatory authority and added that the Department of Labor, which oversees self-insured employer plans, could set requirements to “encourage” stable companies to enter the market.

Critics, the attorneys general wrote, might fear that ACA alternatives will draw away younger or healthier people, thus affecting those who remain, but they argued that had already happened.

Data Marketing’s attorneys emailed KFF Health News that they could not provide a comment for this article because the case is in active litigation. Neither the White House nor the Centers for Medicare & Medicaid Services, which oversees the ACA marketplaces, responded to questions from KFF Health News about whether the Department of Labor has changed its stance and how the administration views limited-partnership health plans.

In court filings, however, Data Marketing said that without an employer designation, it would have to end the insurance coverage, affecting about 50,000 policyholders. That would also hurt its ability to generate revenue, it argued, because offering insurance is “a significant attractor” to get people to join its partnership and let it access their electronic data.

Ellen Montz, who helped oversee ACA implementation in the Biden administration and is now a managing director at consultancy Manatt Health, had a different take. “The only reason why these sorts of products exist is because they aren’t beholden to consumer protection rules of the ACA and can essentially make money by attracting good risk, people who are healthy,” she said.

Maryland’s Grant echoed this warning, saying that proliferation of such plans could lead to even higher premiums in the ACA markets, if those who remain are older or sicker than those who leave.

Nineteen patient advocacy groups sent a letter to the Department of Labor Aug. 11 urging it to continue its defense in the case, warning that a settlement that says such arrangements create an employer-employee relationship could “significantly” undermine “both state regulatory authority and decades of bipartisan efforts to promote stable, well-functioning health insurance markets.” Some of those groups had filed a legal brief in support of the department in 2021.

Days after the August letter, U.S. Rep. Bobby Scott (D-Va.), the ranking member of the House education and workforce committee, warned the department against increasing the availability of “questionable employment relationships” and the insurance they offer.

He cited reports of call centers’ misleading consumers “who think they are enrolling in comprehensive health insurance but instead sign up for junk coverage under the guise of creating an employment relationship with what the consumer believed to be a traditional health insurer.”

KFF Health News is a national newsroom that produces in-depth journalism about health issues and is one of the core operating programs at KFF—an independent source of health policy research, polling, and journalism. Learn more about KFF.

This article first appeared on KFF Health News and is republished here under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License.

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