AG defends States’ Rights to Regulate Health Insurance

AG defends States’ Rights to Regulate Health Insurance

Attorney General Dana Nessel

Media Contact:

 Kelly Rossman-McKinney
(c) 517-512-9342

Thursday, April 15, 2021

AG Nessel Joins Coalition in Defending States’ Rights to Regulate Health Insurance and Protect Consumers

Coalition Argues that Expanding the Scope of ERISA Eviscerates Critical Protections and Undermines Federalism   

LANSING – Michigan Attorney General Dana Nessel joined a coalition of 22 attorneys general in urging the U.S. Court of Appeals for the Fifth Circuit to protect states’ historic power to regulate insurance and protect their residents from fraud, abuse, or substandard health coverage.

The coalition filed the brief in Data Marketing Partnership v. U.S. Department of Labor, a case that challenged  the Department of Labor’s conclusion that a scheme—under which users obtain health insurance in exchange for sharing data as they browse the internet—failed to qualify as an “employee benefit plan” under the Employee Retirement Income Security Act.

“The Department of Labor got it right. This type of scheme is not an employee benefit plan, and characterizing it as one allows bad actors to skirt state-level regulations that are vital to protecting residents from fraud and abuse in the healthcare industry,” Nessel said. “I join my colleagues in defending states’ rights to regulate health insurance and protect consumers.”

ERISA is a federal statute regulating employee welfare and benefit plans. Where applicable, ERISA preempts—that is, supersedes—state law, meaning that certain ERISA plans are immune from direct state regulation.  Because states heavily regulate the sale of insurance to protect consumers, opportunistic entities have historically tried to disguise health plans sold to consumers as certain ERISA-based employee health plans to avoid state insurance rules.

In this case, Plaintiff Data Marketing Partnership runs a “partnership” that provides health insurance to thousands of “limited partners” in exchange for allowing an entity to collect and sell any electronic data generated by the limited partners as they use their personal devices and surf the Internet. DOL concluded that based on the partnership’s own description, the plan failed to qualify under any of ERISA’s provisions, but a federal judge in Texas invalidated that decision and ordered DOL to treat the plan as a valid ERISA scheme.

In the amicus brief filed in the U.S. Court of Appeals for the Fifth Circuit, the coalition argues that treating this scheme as an employee benefit plan under ERISA encroaches on states’ historic authority to regulate insurance and protect consumers, upsets the guardrails the Supreme Court and Congress have placed on ERISA’s scope, and disregards the actual nature of the relationship between Data Marketing Partnership and its limited partners, which has none of the hallmarks of an employer-employee relationship.

In the amicus brief, the coalition argues that:

  • There are significant federalism concerns with treating these health plans as ERISA plans. As the Supreme Court has consistently reaffirmed, regulating insurance is fundamentally a state, rather than federal, concern. ERISA supersedes state laws but does not disturb this fundamental state authority. As its name suggests, the Employee Retirement Income Security Act is concerned with pension and welfare plan management in the traditional employer-employee context, not with the regulation of insurance more broadly. In light of this backdrop, courts must carefully consider whether a plan falls within ERISA’s ambit because that decision affects fundamental issues of state versus federal authority.
  • Congress, the Courts, and DOL have historically been sensitive to limiting ERISA to avoid usurping state authority. Precisely because ERISA risks intruding into sensitive areas of historic state regulation, all three branches of the federal government have vigilantly policed ERISA’s boundaries to ensure that ERISA does not crowd out states’ abilities to protect consumers.
  • The district court’s decision expanded the definition of an “employee benefit plan.” The district court concluded that Data Marketing Partnership’s benefits arrangement—whereby participants obtain health insurance in exchange for sharing data as they browse the internet—was an “employee benefit plan” under ERISA. That conclusion undermines the idea that ERISA is limited to plans in genuine employment contexts. In this case, there is no evidence that the limited partners of Data Marketing Partnership are meaningfully employed by the Partnership or perform any services on its behalf.  If unscrupulous insurance providers could avoid state regulation simply by marketing insurance to individual “users” who passively provide data through everyday use of personal devices, ERISA would swallow states’ historic power to protect consumers.

Joining Attorney General Nessel in filing this brief are the attorneys general of California, Colorado, Connecticut, Delaware, the District of Columbia, Illinois, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and Wisconsin.

Whitmer Announces Steps to Fight Payroll Fraud

Whitmer Announces Steps to Fight Payroll Fraud



April 15, 2021



Governor Whitmer Announces Steps to Fight Payroll Fraud and Prioritize Michigan Jobs in State Purchasing Decisions


LANSING, Mich. – Today, Governor Gretchen Whitmer announced changes to protocols for state contract bids to implement the Michigan Jobs First Executive Directive 2019-15. These new protections will level the playing field for companies that play by the rules, allowing companies to compete fairly while protecting workers’ wages and health care. The new processes also account for the overall economic impact of a state contract on Michigan’s economy.


“Michigan is home to the hardest working people and best businesses in the world, and our state should work to ensure that more of our Michigan tax dollars support Michigan workers and businesses at every opportunity,” said Governor Gretchen Whitmer. “We want Michigan to be a home for opportunity for everyone, which begins with supporting businesses that provide fair wages and good benefits. Today’s actions strengthen our commitment to these priorities and bring the greatest possible benefit to Michigan’s businesses, workers, and families.”


Under the new protocols, the Department of Technology, Management and Budget will have bidders complete a vendor questions worksheet, which includes disclosure of a bidder’s labor and environmental compliance record, disclosure of information related to economic impact in Michigan, and a certification that the bidder has properly classified its employees. These disclosures and certifications protect workers against payroll fraud, which can happen when a business misclassifies its employees as “independent contractors,” which can deprive employees of access to overtime pay, workers’ compensation, health care, and other benefits. Payroll fraud undercuts businesses that play by the rules, treating their employees fairly and in accordance with Michigan’s labor laws.


 By taking these steps, the state will fully account for the overall economic impact of the potential supplier’s bid on Michigan businesses and workers, the wages and benefits offered by the supplier to its workers, the supplier’s track record of labor and environmental compliance, and the supplier’s commitment to economically-disadvantaged zones. DTMB will be able to use the information obtained through the disclosures on the vendor questions worksheet to incorporate consideration of labor and environmental track records into the procurement process.


As part of the implementation of Executive Directive 2019-15, DTMB also began a rulemaking process to allow for debarment of suppliers who demonstrate a lack of integrity.


“For companies that are doing the right thing, these anti-fraud measures are an important step forward that can promote fairness, competition, and greater workplace protections,” said Tom Lutz, Executive Secretary-Treasurer of the Michigan Regional Council of Carpenters and Millwrights. “After a year of a devastating pandemic, small businesses and workers have made tremendous sacrifices, and the governor’s actions will give them the support they need to compete on a level playing field. Tax fraud hurts businesses that are doing the right thing and leaves workers with lower wages and no health care when they get hurt on the job. Gov. Whitmer’s leadership is critical to getting Michigan back to work.”


According to Economic Policy Institute analysis, payroll fraud costs Michigan workers an estimated $429 million in wages and overtime pay between 2013 and 2015, impacting more than 2.8 million workers. Meanwhile, Michigan taxpayers are shortchanged $107 million a year in revenue through tax fraud when businesses misclassify workers by reporting employees as self-employed independent contractors or paying them off the books as a way to avoid paying their fair share of taxes, a Michigan State University study found.


Governor Whitmer’s announcement is the latest effort to fight tax and payroll fraud: In 2019, Michigan Attorney General Dana Nessel created a special task force to investigate and prosecute payroll fraud.

Flags lowered to Honor Former State Sen. Mark Jansen 

Flags lowered to Honor Former State Sen. Mark Jansen 



April 15, 2021



Gov. Whitmer Lowers Flags to Honor Former State Sen. Mark Jansen


LANSING, Mich. – Governor Gretchen Whitmer has ordered U.S. and Michigan flags within the State Capitol Complex to be lowered to half-staff on Friday, April 16 to honor the life and service of former State Sen. Mark Jansen. The flag honors will coincide with his celebration of life.


“Our state mourns loss of former state Senator Mark Jansen,” Governor Whitmer said. “He was someone who was deeply respected across the aisle. He will be remembered for his many years of dedicated service to the people of Michigan in the legislature and in the Michigan Department of Licensing and Regulatory Affairs. My deepest condolences go out to his family during this difficult time.”


Mark Jansen was born on September 13, 1959. He was a graduate of Grand Valley State University. He served as Gaines Township clerk from 1992 to 1996,  as a state representative in the Michigan House from 1997 to 2002, and as a state senator in the Michigan Senate from 2007 to 2014. He also served as the director of the child care licensing division for the Michigan Department of Licensing and Regulatory Affairs.


Jansen passed away on Tuesday, March 23 at the age of 61 years old.


The State of Michigan recognizes the duty, honor and selfless service of former state Senator Mark Jansen by lowering flags to half-staff. Michigan residents, businesses, schools, local governments and other organizations also are encouraged to display the flag at half-staff.


To lower flags to half-staff, flags should be hoisted first to the peak for an instant and then lowered to the half-staff position. The process is reversed before the flag is lowered for the day.


Flags should be returned to full-staff on Saturday, April 17.

Public to help Michigan’s goal of carbon neutrality

Public to help Michigan’s goal of carbon neutrality


EGLE Main GovD banner
April 15, 2021
Nick Assendelft, Public Information Officer,, 517-388-3135

Public asked to help guide Michigan’s goal of carbon neutrality by 2050

Online listening sessions scheduled for Earth Day and May 5

The Office of Climate and Energy is asking members of the public for their insights about climate and how Michigan can move toward carbon neutrality by 2050. Two online public listening sessions have been scheduled, one on Earth Day, April 22, and the second on May 5.

The Department of Environment, Great Lakes and Energy (EGLE) through its Office of Climate and Energy is charged with formulating and overseeing implementation of the MI Healthy Climate Plan, a roadmap to reducing greenhouse gas emissions statewide, with input from the Council on Climate Solutions.

Details of the public listening sessions using the Zoom meeting platform:

  • Thursday, April 22, at 10:30 a.m.; and Wednesday, May 5, at 6 p.m.
  • Links to join either session are posted to the webpage.
  • Those who wish to speak should send an email to with “Public Comment Request,” the date of the session at which you would like to speak and your name in the subject line. Those who send an email request will be allowed to speak first.
  • Members of the public who do not submit their names ahead of time will still be allowed to make a comment.
  • Each speaker will be limited to three minutes.
  • Sessions are designed to gather comments and input from the public; organizers will not answer questions posed by attendees.

Individuals needing language assistance or accommodations for effective participation at the listening sessions should contact Kimber Frantz at or 517-284-5035 at least seven days before the event to request language, mobility, visual, hearing, translation and/or other assistance.

Each listening session will begin with an overview of Gov. Gretchen Whitmer’s Executive Order 2020-182 that established the Council on Climate Solutions, an explanation of how it is structured and its role in advising EGLE and OCE on the development of the MI Healthy Climate Plan. The council’s input will be informed by the public comments at the listening sessions and guidance from five workgroups: Energy Production, Transmission, Distribution, and Storage; Buildings and Housing; Transportation and Mobility; Natural Working Lands and Forest Products; and Energy Intensive Industries.

The two scheduled public listening sessions will be recorded and posted in a timely manner to

Those who cannot attend the listening sessions can offer their topical comments at any time by sending an email to

The council is comprised of 14 state residents as well as representatives from nine state departments and agencies. EGLE Director Liesl Clark is the chair of the council, which is scheduled to meet publicly the fourth Tuesday of each month through the end of the year.

The MI Healthy Climate Plan is an effort to combat the impacts of climate change in Michigan. Climate change is having a detrimental impact on the state’s environment and economy and threatens the health and well-being of residents, with communities of color and low-income Michiganders bearing a disproportionate impact of climate disruptions. Gov. Whitmer has also signed Executive Directive 2019-12, in which Michigan joined the United States Climate Alliance, a bipartisan coalition of governors from 25 states devoted to pursuing the goals of the Paris Agreement.

EGLE does not discriminate on the basis of race, sex, religion, age, national origin, color, marital status, disability, political beliefs, height, weight, genetic information or sexual orientation in the administration of any of its programs or activities, and prohibits intimidation and retaliation, as required by applicable laws and regulations.

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Mask Spread Hope
For details on EGLE’s work during the pandemic, visit our COVID-19 response webpage. Follow state actions and guidelines at

Unemployment Benefits program ends April 17

Unemployment Benefits program ends April 17

April 14, 2021

Media Contact: Lynda Robinson, 313-348-8220

Due to the State of Michigan’s lower unemployment rate, the U.S. Department of Labor notified the Michigan Unemployment Insurance Agency to confirm that our state’s Extended Benefits (EB) program will no longer be payable after the week ending April 17, 2021. Extended Benefits are available when a Michigan’s total unemployment rate averages 6.5% or higher for three consecutive months.

The EB program goes into effect when the unemployment rate is high and provides an additional 13-20 weeks of benefits for those who have exhausted their regular unemployment benefits and other extension programs.

“Fortunately, with the federal extensions that were implemented on March 27, claimants who were on the Extended Benefits program most likely will be able to receive benefits through other federal programs such as Pandemic Emergency Unemployment Compensation (PEUC) or Pandemic Unemployment Assistance (PUA), said Liza Estlund Olson, acting director of the Unemployment Insurance Agency.

Michigan has paid approximately $419M in Extended Benefits since high unemployment rates triggered the Extended Benefits program. The Agency has begun notifying the 16,000 claimants currently receiving Extended Benefits to ensure they are aware that the week ending April 17, 2021, is the last payable week for these benefits.

If a claimant who was receiving Extended Benefits cannot establish a new, regular claim, or is not entitled to PEUC or PUA benefits, the claimant is no longer eligible to receive unemployment benefits.

Other state assistance programs are available for Michiganders who need assistance with making ends meet. Through the Michigan Department of Health and Human Services, claimants can apply for healthcare coverage, food and cash assistance and other assistance program as well as find other helpful state and local resources through the MI Bridges.

Michiganders looking for employment are encouraged to visit Pure Michigan Talent Connect at for a listing of more than 77,000 available jobs. The Michigan Works! system has service centers across Michigan with free job search resources including workshops, virtual job fairs, or career exploration and training. Call 800-285-WORKS (9675) or go online to