The American opioid epidemic cuts across all social divisions, touching the employed and unemployed. Those with private health insurance are one of the fastest-growing affected groups, but this group struggles most to get care. Despite their insured status, the privately-insured received treatment at half the rate of those with Medicaid and at even lower rates than the uninsured. This article focuses on a significant barrier to treatment for those in employer sponsored benefit plans: the discretionary clause. A discretionary clause grants the decision maker broad latitude and ensures that any federal court review is deferential. Claims processing in such a legal climate is stingy; recent investigations show that mental health and addiction claims are treated worst of all. Twenty-five states recently banned discretionary clauses in insurance products, but the bans do not reach most ERISA plans.

This article posits that ERISA should be amended to ban discretionary clauses. The article explains ERISA and discretionary clauses; it then shows the effect of discretionary clauses on actual cases and claims processing, focusing on mental health and substance abuse. The article then explains the recent movement away from discretionary clauses and shows why the arguments against discretionary clauses apply with even greater force to ERISA governed plans.