*1 LIBERTY MUTUAL INSURANCE
COMPANY, Plaintiff-
Appellant, DONEGAN, Capacity L.
Susan her
the Commissioner Vermont De
partment Regulation, of Financial De
fendant-Appellee.
Docket No. 12-4881-cv.
United States Appeals, Court of
Second Circuit.
Argued: 18, 2013. Nov.
Decided: Feb. *2 LLP,
McDermott Emery Will & Chicago, IL; Baker, M. Miller McDermott Will & LLP, Emery DC, Washington, on the brief), Appellant.
Bridget Asay, C. Assistant Attorney *3 General, Office of Attorney General, Montpelier, Sorrell, VT for H. William At- General, torney Vermont, State of Ap- pellee.
Kathryn Todd, Comerford National Litigation Center, Chamber Washington, (Jane Holman, DC E. National Chamber Center, Litigation Washington, DC; Carol Connor Cohen Nancy Heermans, S. LLP, Arent Fox DC, Washington, on the brief), for amicus curiae Chamber of Com- merce of the United States of America in support Appellant. Moore,
Melissa Department of La- bor, (M. Washington, Smith, DC Patricia Labor; Solicitor of Hauser, Timothy D. Solicitor; Associate Nathaniel Spiller, I. Appellate Counsel for Special Litiga- tion, brief), on the for amicus curiae Acting Secretary of the Depart- United States ment of Labor in support of Appellee. KEARSE, JACOBS, Before: STRAUB, Judges. Circuit JACOBS, DENNIS Judge: Circuit Liberty Mutual operates Insurance Co. self-insured plan. health A requires all “health insur- ers” (including plans) self-insured to file reports with the State containing claims data and other “information relating to health care.” A regulation specifies State how such information must be recorded and transmitted. subpoenaed
When Vermont claims data from the Liberty plan’s Mutual third-party administrator, this suit was commenced in Nancy Ross, G. Em- McDermott Will & the United States District Court for the LLP, (John ery Chicago, Litwinski, /.). IL (Sessions, A. District of Liber- (B) needs and health care identifying a declaration sought ty Mutual policy; care informing health Security Income Retirement Employee (“ERISA”) preempts Ver- (C) of inter- evaluating of 1974 the effectiveness Act The district regulation. patient programs improving mont statute on vention in favor summary judgment granted outcomes; court of Vermont. (D) various between comparing costs settings approaches; treatment is not clause preemption The ERISA (E) to consumers information providing preemption doc- and ERISA self-reading care; of health purchasers early judicial con- trine is static. (F) and afforda- quality improving wording sensus, the broad based care and health bility patient health (and history), legislative clause preemption coverage. broadly. was to construe *4 by back pulled has precedent More recent Id. against presumption setting a rebuttable database, the statute populate To regula- care state health
preemption insurers, care health requires “[h]ealth however, constants, remain: tions. Two facilities, gov- and care providers, health (1) ERISA’s recognition that data, reports, agencies” to “file ernmental multiplicity to avoid clause is intended information,” schedules, statistics, or other requirements burdensome necessary, at Department deems as the administration; and ac- in the manner the place the time is a core “reporting” knowledgment 9410(c)-(d). §at requires. Department function. These administrative Department The statute authorizes us to conclude lead two considerations filing of “health insurance require the law, compel applied the Vermont by used information claims and enrollment data, Mutual reporting of “any other informa- insurers” and health and re- therefore reverse We preempted. costs, prices, to health care relating tion in favor of entry judgment mand for utilization, Id. at or resources.” quality, Liberty Mutual. 9410(c). § comply Knowing and willful failure BACKGROUND more than by penalty of not punishable 9410(g). § $10,000 violation. See id. at per I Department promulgated In establishes implement the statute regulation of “a unified the maintenance provides for Claims the Vermont Healthcare create tit. Stat. Ann. care database.” Vt. health System Evaluation Reporting and Uniform 9410(a)(1). 18, § “enable[s]” The database (the System”). Regulation “Reporting See Banking, Insur- Department the State’s § 1 H-2008-01, R. 21-040-021 Vt.Code ance, Health Care Adminis- Securities H-2008-01”). (“Regulation carry “to out (“Department”)1 [its] tration myriad categories of reporting of requires ..., including”: duties “Health 508-10. claims data. See infra sub- required “regularly Insurers” are capacity and distri- (A)determining the data, claims resources; pharmacy mit medical claims existing bution of recently to Vermont’s Depart- were transferred called the bilities Department is now 1. The Many Regulation. § of the ment of Financial See id. 9410. Mountain Care Board. Green responsi- Department's care database health data, data, eligibility ner,” member provider 9410(f). “[Djirect § id. personal data, and other information relating to identifiers,” name, such as address, and health care provided to Vermont residents Social Security number, may public- not be provided and health care by Vermont ly 9410(h)(3)(D). § disclosed. Id. health providers and facilities to both other Sixteen states collect health care Vermont residents and non-residents data for their own health care claims da- specified electronic format Depart- to the (State tabases. J.A. 368-74 Health Re- ment for each line of health ... business porting Table). Laws Summary Data per the data requirements submission con- requirements submission vary. Some in” appendices tained to the regulation. states provide only for voluntary report- 4(D). Regulation H-2008-01 ing. See id. expressly Some exclude “[hjealth A insurer” is broadly defined self-insured plan data from their “any to include company, health insurance database reporting laws. See id. The party administrator, ... third ... however, majority, follow Vermont in re- entity conducting administrative services quiring such plans to report claims data. for business or possessing data, claims eli- See id. data,
gibility files, provider in- other formation relating to health care provided II
to Vermont residents or *5 Liberty Mutual Insurance Co. is the ad- providers health care and facilities.” Id. ministrator and fiduciary named of a 3(X).
§ (the “Plan”) health plan provides that ben- Begging the preemption question, the efits to 137 individuals in Vermont and to “[hjealth term “may include, insurer” also 80,000 over individuals nationwide. The -permitted to the extent law, under federal Plan is “self-funded,” i.e., “self-insured” or insured, administrator of an self-in- health care paid claims are from Liberty sured, publicly or funded health care bene- general Mutual’s assets. fit offered by public private and enti- Plan added). provide documents ties.” Id. that the (emphasis “Plan A health has been established for insurer with exclusive ben- or more enrolled or cov- efit of Participants except and as ered members each otherwise in month during a provided ..., all year calendar contributions under designated is a “Mandated may Plan 3(Ab). be used Reporter.” § such purpose.” Id. All other entities J.A. 39. The “Voluntary 3(As). represent are documents also Reporter[sj.” § records, that medical such as those related Department The makes the collected to risk screening, factor kept “strictly are data “available as a insurers, resource for confidential.” J.A. The rep- 71-72. Plan employers, providers, purchasers of health resents, however, comply it “shall care, and agencies to continuously with all other state and federal law to the review health utilization, care expendi- extent not preempted by ERISA and to tures, performance and in Vermont.” Vt. the extent such require compliance by 9410(h)(3)(B). Ann. tit. Stat. the Plan.” J.A. 41. Department decides “the extent” such by HIPAA,” disclosure “allowed the feder- many Like self-insured employer health al Health Insurance Portability Ac- plans, and the Plan third-party uses a adminis- countability 1996, id., Act (“TPA”). and maintains trator Blue Cross Blue Shield of the “confidentiality (“Blue code” which filed Massachusetts, Cross”), Inc. as the information “is handled in an man- ethical Plan’s TPA for Vermont participants, does was and that Vermont review, ute and and processing,
claims-handling: summary judgment. to entitled Liberty therefore its contract payment. Under id. See transferred Mutual, any information for the solely be used must Cross Blue DISCUSSION Plan, and administering
purpose guard against must auditors Cross Blue I in- of health disclosure unauthorized court the district agree with We Mutu- Liberty 57-58. See J.A. formation. standing has chal Liberty Mutual it because Voluntary Reporter itself is al to Blue Cross.2 subpoena lenge issued members covered than 200 fewer has “the ir has demonstrated Mutual Liberty (and decided presumably has Vermont of stand minimum constitutional reducible Cross volunteer); Blue but because (1) protected legally of a “an invasion ing”: pos- Reporter and a Mandated qualifies (a) particu and concrete which interest data, the Plan’s claims sesses (b) imminent, not larized; or actual and mandatory. of its data is (2) “a causal conjectural hypothetical”; a sub- issued August In the con injury and between the connection supply that Blue Cross demanding poena (3) inju of’; that the complained duct files,” “[m]edical “[eligibility Plan’s by a favorable likely be redressed ry will files,” claims files” “[p]harmacy claims Wildlife, Lujan decision. Defenders noncompliance might threatened that of Blue suspension in fines and result (1992) citations, (footnote, L.Ed.2d 24- business. authority do J.A. Cross’s omitted). quotation marks internal Cross instructed Blue Liberty Mutual subpoena no moment that It suit, seeking filed this comply not to directly and not to Blue Cross was issued (1) preempts a declaration agreement TPA Mutual. regulation; will hold Liberty Mutual provides that *6 of the blocking enforcement injunction an for financial harmless Blue Cross stay en- agreed to subpoena. Vermont in “arising from or connection charges judicial subpoena pending of the forcement Liberty Mutu Plan. J.A. 54-55. with” the ques- preemption of the ERISA resolution (1) between faces a choice al therefore tion. the over Plan’s allowing Blue Cross turn motions, sought to dueling In considers a Liberty what Mutual data in standing lack of complaint the for dismiss as Plan administrator of its duties violation claim, Liber state a for failure to non-compli directing fiduciary; or summary judgment. moved for ty Mutual ance, Blue Cross for the indemnifying parties, the district the consent the With way, under penalties. Either civil ensuing as cross-motions treated motions court a Liberty suffers redressa Lujan, Mutual Mut. Liberty summary judgment. See for result Ver injury-in-fact as direct ble 2:11-cv-204, Kimbell, 2012 No. Co. v. Ins. threatened, action. mont’s imminent 2012). (D.Vt. 9, 5471225, *1 Nov. WL II Mutu- The court concluded grant de We review novo standing but Article III had al preemption summary judgment on stat- preempt did not determining power the court enter- standing parties briefed the have not 2. The Seldin, 422 U.S. Warth v. standing tain suit.” “is appeal, Article III issue on but (1975). case, 343 45 L.Ed.2d every question in federal threshold See, question. e.g., v. Cnty. and all Wrobel State laws they insofar as may now Erie, (2d Cir.2012). 692 F.3d Sum or hereafter relate to any employee benefit mary judgment 1144(a) if the appropriate plan.” added). § record Id. (emphasis shows “there is no genuine dispute as to With remarkable consistency, the legisla- any material fact and the movant is enti history tive reflects that this broad word- judgment tled as a matter of ing law.” purposeful: was it was intended to 56(a). may Fed.R.Civ.P. “[W]e reverse eliminate the threat of a multiplicity of grant of summary judgment and order conflicting laws,3 or inconsistent state judgment for non-moving if party we to achieve preemptive broad effect in the undisputed support in find the record enti areas of record-keeping, reporting, and tling non-moving party judgment disclosure.4 England matter law.” New Health Vermont argues the district court —and Emps. Care Union v. Hosp., Mount Sinai agreed Congress could not have in- —that (2d Cir.1995). 1024, 1030 65 F.3d tended broad of state report- ing laws because the same Congress also
A passed the National Health Planning and ERISA’s comprehensive regula Resources Act Development of 1974 governs (“NHPRDA”). scheme tory most bene The NHPRDA provided fit including self-insured health the establishment of state health plans. § See U.S.C. 1003. ERISA re planning agencies and authorized these quires plan annually to file agencies administrators analyze “assemble and data Department with the reports of Labor health; de concerning” health care delivery, tailing financial resources, and actuarial use; information. and related environ- §§ See id. 1021-1024. The Department of mental factors. 93-641, See Pub.L. No. 1513(b) Labor authorized “to (1975). undertake re Stat. surveys search and connection Supreme Court consulted the NHPRDA collect, therewith to compile, analyze and to decide ERISA preemption in a case in data, publish information, and statistics re which the expressly NHPRDA contem- lating to employee plans.” plated a state regulatory measure. See § 1143. broadly preempts “any N.Y. State Blue Cross & Conference of (1974) (Statement Cong. 3. See 120 (1973), Rec. S.Rep. 4. See No. reprint- at 35 Dent) ("I Rep. wish to make note of what is (“Be- ed in 1974 U.S.S.C.A.N. *7 many crowning the to achievement of this cause employee of the interstate character of legislation, the reservation to Federal authori- benefit the Committee it believes essen- power ty regulate the sole to the field of provide tial to a for uniform source of law in employee plans. benefit preemption With the vesting, funding, the areas of insurance and field, the we protection of round out the af- standards, portability evaluating fiduciary for participants by eliminating forded the threat conduct, creating single reporting and a for conflicting and of State inconsistent and local system and disclosure in lieu burdensome regulation.”); (Statement id. at 29933 of Sen. multiple reports.” added)); (emphasis Williams) (discussing preempt “inten[t] to 93-533, (1973), H.R.Rep. No. reprinted at 17 regulations, field for Federal eliminating thus in 1974 (virtually U.S.S.C.A.N. 4655 conflicting the threat of or inconsistent State same); (1974) Cong. see also 120 Rec. 29942 regulation and local employee benefit (Statement Javits) (“In of Sen. view of Feder- plans” stating principle that “[t]his is preemption, compelling al State laws disclo- apply to intended in its broadest sense to all private pension sure from plans welfare or governments, actions of State or any local or superseded.”). ... will be thereof, instrumentality which have the force law”). or effect of 504 employee affect may Co., actions Some Ins. v. Travelers Plans Shield
Blue
remote,
tenuous,
in too
plans
1671, 131
benefits
665-67, 115 S.Ct.
a find-
to warrant
a manner
however,
peripheral
Here,
(1995).
695
L.Ed.2d
plan.
to”
“relates
the law
ing that
indicative.5
similarly
not
is
NHPRDA
Merry, 592
v.
Tel. Co.
Tel. &
Cf. Am.
tension between
were
if
there
And
1979) (state
(C.A.2
gar-
118, 121
F.2d
ERISA, it was relieved
NHPRDA
income
spouse’s pension
of a
nishment
repealed.
was
the NHPRDA
1986 when
support orders
alimony and
to enforce
litigation
present
The
pre-empted).
not
B
a border-line
present
plainly does
Court, ini-
Court,
this
Supreme
The
about
no views
express
and we
question,
broad-
preemption
tially applied
to draw
appropriate
be
it would
where
(“relate
statutory phrase
ly as
the line.
require.
seemed
plan”)
benefit
employee
21, 103
2890.
100 n.
S.Ct.
Id. at
Air
Delta
v.
in Shaw
explained
As
decade,
Supreme
another
For
pre-
Lines, Inc.,
[ERISA’s]
the “breadth
Shaw
followed
and this Court
sec- Court
apparent
reach
emptive
reach of
the broad
emphasized
85, 96,
repeatedly
103
463
language.”
tion’s
See,
Corp.
FMC
e.g.,
preemption.
(1983);
see id.
490
2890, 77 L.Ed.2d
52, 58, 111 S.Ct.
Holliday, 498 U.S.
used
(“Congress
S.Ct. 2890
at
(“The
pre-emption
112 L.Ed.2d
broad
in their
to’
...
‘relate
words
breadth.”);
for its
conspicuous
clause is
modern
sense.”).6
formulated
Shaw
Labor,
Dep’t
N.Y. State
Co. v.
Elec.
law is Gen.
a state
test:
preemption
Cir.1989) (“ERISA
(2d
was
with
has a connection
if “it [1]
preempted
preemptive
‘sweeping
to have
intended
Id.
plan.”
ERISA]
to [an
or [2] reference
field.’
added).
in the
effect
(emphases
96-97,
103 S.Ct.
occupy
intended ERISA
obvious
treated as
The Court
employee benefit
the field
regulate
with
dealing
“state laws
preempted
omitted)).
(citation
The threat
plans.”
by ERISA —re-
covered
subject matters
was
local
state and
conflicting
disclosure, fiduciary responsibili-
porting,
reason
paramount
as a
consistently cited
103 S.Ct.
like.”
ty, and the
intended
Preemption “was
preemption:
for
added).
was
question
open
(emphases
sponsors
to ensure
beyond these
went
whether
body of
uniform
subject
would
See
be
did.
areas,
held it
and the
core
Court
minimize the
law;
goal
was
benefits
one note
id. at
financial burden
to a
administrative
consigned
was
in Shaw
of caution
conflicting directives
with
complying
footnote:
supported
interpretation was
6. That
data
encouragement of state
5. The NHPRDA’s
applicable
generally
exemption
necessarily
ERISA’s
inconsistent
is not
collection
statutes,
exemption that
of data can
an
A
preemptive reach.
lot
state criminal
ERISA's
*8
providers, and
"applied
preemption
care
unnecessary
from health
if
be collected
would be
payers other than
care
with
dealing specifically
from health
laws
to state
compels the
Nothing
98,
in
NHPRDA
plans.
Shaw,
103
463 U.S. at
plans.”
that,
every indication
contrary to
conclusion
(discussing
U.S.C.
29
2890
S.Ct.
history,
intend-
text and
in ERISA’s
1144(b)(4)).
record-
multiplicity of state
a
ed to allow
self-
requirements for
keeping and
employee plans.
insured
505
among
States
between States and the
legislative history]
[The
recog-
reflects]
Federal Government.”
Ingersoll-Rand
nition of the administrative realities of
McClendon,
133, 142,
Co. v.
498 U.S.
111
benefit plans. An employer
478,112
(1990);
S.Ct.
474
makes a
L.Ed.2d
see
commitment
Fort
systematically
to pay
Packing
certain benefits
Coyne,
1,
Co. v.
a
482 U.S.
undertakes
host
Halifax
10,
obligations,
2211,
such
(1987)
107
as determining
96
1
L.Ed.2d
(“We
eligibility
claimants,
calculating
have not
bene-
to
hesitated
enforce
levels,
fit
making disbursements, moni-
ERISA’s pre-emption provision where
toring the availability of
funds
bene-
state law
prospect
created the
that an
payments,
fit
and keeping appropriate
employer’s administrative scheme would
records in
to comply
order
applica-
subject
be
conflicting requirements....
to
ble reporting requirements. The most
Such a
produce
situation would
considera-
way to meet
responsibili-
these
inefficiencies,
ble
efficient
which
employer
ties is to establish a
adminis-
might
to
by
choose
offset
uniform
lowering benefit
scheme,
trative
provides
which
a set of
levels.”); Howard v. Gleason Corp., 901
standard procedures
guide
to
processing
(2d
Cir.1990) (“[T]he
F.2d
1157
ex-
of claims and disbursement of benefits.
press pre-emption provisions of ERISA
Such
system
a
achieve,
is
to
difficult
deliberately
are
expansive,
designed
however,
a
plan
subject
if
pension
establish
plan regulation as exclu-
differing regulatory requirements
in
sively a federal concern in
order
afford
differing
States. A
would be re-
employers the advantages
a uniform
set
quired to
certain
keep
in
records
some
procedures
administrative
governed by
others;
States but
to make cer-
single
(citations
regulations.”
set of
tain benefits available in some States
omitted)).
internal quotation marks
others;
but not in
process
claims in a
These
specifically
cases
re-emphasized
way
certain
in some States but not in
that “reporting” and “disclosure” are core
others; and to comply with certain fidu-
subject
functions
to a uniform fed-
ciary standards in some States but not
eral
Ingersoll-Rand,
standard. See
498
in others.
(“[ERISA]
U.S. at
506 phrase if “were to”: the of reading in “relate amended that when of the furthest stretch taken to extend certain pre-emption exempt from “to 1983 practical for all indeterminacy, then Act,” not its it “did Hawaii of the provisions run its would never purposes pre-emption of portions those pre-emption exempt from disclosure, Id. course.” reporting, dealing with the law Fort Hali- requirements.” fiduciary light in two-part test Shaw Applying the 2211; 7, see S.Ct. n. 107 at 13 fax, 482 U.S. the conclud- Court principles, new of these 1982) (Dec. 21, 97-984, at 18 No. H.R.Rep. hospitals requiring that a state ed (“The continues Fed- provision (Conf.Rep.) cov- surcharge patients a to collect respect law of State eral not was commercial insurers by ered by reporting governed to matters 656, 1671. 115 S.Ct. id. at See preempted. responsibility fiduciary disclosure law is that state explained The Court ERISA....”). provisions employee ben- “mandate[s] if it preempted or their administration” structures
efit C mecha- enforcement alternative “provides] The 658, 1671. at 115 S.Ct. Id. nisms.” 1995 decision Court’s Supreme preémption surcharge law withstood state Blue in York State New Conference than it had no more in Travelers because Travelers v. Plans & Shield Cross Blue on influence” economic an “indirect pi of a something marked Insurance Co. “not bind admin- it did plans, See 514 U.S. preemption. in vot thus any particular choice istrators 695 1671, L.Ed.2d 645, 131 115 S.Ct. regulation of an function as (1995). the start began “with Court uniform itself,” “preclude not and it did does that Congress ing presumption provision or the practice administrative law,” if especially supplant intend if a package a uniform interstate tradi fields of in [occurs] the “state action Id. at 659- provide one.” plan wishes to care.8 health regulation,” like tional state 60,115 1671. S.Ct. preempt, To 1671. 115 S.Ct. Id. recognized the central again The Court by Con purpose” manifest a “clear and and disclosure: ERISA 655, roles 115 S.Ct. gress is required. of benefit administration “controls the Following presumption, on this 1671. reporting and dis- broad, by imposing literal its pulled back Court 1747, 806, 814, Fund, 801, 138 Co., U.S. 117 S.Ct. 520 U.S. 102 454 lud v. Oil Standard However, (internal (1981). marks quotation L.Ed.2d 75 L.Ed.2d summary However, affir omitted). precedential effect data collec- "the state health precise than mance no further regulate extends and effec- the safe laws do not tion necessarily decided presented and services, issues which is provision of health care tive Celebrezze, v. Anderson those actions.” police powers. among the states’ historic 75 L.Ed.2d 103 S.Ct. U.S. 784 n. hardly deemed collecting data can be And (1983) (internal quotation marks omit enacted such laws were "historic” —most ted). In years. See 368-74. ten J.A. within last event, repeatedly Supreme has Court presumption. See this The dissent relies on if the state presumption overcome found acknowledge Dissenting Op. at We 512-13. central "upset[] the deliberate balance applies when the state presumption that the ERISA,” "implement even if those laws has been tradi- "operates a field law lying the traditional policies and within values States,” that "the occupied by tionally Boggs, Boggs States.” domain State include police powers of the historic 833, 840, safety.” of matters health (1997). L.Ed.2d 45 Servs. Med. & Clinical De Buono v. NYSA-ILA
507
651,
closure mandates.”
Id. at
115 S.Ct.
The use
preemption
to avoid
added) (citation omitted).
1671 (emphasis
proliferation of state administrative re
“Congress’s extension
pre-emption
to all gimes also remains a vital feature of the
state
relating
laws
to benefit plans was
law. “[D]iffering
regulations
state
affect
meant to sweep
broadly
more
than state
ing an
plan’s system
ERISA
for process
dealing
subject
with the
matters cov-
ing
paying
claims and
impose
benefits
ERISA,
disclosure,
ered
reporting,
fi- precisely the burden that ERISA pre-emp
duciary responsibility, and the like.” Id.
tion was intended to avoid.” Egelhoff v.
661,
added)
Applying
Romney
(2d
v.
74,
cases con
94 F.3d
80
Cir.
1996) (“basic
clude that
having
state laws
only an “indi
purpose” of
preemp
ERISA
rect economic effect on
plans”
lack tion is to “avoid a multiplicity
sufficient “connection with” or “reference
in order
permit
the nationally uniform
to” an
“trigger
ERISA administration of employee
plans”).
preemption.” New England Health Care
It is true that this Court’s three most
Emps. Union v. Mount Sinai
65
Hosp.,
recent cases focus primarily on “the rela-
1024,
(2d
F.3d
Cir.1995);
1030-33
see also
tionships among
entities,”
the core ERISA
De Buono v. NYSA-ILA Med. & Clinical
against
caution
general-
Fund,
806, 809,
Sews.
520 U.S.
117 S.Ct.
ly applicable state laws. See Stevenson v.
1747,
(1997) (state
slight” to” “reference (though uniform no. of a ERISA adoption employer’s an as them9) preempted scheme,” Burgio are therefore and administration benefit by the supported Dep’t holding is v. NYS applied. Inc. Our Campofelice, & Cir.1997) (2d Travelers) 1000, that (undisturbed Labor, 1009 F.3d 107 principle omitted); or (internal marks function quotation core ERISA is a “reporting” inconsistent potentially from shielded readily ob- information “sought regulation.10 state burdensome employer” without an from tainable form record- particular “a specifying laws “state preempts ERISA Sys., Inc. HMI Mech.
keeping,” covered (2d subject matters 142, dealing with McGowan, Cir. 150-61 266 F.3d disclosure, fiducia ERISA—reporting, by 2001). Shaw, like.” and the ry responsibility, the intact effect, cases adhere these In (emphases 2890 at 103 S.Ct. 463 U.S. against principle pre-Travelers necessarily a added). is “[Reporting” to an impediment no “creating] that the disclosure from distinct function a uniform benefit adoption of employer’s beneficiaries; oth provide administrators scheme,” Halifax, 482 Fort administration by subsumed would be “reporting” erwise “too and with 14, 107 S.Ct. at U.S. superfluous. rendered “disclosure” remote, an effect tenuous, peripheral” Shaw, Rather, what Vermont “reporting” entails 463 U.S. plans, benefit employee on done; record-keeping, HMI plan 2890. Thus be requires n.' 103 S.Ct. at 100 heavily) cau- (which third-party. relies a filing with indeed would subpoenas tioned that they seek scope plan that to the “overbroad extent But whatever
be
re-
employees
that
deny
of benefits
the amount
cannot
“reporting,”
employer contribu-
“examin[e]
ceive” or
relevant
seeking. The
it is
that is what
HMI,
basis.”
by
a
benefit
tions on benefit
Health
called the “Vermont
database
at 151.
266 F.3d
Eval
Reporting
care Claims Uniform
section
operative
System” and
uation
D
Re
“Reporting
titled
regulation is
of the
11 Regulation H-2008-01
quirements.”
re
hold that
We
added).
3(Ar),
(emphases
4
§§
statute
of the Vermont
quirements
provisions
law
(holding
preempts state
regulation lack
The Vermont statute
9.
pharmaceutical
they apply
ato
they
plan
"insofar
because
to" an ERISA
"reference
with an
manager
under contract
...
act
payers and do not
benefits
apply
all health care
(EBP)
they 're-
because
Dilling
plans.”
upon
"exclusively
EBP”).
832;
agree
the D.C.
We
an
ham,
late to'
Travel
at
uniformity in
objective of
“the
ers,
"con
Circuit
A See quick overview of the Reporting Sys- Regulation 5(A)(5)(a). § H-2008-01 tem is telling: Sixteen source systems code (cid:127) are Plans must periodically report: provided, including the “Admission (1) “medical claims data” “composed of (“[a] Source Code” variety of codes service level remittance information for explaining who recommended admis- all non-denied adjudicated claims for sion to a facility”) medical and the each billed including, service but not “International Classification of Dis- limited to member demographics, pro- eases, Revision, 9th Clinical Modifi- information, vider charge/payment infor- (“describes cation” code the classifi- mation, and clinical diagnosis proce- and cation of morbidity and mortality codes, dure and ... including] all claims information for statistical purposes related to behavioral or health”; mental and for the indexing of hospital (2) “pharmacy data” claims “containing by records operations”). disease and service level remittance information Id. Appendix A. from all adjudicated non-denied claims for each prescription but (cid:127) including, not elements, “Individual data types, data limited to: member demographies^] lengths, field description/code field as- provider charge/payment information^] signments, and mapping locators” for and codes”; national drug information!]] each file must conform to specified (3) “member eligibility data” “containing requirements. 5(B). § Id. in- Fields demographic information for each indi- clude “Admission Hour” and “Dis- vidual member eligible for medical or charge Hour,” “Diagnosis” thirteen preempt.” Dissenting Op. at 511. But the ERISA’s uniform reporting regime, federal conclusion does not premise. follow from the seeking data, and different and additional contrary: To the A hodge-podge state re- exactly the threat pre- motivates laws, porting each more emption. onerous than city and the member’s elements, include fields, and “Procedure”
fields, three discharge and code, the admission zip Dis- “Quantity and Name” “Drug provid- hours, service dates C-l-E-2. Appendices pensed”. names. pharmacy er and security number (cid:127) social “[T]he and the subscriber Elements”: (3)“Unrestricted member/subscriber Data encrypt- must be names” and member public use general “available “utilizing submission prior ed request.” written upon release.... methodology pro- encryption elements, standard available publicly These 5(A)(5)(b). (Encryption vided.” Id. from can be derived information fields.) data for other required the member’s elements, include these coverage, prescrip- Department medical prevents age, nothing gender, And diagnosis; requirements coverage, myriad drug these changing tion from provid- Depart- time, long as the so service procedure; type time code; zip mandate the broad complies speciality er’s ment *13 drugs prescribed. price and name the statute. of the confidentiality provisions The Specific J-l-J-14. Appendices § 8 & Id. loose, complex but are scheme are, may be illuso- they categories as these least) the obli- (at reassign impair or and pub- can ease Department the ry, because keep med- documents in the Plan gation is cur- on data restrictions lic release confidential, well as as strictly records ical unavailable, long as so rently restricted TPA to by Blue Cross as undertaking the pub- are not identifiers personal “direct” Plan administra- solely for information use (in Department’s is the data lished and unauthorized prevent and purposes tion manner.” in an “ethical handled opinion) specifically The disclosure.12 9410(e)-(f), 18, § tit. Ann. Vt. Stat. claims health care “access to contemplates (h)(3)(D). by “per- information” and related sets data own their impose can states other Since § 8. Department.” than sons other many do— reporting for regimes —and into one is classified field data Each multi- be risks must these burdens categories: release” “use and three plied. not (1) Elements”: Data “Unavailable narrowing ERISA release. toward use and The general trend for available ERISA’s allow one of does not preemption (2) Elements”: Data “Restricted laden be reporting—to core of a part and release use available for functions — incompatible, burdens, subjected with Health Care Research “Limited Use demands, variable multiple by the De- approved Set” Data Claims fines, duty, risk breach freighted with elements, and infor- These partment. expense.13 legal these can be derived mation claims, concludes and benefits” plans, author- to Vermont Whether disclosure not does doctrine may turn on Plan documents ized under the authorization, implicate reporting law creates laws that whether reach state comply with Essentially, undertakes Plan Op. Dissenting because at 516. former. law; only "to compliance is allowed but preempt state would dissent ERISA," a limi- preempted extent fi- plans to submit require they only if in a the TPA Plan and that leaves tation view of dissent's statements. nancial legal expensive muddle. complex and “report- plan “administration” unduly ing” narrow. between a "distinction draws 13. The dissent administration general administration CONCLUSION reporting requirements pose the sort of threat to “the nationally uniform adminis For foregoing reasons, we reverse tration of employee benefit plans” that and remand with to enter instructions would trigger preemption. N.Y. State judgment Mutual. Blue Cross & Blue Shield Conference of Judge STRAUB dissents in part and Co., Plans v. Travelers Ins. in part
concurs
in a separate opinion.
657, 115
I respectfully dissent in part and concur plans, as we must in order to part. determine whether the statute has im- an I concur with I part of the discussion proper “connection with” I section of the majority opinion finding that conclude that this is not type of statute Liberty Mutual has standing. For the that Congress intended preempt. follow, reasons that I dissent from the majority’s holding that the Vermont stat- ANALYSIS
ute is preempted by ERISA. The majority finds that the im- burden preemption clause of the ERISA posed by the Vermont reporting require- statute provides that, certain excep- ment warrants preemption of the statute. tions not here, *14 relevant ERISA “shall su- This conclusion falters for primary persede two any and all State laws insofar as First, reasons. reporting requirement the they may now or hereafter relate to any imposed by the Vermont statute differs in employee plan.” 29 U.S.C. kind from the “reporting” 1144(a). that required § Supreme The Court has stated by ERISA and therefore was not the kind that the “basic thrust of the preemption of state Congress law intended preempt. to clause ... was to a multiplicity avoid of Second, Liberty Mutual has failed to regulation show in order to permit the nationally burden, actual much less a burden uniform administration of employee benefit triggers that ERISA preemption. Rather, plans.” Travelers, 514 U.S. at statute, the Vermont like others we have S.Ct. 1671. “Pre-emption occur, does not previously upheld, does not however, interfere with if the state has law a ‘tenu- an plan’s ous, administration of bene- remote, or peripheral’ connection with reasons, fits. For these our precedent and covered plans, as is the case many with that of the Supreme Court do not support general laws of applicability.” & Burgio the conclusion that the Vermont statute’s Campofelice, Inc. v. N.Y. State Dep’t of (set requirements The overview of participants out and beneficiaries and ... for the above) makes that requires clear Vermont purpose exclusive of ... providing benefits to record, plans format, to specified participants beneficiaries; and their and ... massive amounts of claims defraying information and to expenses reasonable of administer- report that parties, to information third ing plan[.]”). creat- the Modest financial burdens ing (and significant obvious) privacy may risks and be tolerable when impos- the state laws financial burdens passed that will be ing them directly implicate do not an ERISA
TPA to the Plan and from the Plan to the
core administrative concern. But the statute
beneficiaries. That is not a proper allocation
require
here
reporting of
plan
of
assets.
1104(a)(1)(A)
See 29
claims,
U.S.C.
claims, etc.,
health
pharmacy
informa-
("[A] fiduciary
discharge
shall
his duties with
tion about the essential functioning
em-
respect
to a
solely in the
ployee
interest
plans.
health
is no
there
on which
Cir.1997)
an issue
(2d
impacted,
1000, 1008
Labor, 107 F.3d
omitted)
showing.
(quot-
(internal
marks
quotations
Inc.,
Lines,
463 U.S.
Air
v. Delta
ing Shaw
Regulation of
Traditional State
A.
2890, 77 L.Ed.2d
103 S.Ct.
100 n.
Presumption
and the
Health Care
(1983)).
Preemption
Against
to
relate
laws
state
kinds of
“Two
in a foot-
finding, hidden
majority’s
The
those
preemption:
purposes
against pre-
note,
presumption
that
structures
employee benefit
mandate
that
here,
flies in
apply
does not
emption
pro-
administration,
those that
or their
precedent
Supreme
clear
Court
face
mechanisms.”
enforcement
alternative
vide
“presump-
begin
us
instructing
to
McGowan, 266
Inc. v.
Sys.,
Meek
HMI
sup-
intend
does not
Congress
that
Cir.2001) (internal
tion
(2d
quota-
142,149
F.3d
Travelers,
omitted).
state law.”
plant
brackets
marks and
tion
cases like
“[I]n
have
We
neither.
does
statute
bar
is said to
federal law
one where
this
find
“reluctant
are
that courts
noted
state
traditional
fields of
action in
state
preempt
intended
that
as-
on the
have worked
we
regulation,
relationships
affect the
do not
powers
police
historic
sumption
benefi-
ERISA entities:
“the
among”
core
superseded
not to be
were
the States
administrators, em-
ciaries, participants,
the clear
that was
unless
Federal Act
fiduciaries,
and other
ployers, trustees
Congress.” Id.
purpose
manifest
Co., and
v. Savasta &
itself.” Gerosa
(internal
citations
655,
that the presumption applies here. Objectives of ERISA B. There is No Improper “Connec- objectives of the ERISA statute are tion With” ERISA Plans not in dispute. Congress “enacted ERISA
When analyzing whether ERISA in 1974 to respond to growing concerns preempts a law, we apply the two- about the risk employers defaulting on pronged test, Shaw narrowed Trav- pension plans, which were increasingly presumption elers’ against preemption. widespread but regulated.” little See Mal- test, Under analyze we whether lory Jensen, Is ERISA Super- Preemption state law has an impermissible “connection In Age the New Health Care fluous with” or “reference to” an plan. Reform?, 2011 Colum. Bus. L.Rev. See, e.g., Hattem v. Schwarzenegger, 449 (2011) (internal omitted); footnotes see *16 (2d Cir.2006). Despite pay- also Brendan S. Stris, Maher and Peter K. ing lip service to the test, major- Shaw the ERISA and Uncertainty, 88 Wash. ity a eschews full analysis in favor of a (2010) (“Few U.L.Rev. 440 n. 29 dis- talismanic recitation the “report- of word pute that statute passed, the was in part, ing.” response a to several high-profile pen- I agree with majority the that because sion defaults that arose from company fail- the requires statute data collec- that ures devastated the pensions many of tion from entities other than workers.”) plans, ERISA (citing Wooten, J.A. The Most such as hospitals, insurers, health and Story Glorious Failure in the Business: of pharmacy benefit managers, it “functions The Corp. Studebaker-Packard & the Ori- irrespective of the existence of an gins ERISA Buff. L.Rev. 683- of plan” and therefore (2001)). does not make an im- 84 Indeed, the statute itself de- goes to that information report must ERISA, Congress that, in passing
dares plan. integrity of financial to sought in- and the commerce interstate protect that, as recognize to important It is employee bene- in participants terests of argument at oral conceded Liberty Mutual beneficiaries, by re- their and plans fit required (Tr. 9), “reporting” to reporting and the disclosure quiring report- from the wholly distinct ERISA is of finan- beneficiaries and participants majority As the sought by Vermont. ing respect with other information cial and stat- depth, the Vermont in some describes establishing standards thereto, by claims on medical information ute seeks obligation and conduct, responsibility, provided have been data, that the services employee benefit fiduciaries for for beneficiaries, payments and charges to reme- appropriate for by providing and informa- services, demographic and those to the sanctions, ready access dies, coverage. receiving the those tion about courts. Federal 508-10) bottom, the state At (Maj. atOp. 1001(b).1 § 29 U.S.C. it needs the information seeks collect in the reflected objectives are These to its health providing fulfill its role require- disclosure reporting and informa- does not seek citizens. Vermont the mis- ments, are concerned which assets, review does tion on pay and failure of funds management benefits, see or denial the allocation information benefits, seek R. H-2008-01, 21-040-021 Vt.Code Reg. 29 U.S.C. See or allocation. assets 5A(8) (“Denied be excluded claims shall § re- annual (requiring publication § 1023 file claims pharmacy from all medical financial statement to include port submissions”), on which the topics liabilities, bal- changes in fund assets and Indeed, Secretary of reports. requires in made changes ance, about disclosures re- reporting Labor, oversees who commitments, in- financial plan, enforc- responsible is quirements transactions, and loans, leases, and cluding ERISA, I Title administering ing and statement). lan- plain an actuarial purpose focus and that the us has advised require- reporting of the guage different collection data of Vermont’s to the they are limited ments shows requirements reporting from the description summary plan of a furnishing Secretary of Labor See Amicus ERISA. report and an annual plan participants Br. at 12. §§ 1021- Secretary. 29 U.S.C. See to the objectives and This between contrast essentially plain-En- former BO. The of ERISA terms, requirements id. key plan summary of glish suggests those of the Vermont concerned the latter is §§ while type not of statute is plan, soundness of financial with the preempt. intended ERISA, Thus, under id. Coyne, Packing Rep- Co. noted that Supreme has also Court 1. The Cong. (quoting 120 96 L.Ed.2d Dent, sponsor of the the House resentative (1974)). "Senator and 29935 Rec. 29197 *17 fiducia- "represented that ERISA’s legislation, Williams, that sponsor, stated the Senate spe- prevent 'will abuses ry standards safeguard fiduciary would standards dealing these borne those responsibilities cial ” self-dealing, abuses employees from ‘such and that "disclosure plans,’ misappropriation investing, and imprudent par- both 'will enable requirements ” Cong. Rec. (quoting funds.' to Government the Federal ticipants and ” 29932). Fort operations.’ plans’ monitor Halifax 2. Effect of the Vermont Statute an indirect economic impact is sufficient to
on ERISA Plans
trigger preemption only if it “produce[s]
acute,
such
indirect,
albeit
economic effects
We look next to the effect of the Ver-
as to force an
ERISA
to adopt a
mont statute on
plans.
The Ver-
certain scheme of substantive coverage or
mont statute asks for after-the-fact
infor-
effectively restrict
its choice of insurers.”
mation which plan administrators, such as
Travelers,
516
com-
requires
that
law,
a law
or
ing wage
(Maj.
requirements.
record-keeping
state
Such
data.
employment
report
to
panies
a pre-
505)
involved
Fort
atOp.
Halifax
costs,
re-
additional
may impose
re-
statute
a Maine
challenge to
emption
resources.
administrative
additional
quire
a one-time
provide
employer
an
quiring
impact how
these laws
under
none of
employees
But
payment
benefits
severance
and,
at
107
U.S.
are administered
482
circumstances.
certain
beneficiaries
by
therefore,
preempted
that
not
they
found
are
Supreme Court
2211. The
S.Ct.
at
519 U.S.
See,
Dillingham,
e.g.,
employee benefits
regulated
ERISA.
statute
the
(upholding
an em-
California
832
or establish
117 S.Ct.
regulate
did not
but
HMI,
at
F.3d
law);
not
266
wage
and thus was
“plan,”
prevailing
benefit
ployee
wage
prevailing
107
Id. at
York
ERISA.
New
by
(upholding
preempted
(same).
at
law); Burgio,
2211.
S.Ct.
a
whether
focus on
for our
reason
The
on which
in Fort
The dicta
Halifax
relationships
affects
statute
state
weight
bear
does not
majority relies
benefi-
ERISA entities:
“the core
among
To the extent
upon it.
places
majority
administrators, em-
ciaries, participants,
law
a
that
suggests
Fort Halifax
fiduciaries,” see
and other
trustees
ployers,
keep
plan to
an ERISA
require
not
may
Gerosa,
is because
at
329 F.3d
that
keep,
not otherwise
it would
records
the administra-
whether
is about
concern
here. The Ver-
implicated
is not
concern
is affected.
tion
beneficiaries
of benefits
plan admin-
require
not
does
mont statute
this distinction
majority ignores
records, it mere-
any
keep
new
istrators to
weigh-
burdens as
all administrative
treats
are
records that
to the
ly seeks access
preemption.
ing
favor
say
does
kept. Fort
already
Halifax
may
how a state
when or
anything about
any im
separating
importance
records.
to existent
demand access
of benefits
on the administration
pact
Moreover,
in Fort
language
Halifax
upon
administrative
general
impact
realities
the “administrative
describing
Egelhoff v.
clearly articulated in
concern is
not relate
plans,” does
benefit
employment
Breiner,
a
involved
which
ex rel.
Egelhoff
concerns,
rather
but
to all administrative
providing
Washington state
concern
repeatedly articulated
to the
the benefi
spouse
a
designation of
“the
administra-
“nationally uniform
there be
is revoked
asset
nonprobate
of a
ciary
Travel-
plans.”
tion
at
532 U.S.
divorce.”
automatically upon
(em-
ers,
S.Ct.
at
There,
Supreme
143, 121
added).
Halifax, 482 U.S.
See Fort
phasis
state laws
while “all
stated
Court
it most
(suggesting
at
107 S.Ct.
unifor
lack of
for a
potential
some
create
ad-
“a uniform
to have
efficient for
whether
specifically
was
mity,” the concern
a set
scheme,
provides
which
ministrative
an
affect[ ]
regulations
“differing state
processing
guide
procedures
of standard
processing
‘system
plan’s
”
disbursement
claims
benefits.”
benefits.’
paying
claims
added)).
(emphasis
Halifax, 482
Fort
1322 (quoting
121 S.Ct.
2211). The Court
10, general admin-
between
The distinction
at issue
Washington statute
that the
noted
and administration
istration
nationally
plan
uniform
Many “interfere[d]
important.
claims,
benefits is
could
administration,” as administrators
impact
have an
may
state laws
identifying
simply by
payments
not “make
ex-
of an ERISA
administration
—for
docu-
beneficiary
law,
specified
safety
prevail-
work-place
ample,
*19
ments” but
instead had to “familiarize See Burgio, 107
1009;
F.3d at
HMI, 266
themselves with state statutes so
they
151;
F.3d at
N.Y. Lab.
Law 220.
In
c[ould] determine whether the
HMI,
named ben-
we noted that although there were
eficiary’s status has been
by op-
‘revoked’
indirect effects on ERISA plans, such as
eration of
law.” Id. at
“eliminating incentives for them to pool
1822. In clear contrast to Egelhoff, there
supplement contributions,” the state’s in-
argument
is no
here that
the Vermont
quiry did not
particular
“mandat[e]
bene-
statute
affects
Mutual’s “system fit structure for ERISA plans,” “require
for processing claims and paying benefits.”
employers or
plans
provide
spe-
(internal
information from
for its own
purposes without triggering preemption so
Reporting
C.
Requirements Upheld
long as
request
for information “cre-
in HMI and Burgio
ates
impediment
no
to an employer’s adop-
Using this same analysis, we twice con-
tion of a uniform benefit administration
cluded that ERISA did not preempt
scheme,” Burgio,
fits Likewise, majori- preemption. require- that statement
ty’s (Maj. risky” “time-consuming ment Jr., BARLOW, George H. relevant 509) considered if atOp. —even Plaintiff-Appellant, nothing more precedent our under —is is no evi- There speculation. pure than finding. such support to dence Liberty CORP., MARITIME LIBERTY Liberty Sun Corp., Shipping
Star L.P., Group Liberty Shipping Corp., CONCLUSION LLC, per in Group Liberty Shipping that language then, to the Returning, Sun, Liberty Her En sonam, The M/V de- our decision inquiry, our guide must rem., in Equipment, gines, Tackle of the objectives on pends Defendants-Appellees. law on state the effect statute 13-0254-cv. No. Docket intend- Although plans. to establish ed Appeals, Court States United exclusively con- federal as an plans Circuit. Second care health intend cern, it not did 15, 2013. Nov. Argued: Fed- of the purview exclusive become Rather, anticipated it Government. eral 4, 2014. March Decided: in- be continue would States that care services health providing volved citizens.
their overcome the fails Mutual against preemption.
presumption health regulates statute purely state, imposing while
within that I ac- plans.
clerical burden may not
knowledge because law, type of this
be may need by ERISA governed formats. in different records their
provide a find- support does not case
But our law In- preemption. this warrants
ing economic an uniformly that
deed, says it general aby imposed
burden affect which does
applicability, or how receive beneficiaries
benefits them, permissible.
they receive