Amicus Curiae Brief — UnitedHealthcare Insurance Company, a Connecticut Corporation, et al., Petitioners v. Fremont Emergency Services (Mandavia), Ltd., a Nevada Professional Corporation, et al.

No. 25-452

IN THE

Supreme Court of the United States

___________________

UNITEDHEALTHCARE INSURANCE COMPANY, ET AL.,

Petitioners,

v.

FREMONT EMERGENCY SERVICES (MANDAVIA), LTD.,

ET AL.,

Respondents.

___________________

On Petition For A Writ Of Certiorari

To The Supreme Court Of The State Of Nevada

___________________

BRIEF OF THE AMERICAN BENEFITS

COUNCIL, THE ERISA INDUSTRY

COMMITTEE, AMERICA’S HEALTH

INSURANCE PLANS, INC., AND THE NEVADA

ASSOCIATION OF HEALTH PLANS

AS AMICI CURIAE IN SUPPORT OF

PETITIONERS

___________________

Matthew S. Rozen

Heather L. Richardson

GIBSON, DUNN & CRUTCHER LLP Counsel of Record

Robert A. Batista

333 South Grand Avenue

Christian L. Conway

Los Angeles, CA 90071

GIBSON, DUNN & CRUTCHER LLP

1700 M Street, N.W.

Washington, D.C. 20036

(202) 955-8500

MRozen@gibsondunn.com

Counsel for Amici Curiae

TABLE OF CONTENTS

Page

--INTEREST OF AMICI CURIAE ................................ 1

SUMMARY OF ARGUMENT ..................................... 3

ARGUMENT ............................................................... 6

I.

The Allocation Of Costs Set Forth In A

Health Plan Is An Essential Feature Of Plan

Design .................................................................. 6

II. The Reading Of Rutledge That Some Courts

Have Adopted Undermines Plan Network

Design And ERISA ........................................... 11

III. Rutledge Was A Narrow Decision That In No

Way Endorses A Dismantling Of ERISACovered Employer-Sponsored Benefits ........... 17

CONCLUSION .......................................................... 24

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Access Mediquip L.L.C. v. UnitedHealthcare

Ins. Co.,

662 F.3d 376 (5th Cir. 2011) ............................. 19

Am. Orthopedic & Sports Med. v. Indep.

Blue Cross Blue Shield,

890 F.3d 445 (3d Cir. 2018) .............................. 16

Am.’s Health Ins. Plans v. Hudgens,

742 F.3d 1319 (11th Cir. 2014) ..................... 7, 22

AMISUB (SFH), Inc. v. Cigna Health & Life

Ins. Co.,

681 F. Supp. 3d 842 (W.D. Tenn. 2023) ........... 12

Black & Decker Disability Plan v. Nord,

538 U.S. 822 (2003) ......................................... 4, 7

Cal. Div. of Labor Standards Enf’t v.

Dillingham Constr., N.A., Inc.,

519 U.S. 316 (1997) ........................................... 22

Conkright v. Frommert,

559 U.S. 506 (2010) ................................. 3, 11, 15

De Buono v. NYSA-ILA Med. & Clinical

Servs. Fund,

520 U.S. 806 (1997) ..................................... 18, 22

Egelhoff v. Egelhoff ex rel. Breiner,

532 U.S. 141 (2001) ..................................... 11, 17

iii

Epic Reference Labs v. Cigna,

2021 WL 4502836

(D. Conn. Sept. 30, 2021) .................................. 13

Firestone Tire & Rubber Co. v. Bruch,

489 U.S. 101 (1989) ........................................... 15

Fla. Emergency Physicians Kang & Assocs.,

M.D., Inc. v. United Healthcare

of Fla., Inc.,

526 F. Supp. 3d 1282

(S.D. Fla. 2021) ..................................... 12, 13, 19

Gobeille v. Liberty Mut. Ins. Co.,

577 U.S. 312 (2016) ..................................... 17, 18

Heimeshoff v. Hartford Life & Acc. Ins. Co.,

571 U.S. 99 (2013) ....................................... 16, 23

Kennedy v. Conn. Gen. Life Ins. Co.,

924 F.2d 698 (7th Cir. 1991) ............................. 10

Ky. Ass’n of Health Plans, Inc. v. Miller,

538 U.S. 329 (2003) ............................................. 8

Lockheed Corp. v. Spink,

517 U.S. 882 (1996) ............................................. 3

Molina Healthcare of Tex., Inc. v. ACS

Primary Care Physicians Sw., PA,

2024 WL 3608192

(Tex. App. Aug. 1, 2024).................................... 12

N. Cypress Med. Ctr. Operating Co., Ltd. v.

Aetna Life Ins. Co.,

898 F.3d 461 (5th Cir. 2018) ..................... 7, 9, 15

iv

N.Y. State Conf. of Blue Cross & Blue

Shield Plans v. Travelers Ins. Co.,

514 U.S. 645 (1995) ........................... 5, 13, 19, 21

Plastic Surgery Ctr., P.A. v. Aetna Life Ins.

Co.,

967 F.3d 218 (3d Cir. 2020) ........................ 16, 19

Rutledge v. PCMA,

592 U.S. 80 (2020) ................... 5, 6, 13, 20, 21, 22

Shaw v. Delta Air Lines, Inc.,

463 U.S. 85 (1983) ............................................. 17

Turkiye Halk Bankasi A.S. v. United States,

598 U.S. 264 (2023) ........................................... 21

United Healthcare Servs., Inc. v. Hosp.

Physician Servs. Se., P.C.,

2024 WL 3852337

(N.D. Ga. Aug. 16, 2024) ....................... 12, 13, 14

Vanguard Plastic Surgery, PLLC v. United

Health Grp. Inc.,

2021 WL 4651504

(S.D. Fla. Sept. 21, 2021) .................................. 13

Ware v. Hylton,

3 U.S. (3 Dall.) 199 (1796) ................................ 18

Statutes

29 U.S.C. § 1102(a)(1) ............................................ 18

29 U.S.C. § 1102(b)(4) ................................ 11, 18, 23

29 U.S.C. § 1104(a)(1)(D) ....................................... 18

v

29 U.S.C. § 1132(a)(1)(B) ................................. 15, 16

29 U.S.C. § 1144(a) ............................................. 4, 17

Other Authorities

J. Scott Andresen, Is Utilization Review the

Practice of Medicine? Implications for

Managed Care Administrators,

19 J. Legal Med. 431 (1998) ................................ 6

Karen A. Jordan, Managed Competition and

Limited Choice of Providers: Countering

Negative Perceptions Through a

Responsibility to Select Quality Network

Physicians,

27 Ariz. St. L.J. 875 (1995) ................................. 8

Olena Mazurenko et al., The Impact of

Narrow and Tiered Networks on Costs,

Access, Quality, and Patient Steering: A

Systematic Review,

79 Med. Care Rsch. & Rev. 607 (2022) ............... 8

Daniel Polsky, Provider Networks and

Health Plan Premium Variation,

56 Health Serv. Rsch. 16 (2021) ......................... 9

Brendan Rabideau et al., Effects of

Employer-Offered High-Deductible Plans

on Low-Value Spending in the Privately

Insured Population,

76 J. Health Econ. 1 (2021) .............................. 10

vi

John L. Utz, Network Viability and the

Emboldened Out-of-Network Provider,

23 No. 2 ERISA Litig. Rep. 11 (2015)................. 9

Eline M. van den Broek-Altenburg & Adam

J. Atherly, The Relation Between

Selective Contracting and Healthcare

Expenditures in Private Health

Insurance Plans in the United States,

124 Health Pol’y 174 (2020) ............................ 8, 9

INTEREST OF AMICI CURIAE1

The American Benefits Council (the “Council”) is

a national non-profit organization dedicated to

protecting and fostering employer-sponsored benefit

plans. The Council advocates for employers dedicated

to the achievement of best-in-class solutions that

protect and encourage the health and financial wellbeing of their workers, retirees, and families. Council

members include over 220 of the world’s largest

corporations and collectively either directly sponsor or

administer health and retirement benefits for

virtually all Americans covered by employersponsored plans.

The ERISA Industry Committee (“ERIC”) is a

national non-profit business trade association

representing approximately 100 of the nation’s largest

employers in their capacity as sponsors of employee

benefit plans for their workers, retirees, and families.

America’s Health Insurance Plans, Inc. (“AHIP”)

is the national trade association representing the

health insurance industry. AHIP is committed to

market-based

solutions

and

public-private

partnerships that make high-quality coverage and

care more affordable, accessible, and equitable for

everyone.

AHIP’s members offer health and

supplemental benefits through employer-provided

coverage, the individual insurance market, and public

1

Pursuant to Supreme Court Rule 37.6, counsel for amici

states that no counsel for a party authored this brief in whole or

in part, and that none of the parties or their counsel, nor any

other person or entity other than amici, their members, or their

counsel, made a monetary contribution intended to fund the

preparation or submission of this brief. Pursuant to Supreme

Court Rule 37.2, counsel for amici timely notified counsel for the

parties of the intent to file this brief.

2

programs such as Medicare and Medicaid. Combined,

AHIP’s members provide healthcare coverage,

services, and solutions to more than 200 million

Americans. That experience gives AHIP broad firsthand knowledge and a deep understanding of how the

nation’s healthcare and health insurance systems

work.

The Nevada Association of Health Plans

(“NvAHP”) is a trade association for its member

companies providing commercial health insurance

and government programs to Nevadans. NvAHP’s

primary goal is to create a statutory and regulatory

environment that permits Nevada’s health insurance

plans to meet the needs of consumers, employers, and

public purchasers.

NvAHP is a unified voice

advocating for issues important to Nevada’s health

plans. In addition, its mission is to ensure the growth

and development of a high-quality, affordable

healthcare delivery system for Nevadans that

emphasizes prevention and strong patient-provider

relationships.

The Council, ERIC, AHIP, and NvAHP regularly

participate as amici in cases, like this one, that will

have far-reaching effects on the design and

administration of employee benefit plans governed by

the Employee Retirement Income Security Act of 1974

(“ERISA”). Those cases frequently include ERISA

preemption cases. E.g., Rutledge v. PCMA, No. 18540 (U.S. Apr. 1, 2020); Gobeille v. Liberty Mut. Ins.

Co., No. 14-181 (U.S. Oct. 20, 2015). NvAHP also

participated as an amicus in the proceedings below.

Amici support United’s petition for certiorari

because it presents a question of profound nationwide

importance that has divided federal and state

appellate courts. Healthcare providers have filed a

3

growing number of suits asserting that ERISA’s

express-preemption provision, Section 514(a), does

not preempt state-law causes of action that force

ERISA plans to reimburse out-of-network healthcare

providers at a rate different from the rate specified in

the terms of the governing plans. Some courts have

embraced that position. These misguided decisions

threaten significant disruption to America’s

employer-sponsored health benefits system, which

has for decades delivered high-quality, affordable

healthcare to many millions of employees and their

families.

Plan terms governing maximum covered charges

for out-of-network services—and the corresponding

cost-sharing requirements for plan members—are an

essential feature of employer-sponsored health

benefits. Those terms encourage providers to join

networks, and those networks in turn are designed to

ensure that plan beneficiaries receive safe and costeffective care. If providers can use state law to negate

the plan terms that hold these networks together—a

litigation strategy that the decision below endorses—

the quality of healthcare will decline and costs and

premiums will increase. Preventing those outcomes

and protecting employers’ ability to offer high-value,

affordable healthcare is critically important to amici

and their members.

SUMMARY OF ARGUMENT

“Nothing in ERISA requires employers to

establish employee benefits plans.” Lockheed Corp. v.

Spink, 517 U.S. 882, 887 (1996). Instead, ERISA

offers numerous protections that are designed to

encourage employers to offer those plans. Conkright

v. Frommert, 559 U.S. 506, 517 (2010). One of the

most important protections is ERISA Section 514(a),

4

which broadly preempts “any and all State laws”—

including state-law causes of action—that “relate to”

employee benefit plans. 29 U.S.C. § 1144(a). This

provision and other features of ERISA are designed to

give employers “large leeway to design … plans as

they see fit.” Black & Decker Disability Plan v. Nord,

538 U.S. 822, 833 (2003).

Because of these guarantees, many employers

voluntarily offer health benefit plans to attract and

retain talented, healthy workers. Employers carefully

design these plans with the goal of delivering highquality, affordable care.

A critical plan-design

element is the provider network, which consists of

healthcare providers that have contracted with the

plan to offer services to plan members at lower rates

than those providers charge others. Plans set high

standards for these networks to ensure that innetwork providers are delivering care that is safe and

effective.

To maintain these provider networks, employer

plans need to encourage plan members to choose innetwork providers—otherwise providers would have

no incentive to join networks. One important way

plans do this is by having members contribute a

greater portion of the provider’s charges when they

choose to seek out-of-network treatment. Members

pay higher cost-sharing amounts for such treatment.

And plans typically limit the “allowed” amount they

agree to cover for given out-of-network services. Plan

members thus have a powerful incentive to use innetwork providers, rather than out-of-network

providers who may bill them for excessive charges

that could exceed the amounts allowed by their plans.

Collectively, these cost-related terms are essential to

5

provider networks and the delivery of high-value care.

They are also a foundational feature of ERISA plans.

Given the centrality of these plan terms, it should

not be controversial that ERISA preempts state-law

causes of action that seek to override them.

Respondents’ unjust enrichment claim sought exactly

that: to extract from the plans (through their claims

administrator) higher amounts than the plans were

obligated to pay to Respondents under plan terms.

And Respondents succeeded: The jury awarded them

$2.65 million more than plan terms required the plans

to pay for the relevant treatment. Pet. App. 7a.

The Nevada Supreme Court nonetheless

concluded that ERISA does not preempt this stark

displacement of plan terms—and interference with

critical aspects of plan design. It thus joined other

state and federal courts that have misread this

Court’s decisions in New York State Conference of Blue

Cross & Blue Shield Plans v. Travelers Ins. Co., 514

U.S. 645 (1995), and Rutledge v. PCMA, 592 U.S. 80

(2020), as exempting from preemption all state laws

regulating the amounts that plans pay for treatment

of their members. Neither decision allows such

regulation. Those cases concerned laws that this

Court characterized as regulating the total cost that

providers are paid from all sources, without

compelling plans to cover any particular portion of

that total. Respondents’ unjust enrichment claim

goes further by seeking to saddle employer plan

sponsors (through their claims administrator)—and

ultimately their plan enrollees (through higher

premiums)—with the full amount billed, thus

establishing a de facto new plan term for out-ofnetwork payments. Travelers and Rutledge are thus

inapposite.

6

Rutledge was not a sea change in ERISA

preemption. Instead, it simply reaffirmed Travelers’s

longstanding “logic” that incidental effects on a plan’s

operating costs, standing alone, do not trigger ERISA

preemption. 592 U.S. at 88. State (and federal) courts

should not be permitted to use these cases as a

foothold to override employers’ decisions about how

much of their employees’ treatment to cover. This

case presents an ideal vehicle (Pet. 30-31) for this

Court to resolve the conflict among the lower courts

and clarify that its precedents do not authorize this

interference with the design and function of ERISAcovered benefit plans.

ARGUMENT

I.

The Allocation Of Costs Set Forth In A

Health Plan Is An Essential Feature Of

Plan Design

Employer-sponsored benefits—the prevailing

method of providing health benefits in the United

States—seeks “to provide quality care at reduced costs

to the public.” J. Scott Andresen, Is Utilization

Review the Practice of Medicine? Implications for

Managed Care Administrators, 19 J. Legal Med. 431,

431-32 (1998). Plans and their employer sponsors

achieve this goal in various ways, and those

mechanisms are reflected in the terms of the plan.

One of the most important ways that employersponsored plans ensure high-quality, low-cost care is

through networks of providers that offer the best care

at the best price. But plans cannot maintain these

networks if they are compelled to reimburse out-ofnetwork providers at the same rate as in-network

providers (much less a higher rate). Adherence to

plan terms that limit the extent of out-of-network

coverage—including cost-sharing and allowed-cost

7

terms that limit the portion of providers’ charges that

plans agree to pay—is thus a central aspect of plan

administration.

A. Employer-sponsored health plans are a major

feature of American healthcare.

The plan

beneficiaries are employees and their families, and

they contribute to the plan by paying monthly

premiums. The terms of these plans describe what

services are covered, limitations and exclusions on

coverage, the maximum “allowed” charges that plans

agree to cover for services, and plan members’ costsharing obligations for those allowed charges.

Employer-sponsored health plans generally follow

one of two models: “insured” or “self-funded.” See

Am.’s Health Ins. Plans v. Hudgens, 742 F.3d 1319,

1324 (11th Cir. 2014). For both types of plans, a plan

administrator is typically responsible for processing

benefits claims, see N. Cypress Med. Ctr. Operating

Co., Ltd. v. Aetna Life Ins. Co., 898 F.3d 461, 468 (5th

Cir. 2018), which involves interpreting the terms of

the plan to determine whether a given service is

covered and the allowed charges. In the “insured”

model, the plan administrator uses its own funds to

pay claims. Id. For “self-funded” plans, the employer

is ultimately responsible for paying claims and bears

the financial risk of covering the healthcare costs of

its employees. Id. Most plans at issue here are selffunded. Pet. 6.

B. ERISA gives plan sponsors “large leeway to

design … plans as they see fit.” Black & Decker, 538

U.S. at 833. Employers use that flexibility to develop

mechanisms that ensure their members receive highquality, safe, and affordable care. The mechanisms

that are most effective at achieving this goal—which

are all closely related and nearly ubiquitous across

8

plans—are provider networks, allowed charges, and

cost-sharing requirements.

Plans routinely contract with selected healthcare

providers “to create exclusive ‘provider networks.’”

Ky. Ass’n of Health Plans, Inc. v. Miller, 538 U.S. 329,

332 (2003). Providers in these networks “agree to

render health-care services” to plan beneficiaries “at

discounted rates and to comply with other contractual

requirements” in exchange for “the benefit of patient

volume higher than that achieved by nonnetwork

providers.” Id. By routing plan beneficiaries to innetwork providers, plans ensure that beneficiaries

receive quality care at lower cost. See Karen A.

Jordan, Managed Competition and Limited Choice of

Providers: Countering Negative Perceptions Through

a Responsibility to Select Quality Network Physicians,

27 Ariz. St. L.J. 875, 917-20 (1995).

Provider networks “pla[y] a central role in

insurance systems that ai[m] to contain costs while

maximizing value for consumers and employers.”

Eline M. van den Broek-Altenburg & Adam J. Atherly,

The Relation Between Selective Contracting and

Healthcare Expenditures in Private Health Insurance

Plans in the United States, 124 Health Pol’y 174, 175

(2020). Indeed, numerous studies show that carefully

designed provider networks are associated with

higher quality of care. E.g., Olena Mazurenko et al.,

The Impact of Narrow and Tiered Networks on Costs,

Access, Quality, and Patient Steering: A Systematic

Review, 79 Med. Care Rsch. & Rev. 607, 608 (2022).

Research has also established that carefully designed

provider networks “resul[t] in lower prices” for

services. van den Broek-Altenburg & Atherly, supra,

at 175. This happens in at least two ways: (1) plans

select the most “efficient providers” to join their

9

networks; and (2) the promise of more patients leads

in-network providers to accept “lower negotiated

prices” for their services. Daniel Polsky, Provider

Networks and Health Plan Premium Variation, 56

Health Serv. Rsch. 16, 17 (2021). The upshot of these

lower prices is substantial savings on premiums for

plan members—up to hundreds of dollars per year.

See van den Broek-Altenburg & Atherly, supra, at

175.

Provider networks depend, in turn, on plan terms

that allocate responsibility for providers’ charges

between patients and the plan. A plan’s ability to

negotiate preferred rates with in-network providers

depends on the plan being able to credibly offer those

providers a higher volume of patients. N. Cypress, 898

F.3d at 469. Plans therefore must be able to provide

meaningful financial incentives for their beneficiaries

to use in-network providers. See John L. Utz, Network

Viability and the Emboldened Out-of-Network

Provider, 23 No. 2 ERISA Litig. Rep. 11 (2015). One

way plans do this is by capping the allowed amount

that the plan agrees to cover for a given service

received from an out-of-network provider. Pet. 23.

While out-of-network providers can bill plan members

any rate the member is willing to accept, providers

that bill more than allowed charges typically must

collect the difference from the member.

This

incentivizes members to seek and receive care from innetwork providers.

Relatedly,

cost-sharing

obligations—which

include

“copayments,

deductibles,

[and]

coinsurance”—often require beneficiaries to contribute

a higher share of the plan’s allowed charges when they

obtain services from out-of-network providers. N.

Cypress, 898 F.3d at 469 & n.2. For example, if the

10

member receives a service from an in-network

provider, the member might be required to pay a

coinsurance rate of 10%, whereas if the member

receives the service from an out-of-network provider,

the member might be required instead to pay a 25%

coinsurance rate.

Cost-sharing requirements incentivize plan

members “to seek out providers with lower fees”—i.e.,

in-network providers that offer lower negotiated rates

and better care. Kennedy v. Conn. Gen. Life Ins. Co.,

924 F.2d 698, 699 (7th Cir. 1991). Studies have found

“robust” evidence that higher deductibles, for

example, “are effective at reducing” the “use of lowvalue services that offer little or no clinical benefit.”

Brendan Rabideau et al., Effects of Employer-Offered

High-Deductible Plans on Low-Value Spending in the

Privately Insured Population, 76 J. Health Econ. 1, 13, 18-20 (2021).

Adherence to these plan terms governing costs—

both allowed charges and cost-sharing obligations—is

essential to maintaining provider networks. Plan

sponsors carefully calculate and set these terms to

encourage members to seek in-network care and to

maximize incentives for high-quality providers to join

networks.

If out-of-network providers could

circumvent these terms—and extract from the plan

more than what plan terms dictate—providers would

have little incentive to join networks and employers

would lose their ability to design networks that are

appropriate for the plan. That undermines efforts to

keep costs down and provide high-quality care to plan

members.

Self-funded employer plans bear these costs

directly, and fully insured plans pay higher premiums

reflecting these costs.

Those consequences are

11

directly harmful to plan members and are also

antithetical to ERISA’s goal of “‘encourag[ing]’”

employers “to establish benefit plans.” Conkright, 559

U.S. at 516-17. Plan members and their families thus

benefit enormously from strict adherence to plan

terms governing allowed charges and cost-sharing

requirements.

ERISA also “commands that a plan shall ‘specify

the basis on which payments are made to and from the

plan.’” Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S.

141, 147 (2001) (quoting 29 U.S.C. § 1102(b)(4)). This

requires plan sponsors to engage in a periodic

budgeting process, in which they weigh anticipated

contributions against predicted benefit expenses.

Employers have a significant stake in designing plans

in a way that promotes financial stability over time,

because they want employees and their families to

have strong and reliable coverage.

II. The Reading Of Rutledge That Some

Courts Have Adopted Undermines Plan

Network Design And ERISA

Out-of-network providers have long sought to use

the courts, and state law, to extract 100% of their

billed charges from plans. See Pet. 5-6 n.2 (collecting

several suits filed before Rutledge). These suits

involve different types of services and causes of action,

but they all share a common theory: State law should

override plan terms that govern allowed charges for

out-of-network services. This litigation has only

intensified in the wake of Rutledge. Several courts

(like the Nevada Supreme Court here) have misread

Rutledge and Travelers as endorsing providers’ theory

that state law may supplant ERISA plan terms. If left

unchecked, this profound misinterpretation of

Rutledge and Travelers threatens employers’

12

longstanding reliance on benefit designs that allow

them to provide affordable, high-quality coverage for

their employees.

A. In the five years since Rutledge was decided,

providers have filed an exponentially increasing

number of suits seeking higher reimbursement

amounts from plans. E.g., Pet. 5-6 n.2. The pattern

is by now familiar: Providers refuse to agree to the

preferred rates that are required for in-network

providers; plan administrators reimburse those outof-network providers according to the plan terms

governing allowed charges; and those out-of-network

providers bill amounts in excess of allowed charges

and then sue plans under state law to recover their

full billed charges. See, e.g., AMISUB (SFH), Inc. v.

Cigna Health & Life Ins. Co., 681 F. Supp. 3d 842, 847

(W.D. Tenn. 2023); Molina Healthcare of Tex., Inc. v.

ACS Primary Care Physicians Sw., PA, 2024 WL

3608192, at *2-3 (Tex. App. Aug. 1, 2024); United

Healthcare Servs., Inc. v. Hosp. Physician Servs. Se.,

P.C., 2024 WL 3852337, at *3 (N.D. Ga. Aug. 16, 2024)

(“TeamHealth’s CEO told United that TeamHealth

was good at the litigation route and had a template to

file a complaint in every state.”).

Some of these suits have succeeded, despite

ERISA’s preemption provision. One of the earliest

post-Rutledge decisions is illustrative. Providers

claimed a plan administrator was required to

reimburse them at the “usual and customary rate”

under Florida law rather than according to plan

terms. Fla. Emergency Physicians Kang & Assocs.,

M.D., Inc. v. United Healthcare of Fla., Inc., 526 F.

Supp. 3d 1282, 1289 (S.D. Fla. 2021). In rejecting the

plan administrator’s ERISA preemption argument,

the court invoked (at 1298-99) Rutledge’s statements

13

that ERISA generally “does not pre-empt state rate

regulations that merely increase costs,” 592 U.S. at

88, and that “cost uniformity was almost certainly not

an object of pre-emption,” id. (quoting Travelers, 514

U.S. at 662). The court reasoned that because the

state-law claims “fundamentally regard[ed] the rate

at which third-party providers are reimbursed and

the way that reimbursement rate is calculated,” those

claims were not preempted. 526 F. Supp. 3d at 1299.

The decision below applied the same rationale.

According to the Nevada Supreme Court, there can be

no ERISA preemption as to “the rate of

reimbursement for emergency services” “because ‘cost

uniformity was almost certainly not an object of preemption.’” Pet. App. 12a (quoting Travelers, 514 U.S.

at 662). In other words, merely because the providers

here were suing over a cost-related issue (allowed

charges), ERISA preemption was not implicated,

notwithstanding that the suit sought to override the

plan terms setting those charges.

These suits have covered the field in terms of the

kinds of medical services at issue and the types of

state-law causes of action that providers invoke. See,

e.g., Vanguard Plastic Surgery, PLLC v. United

Health Grp. Inc., 2021 WL 4651504, at *1 (S.D. Fla.

Sept. 21, 2021) (unjust enrichment, breach of contract,

promissory estoppel, and Florida statutory claims

regarding emergency and non-emergency services);

Epic Reference Labs v. Cigna, 2021 WL 4502836, at *1

(D. Conn. Sept. 30, 2021) (suit seeking $32 million in

additional reimbursement for testing services at outof-network laboratories); cf. United Healthcare Servs.,

Inc., 2024 WL 3852337, at *1-2 (denying motion to

dismiss in action “seeking declaratory relief relating

to the reimbursement of … out-of-network claims” for

14

“emergency and non-emergency medical services”).

But at their core, these cases raise the same question:

Can providers leverage state law to nullify plan terms

that govern a plan’s allowed charges for out-ofnetwork services? Cf. United Healthcare Servs., Inc.,

2024 WL 3852337, at *4 (“[T]he controversy is

whether United is obligated to pay 100% of the

amounts billed by [providers], or whether United may

pay an amount that is consistent with the Plans.”).

The proliferating lawsuits that have advanced the

plan-nullification theory pose a crisis for ERISA and

the provider networks upon which employers rely to

provide affordable and effective benefits for their

employees. If out-of-network providers can use state

law to force plans to shoulder providers’ charges in

excess of allowed amounts, members lose a significant

incentive to choose in-network providers. That, in the

aggregate, reduces the volume of members using innetwork providers, thereby undercutting providers’

incentives to join networks and maintain network

standards for quality and affordability of care.

Moreover, if state law permits providers to charge

excessive amounts free from market constraints,

providers have even less incentive to join networks

unless plans agree to pay them more, thus driving up

healthcare costs and member premiums.

Unsurprisingly, then, out-of-network providers

that have succeeded in the courts continue to pursue

“the litigation route” rather than engage in

meaningful negotiations to join plan networks.

United Healthcare Servs., Inc., 2024 WL 3852337,

at *3. This dilemma ultimately harms patients, who

are forced to obtain costlier, lower-quality care.

B. Decisions like the one below have other

significant ramifications for ERISA-covered plans. By

15

elevating state law above plan terms, these decisions

impose liability outside of the ordinary framework for

determining benefits due under ERISA. Cf. 29 U.S.C.

§ 1132(a)(1)(B) (authorizing suit “to recover benefits

due … under the terms of [the] plan”).

That

undermines several aspects of plan design and

administration beyond just provider networks and

cost-sharing.

First, many ERISA-covered plans grant

“discretionary authority” to claims administrators to

interpret plan terms, including terms governing

allowed charges. Firestone Tire & Rubber Co. v.

Bruch, 489 U.S. 101, 115 (1989). These delegations

are common in ERISA-covered employer-sponsored

plans because a plan administrator’s discretion—and

the “deference” that courts afford to exercises of that

discretion—promotes “efficiency, predictability, and

uniformity” in plan administration. Conkright, 559

U.S. at 518. Thus, under the ERISA framework, the

determination of allowed charges for out-of-network

services would be based on the plan administrator’s

interpretation of the applicable plan terms, and would

be reviewed deferentially by a court under an abuseof-discretion standard where the plan has granted

such discretion to the administrator. See N. Cypress,

898 F.3d at 483.

Routing ERISA claims through state law

undercuts that discretionary authority. Under the

decision below, for example, allowed charges are

instead decided de novo by a jury, based on what it

deems to be a “reasonable” amount. Pet. App. 7a, 20a21a. Because a plan’s discretion to interpret plan

terms normally applies to all plan terms—not just

those governing allowed charges—the reasoning of

decisions like the one below threatens to dilute

16

efficiency, predictability, and uniformity in all facets

of plan administration.

Second, ERISA authorizes only plan members to

sue for benefits due. See 29 U.S.C. § 1132(a)(1)(B).

Plan members can sometimes assign their claims—

and thus the right to sue—to providers under a

separate contract. But plans retain authority to

prohibit such assignments through “anti-assignment

clauses,” which courts generally recognize as

“enforceable” when used in ERISA plans. Am.

Orthopedic & Sports Med. v. Indep. Blue Cross Blue

Shield, 890 F.3d 445, 453, 455 (3d Cir. 2018). Plans

use these provisions to “decrease their exposure to

out-of-network claims, and encourage providers to

come in network,” lowering the cost of coverage for

employers and plan beneficiaries. Plastic Surgery

Ctr., P.A. v. Aetna Life Ins. Co., 967 F.3d 218, 228 (3d

Cir. 2020). But under the logic of decisions like the

one below, providers could sue under state law to

recover benefits (in the form of ordinary damages)

without obtaining an assignment from the

beneficiary, even if the beneficiary’s plan has an antiassignment clause.

Third, although ERISA does not specify a statute

of limitations for bringing a claim for benefits under

29 U.S.C. § 1132(a)(1)(B), limitations periods imposed

by plans are enforceable, see Heimeshoff v. Hartford

Life & Acc. Ins. Co., 571 U.S. 99, 102 (2013), as are

plan provisions requiring plan members to exhaust

their administrative remedies before filing suit, cf. id.

at 108. Plans rely on these requirements to provide

certainty and repose, lowering the risk of unexpected

expenses and thus making it easier and more

attractive for employers to provide greater benefits to

their employees. By suing under state laws that do

17

not honor plan terms in the same way that ERISA’s

framework does, providers could sue long after any

plan limitations periods have expired, and without

having to adhere to plan exhaustion requirements.

This Court’s intervention is thus sorely needed to

stem a tide of litigation that threatens to subvert

provider networks and other important features of

ERISA plan design.

III. Rutledge Was A Narrow Decision That In

No Way Endorses A Dismantling Of ERISACovered Employer-Sponsored Benefits

The case for preemption here is straightforward.

The $2.65 million in damages awarded on

Respondents’ unjust enrichment claim overrides the

ERISA plan terms that specified what portion of the

cost the plans would cover for out-of-network services.

That state-law judgment plainly “relate[s] to” ERISA

plans. 29 U.S.C. § 1144(a). Nothing in Rutledge or

Travelers is to the contrary.

A. Respondents’ unjust enrichment claim is

preempted under well-established principles. A state

law “relates to” an ERISA plan, and is therefore

preempted, “if it has a [(1)] connection with or [(2)]

reference to such a plan.” Shaw v. Delta Air Lines,

Inc., 463 U.S. 85, 96-97 (1983). Both prongs provide

independently sufficient grounds for preemption here.

The unjust enrichment claim “has an

impermissible ‘connection with’ ERISA plans”

because it “‘governs … a central matter of plan

administration,’” Gobeille v. Liberty Mut. Ins. Co., 577

U.S. 312, 320 (2016)—namely, “the payment of

benefits,” Egelhoff, 532 U.S. at 148. Respondents’

claim directly interferes with this central aspect of

18

plan administration because it requires payment of

benefit amounts that are different than the amounts

specified in the plans. See De Buono v. NYSA-ILA

Med. & Clinical Servs. Fund, 520 U.S. 806, 814-15

(1997) (ERISA preempts laws regulating a plan’s

“method of calculating … benefits”). Preemption is

especially clear here because a plan’s cost-allocation

terms—displaced by the state-law judgment below—

are important components of plan design and

administration. Supra at 6-11.

Indeed, ERISA expressly requires a plan’s

fiduciaries to operate the plan “in accordance with the

documents and instruments governing the plan.” 29

U.S.C. § 1104(a)(1)(D). That includes the plan’s

written specification of the basis on which amounts

are payable as benefits. Id. § 1102(a)(1), (b)(4). By

requiring plan fiduciaries to pay providers an amount

far in excess of what the plan document specifies, the

Nevada Supreme Court’s state-law judgment literally

requires the fiduciaries to disobey an unambiguous

congressional command. That judgment turns the

Supremacy Clause upside down, defying the most

venerable principle governing the relationship

between state and federal law in a republic with dual

sovereignties, see Ware v. Hylton, 3 U.S. (3 Dall.) 199

(1796)—a principle honored by ERISA’s expresspreemption provision.

Respondents’ unjust enrichment claim also

depends on an impermissible “reference to” ERISA

plans because “‘the existence of ERISA plans is

essential to’” the claim’s “‘operation.’” Gobeille, 577

U.S. at 319-20. According to the Nevada Supreme

Court, Respondents were entitled to judgment on this

claim because they purportedly conferred a “benefit”

19

on United by satisfying United’s “contractual duty”

under its ERISA plans “to pay reasonable rates for

out-of-network emergency care” to plan members.

Pet. App. 18a-21a. Claims that are premised on this

type of benefit—a provider’s satisfaction of “the

insurer’s duty to its insured under the terms of the

ERISA plan”—“entail an impermissible ‘reference

to’ … ERISA plans” because they depend on “the

existence of an ERISA plan.” Plastic Surgery Ctr.,

P.A., 967 F.3d at 239-42 (brackets omitted); accord

Access Mediquip L.L.C. v. UnitedHealthcare Ins. Co.,

662 F.3d 376, 386-87 (5th Cir. 2011). The unjust

enrichment claim is thus squarely preempted.

B. Several lower courts, including the Nevada

Supreme Court, have reached the opposite conclusion

by casting causes of action like the one here as

analogous to the rate regulations exempted from

preemption in Travelers and Rutledge. See, e.g., Pet.

App. 12a; Fla. Emergency Physicians, 526 F. Supp. 3d

at 1288-89. But these courts have misread Travelers

and Rutledge, which involved laws that this Court

described as merely regulating the total compensation

due to providers, rather than specifically compelling

plans or their agents to cover any particular portion of

that cost in contradiction to plan terms.

Travelers upheld a New York law that “require[d]

hospitals to collect surcharges from patients.” 514

U.S. at 649 (emphasis added). As New York explained

to this Court, these “assessments [we]re not imposed

upon ERISA plans,” and “the law d[id] not require any

ERISA plan … to pay any benefit, any level of benefit,

or any particular amount of a patient’s hospital bill.”

Br. for Pet’rs 18-19, Travelers, 1994 WL 646144 (U.S.

Nov. 16, 1994). Indeed, “at least one commercial

20

insurer … made the determination that its plan terms

d[id] not permit payment” of the surcharge. Reply Br.

for Pet’rs 10 n.10, Travelers, 1994 WL 721247 (U.S.

Dec. 29, 1994).

Unlike Respondents’ unjust

enrichment claim, then, the law in Travelers did not

require the plans themselves to pay any particular

amount for the provider’s services.

The Arkansas law in Rutledge was—according to

this Court—even “less intrusive than the law at issue

in Travelers,” so “[t]he logic of Travelers decide[d]

th[at] case.” 592 U.S. at 88. The Court upheld an

Arkansas law that it characterized as regulating the

total amount paid to pharmacies for prescription

drugs through the mix of funding sources determined

by a plan—including reimbursements from plans

(through their pharmacy benefit managers (PBMs))

and payments by patients at the point of sale. Id. at

84, 90. The law, this Court explained, did not demand

that plans or their PBMs pay any particular rate, but

instead merely set “a floor” for the total “cost” of the

covered prescription drugs—that is, “how much” a

PBM “and its beneficiary … owe[d],” collectively. Id.

at 90 (emphasis added).

ERISA preemption did not reach this specific

“form of cost regulation.” 592 U.S. at 88. Nothing in

the Arkansas law would have prevented a plan, by its

terms, from leaving its beneficiary to pay at the

pharmacy counter all mandated costs above a fixed

amount covered by the plan. Instead, as the Court

saw it, the law simply ensured that pharmacies

ultimately received sufficient reimbursement from all

sources “to cover [their] acquisition cost[s].” Id. at 85.

This Court thus emphasized that the law did not

“require plan administrators to structure their benefit

21

plans in any particular manner,” id. at 89, and it

reaffirmed that state laws “requiring payment of

specific benefits” by plans or their agents are among

the “primar[y]” targets of ERISA preemption, id. at

86-87; see also Travelers, 514 U.S. at 658 (§ 514(a)

preempts state laws that “mandat[e] employee benefit

structures or their administration”).

Respondents’ cause of action unmistakably does

dictate the amount that the plans themselves must

pay to providers. It requires United (and thus the

plans) to reimburse Respondents at the rate a Nevada

jury deemed “reasonable,” Pet. App. 21a, 26a, rather

than according to the terms of the governing ERISA

plans. This claim is therefore very different from the

narrow form of rate regulation assessed in Travelers

and Rutledge.

Several decisions, including the decision below,

have entirely failed to grapple with this critical

distinction. Instead, they have reflexively invoked

this Court’s statements that ERISA preemption

generally does not reach “state law[s] that merely

increase costs,” Rutledge, 592 U.S. at 91, that “cost

uniformity was almost certainly not an object of preemption,” id. at 88 (quoting Travelers, 514 U.S. at

662), and that the laws in Rutledge and Travelers

were “merely a form of cost regulation,” id. But these

“‘general’” pronouncements “should be read ‘as

referring in context to circumstances similar to the

circumstances then before the Court.’” Turkiye Halk

Bankasi A.S. v. United States, 598 U.S. 264, 278

(2023).

Read in context, Rutledge’s statements about

state laws that “merely increase costs … for ERISA

22

plans,” 592 U.S. at 88 (citing De Buono, 520 U.S. at

816), refer to laws that “ha[ve] only an incidental

impact on” the costs of operating a plan, De Buono,

520 U.S. at 810. The paradigmatic example is a “tax

of general application,” such as “a gross receipts tax

on the income of medical centers operated by ERISA

funds.” Id. at 809-10. Such laws indirectly “increas[e]

the cost of providing benefits” without forcing plans to

pay any particular amounts for services. Id. at 816.

Here, by contrast, Respondents’ unjust enrichment

claim is directly regulating the amounts that plans

must pay and overriding plan terms, not just making

plans more expensive to operate.

Rutledge embraces this distinction because the

particular “form of cost regulation” evaluated there,

592 U.S. at 88—regulation of the total cost of the

underlying service—has only incidental effects on

costs to plans. If a law increases the total cost of

treatment, and that happens to increase the cost to

the plan (because, for example, the plan has agreed to

cover the full cost of treatment), that law is not

preempted because the effect on what the plan pays is

incidental. Plans are still free to choose to pay only

part (or none) of the total cost. That is far different

from the type of regulation at issue here: laws that

seek to directly change “the amount paid” by plans

and their administrators. Am.’s Health Ins. Plans,

742 F.3d at 1331 (emphasis omitted).

The practical “effect[s]” of these two distinct

regulatory schemes are also starkly different. Cal.

Div. of Labor Standards Enf’t v. Dillingham Constr.,

N.A., Inc., 519 U.S. 316, 325 (1997). Plan terms

governing allowed charges and cost-sharing reflect

the amounts that plan sponsors have budgeted for

23

payments to and from the plan. See 29 U.S.C.

§ 1102(b)(4). State laws that increase the costs of

certain services might limit an employer’s budgetary

options for future plan years, but they can be

anticipated in the ongoing budget forecasting process.

By contrast, state laws exposing plans and employers

to the risk of unpredictable payments in excess of

budgeted amounts undercut incentives to offer such

plans. Indeed, those laws are indifferent to a plan’s

continued existence—here, for example, state law

neither required nor permitted the jury to account for

how its damages award might interfere with an

employer’s ability to offer benefits.

Rutledge thus did not endorse the notion that

state law overrides plan terms whenever cost is

implicated in some way. That reading of Rutledge has

no discernible limiting principle and would severely

erode ERISA employer-sponsored coverage, given

that employer-sponsored plan terms governing

benefit payments are an important means of

maintaining provider networks and ensuring that

beneficiaries receive the best and most cost-effective

care. This Court surely did not intend that result.

After all, as this Court has unanimously stated,

“‘[t]he plan … is at the center of ERISA.’” Heimeshoff,

571 U.S. at 108. State laws that override plan terms

thus should fall comfortably within the heartland of

ERISA preemption. Many federal and state appellate

courts have recognized this inescapable conclusion,

yet the Nevada Supreme Court and other courts have

seen matters differently. Pet. 11-20. This case

presents an excellent vehicle to make clear that

Rutledge and Travelers were not intended to relegate

plan terms to an afterthought, much less threaten

24

significant disruption to the employer-sponsored

benefits system on which American families rely for

high-quality, affordable care.

CONCLUSION

The petition for certiorari should be granted.

Respectfully submitted.

Matthew S. Rozen

Heather L. Richardson

GIBSON, DUNN & CRUTCHER LLP Counsel of Record

Robert A. Batista

333 South Grand Avenue

Christian L. Conway

Los Angeles, CA 90071

GIBSON, DUNN & CRUTCHER LLP

1700 M Street, N.W.

Washington, D.C. 20036

(202) 955-8500

MRozen@gibsondunn.com

Counsel for Amici Curiae

November 14, 2025