Amicus Curiae Brief — District of Columbia v. Greater Washington Bd. of Trade

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Supreme Court, U.S.

— FItED

{ |

No. 91-1326 MAT g 1992

—_. THE CLaMK

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1991

THE DistTRicT OF COLUMBIA AND

SHARON PRATT KELLY, MAyYor,

Petitioners,

Vv.

THE GREATER WASHINGTON BOARD OF TRADE

Respondent.

On Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

BRIEF AMICUS CURIAE OF

AMERICAN OPTOMETRIC ASSOCIATION

IN SUPPORT OF PETITIONERS

BENNETT BOSKEY*

ELLIs LYONS

EDWARD A. GROOBERT

VOLPE, BOSKEY AND LYONS

918 16th Street, N.W.

Washington, D.C. 20006

Telephone: 202/737-6580

Attorneys for the American

Optometric Association

“(Counsel of Record)

May 1992

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

> 2]

TABLE OF CONTENTS

INTEREST OF AMERICAN OPTOMETRIC

SUMMARY OF ARGUMENT. ..............cccsssssscceeessseeees 4

II. This District of Columbia Statute Comes

Within ERISA’s Workmen’s Compensation

Exemption Fairly Interpreted ...................... 8

III. In Any Event, The Court Should Be Cautious

‘one Giving Undue Breadth To The

ISA Preemption Phrase ‘Relate To”’ ..... 10

CONCLUSION ..... secoosesiooeees sncceseees conssonssossoesons eeescscese 18

TABLE OF AUTHORITIES

Cases: Page

Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504

SIT Uieiiiailinadibaindaeinedeenesscsenteseensescessenveneceeecee 9

Blue Cross and Blue Shield of Kansas City v. Bell,

798 F.2d 1331 (10th Cir. 1986) ...........ccccccceee 5

Blue Cross Hospital Service, Inc. v. F’ ler, 472

U.S. 1014 (1985), on remand, 698 S.W. 2d 326

TL a ae 5

Blue Shield of Virginia v. McCready, 457 U.S. 465

SIT ill andgtinnipmasontnsseenscsncsoussashucenececséieciecrceeee 14

California v. ARC America Corp., 490 U.S. 93

EEE Ee 10

Dewsnup v. Timm, 502 U.S. __, 112 S.Ct. 773

EERE 13

R. R. Donnelley & Sons Co. v. Prevost, 915 F.2d

787 (1990), cert. denied 111 S.Ct. 1415

III TIiiiaatabbinaabbneneeminsondscosensesatecnececcecscccceees 9

FMC Corp. v. Holliday, 498 U.S. —, 111 S.Ct.

IIT tisitilaibdiidibhinpetenesconentanuncsnenceccscoqecocee 10

Fort Halifax Packing Co. v. Coyne, 482 U.S. 1

assy (ESET aE 10,12,15

FTC v. Indiana Federation of Dentists, 476 U.S. 7

EEE 14

Gozlon-Peretz v. United States, 498 U.S. —_, 111

SS 17

Ingersoll-Rand Co. v. McClendon, 498 US. —_ , 111

I cscssee 10

Mackey v. Lanier Collection Agency & Serv., 486

US. ESE EE 10,12,17

Metropolitan Life Insurance Co. v. Massachusetts,

a 3,6,8,10,12

Mulleniz v. Aetna Life & Cas. Inc. Co., 912 F.2d

TEE TIES TIE sccccccosceccsnesedeeeseccconccseccece 6

Table of Authorities Continued

Page

Robertson v. Railroad Labor Board, 268 U.S. 619

ee 10

Shaw v. Delta Air Lines, Inc., 463 U.S. 85

ee 9,10,15

United States v. Alaska, No. 118 Orig., decided

April 21, 1992, 60 USLW 4315 ............cccceeees )

United States v. Monsanto, 491 U.S. 600 (1989) ... 17

United States v. Republic Steel Corp., 362 U.S. 482

SETEIIED cncnontnactinnenennitenientmnpmennenasnuitatsmnmnnmnanete i)

United States v. Wilson, 503 U.S. , 112 S.Ct.

a ae aie alae 10

Virginia Academy of Clinical Psyc ists v. Blue

Shield of Virginia, 624 F.2d 476 (4th Cir.

1980), cert. denied 450 U.S. 916 (1981) ......... 14

Wilk v. American Medical Ass'n, 895 F.2d 352 (7th

Cir. 1990), cert. denied 111 S.Ct. 513

GED cennsncnsnnesecsnnenensnnsnnestenenencenessenscsnnsceencnsesese 14

Will v. Michigan Dept. of State Police, 491 U.S. 58

GEE cocscecenenscocesececcssnscnsnscsnsnessencocscccscecoosonsesses 9

Statutes:

D.C. Code (1991 Cum.Supp.), §36-307(a-1) ........... 3,11,13

Employee Retirement Income Security Act

(“ERISA”), P.L. 93-406 (1974), as amended,

29 U.S.C. §$§1001 et Seq. ........cccccccccceeereeeeees passim

Section 4(bX3), 29 U.S.C. §1003(b\3) ............. 8

Section 514(a), 29 U.S.C. §1144(a) .................. S

Section 514(b), 29 U.S.C. §1144(b) ................. S

Section 514(d), 29 U.S.C. §1144(d) ................. 14,15

Civil Rights Act of 1964, Title VII ...............008 15

Multiemployer Pension Plan Amendments Act of

1980, P.L. 96-364, codified as 29 U.S.C.

BES UOR GB GBR, cccccccccscescscccsssccscescocsecesessssessccocs 16

Table of Authorities Continued

IN THE

Page ,

P.L. 93-363 (1974), 5 U.S.C. §8902(k) ccccccccccceseeeee 16 Supreme Court of the United States

P.L. sees (1974), amending 5 U.S.C. §8101(2) and OcTOBER TERM, 1991

sisaseeieaiiiedaieilidesadeiidneniediiaatnicttahaeta dae 16

P.L. 99-509, Section 933 (1986), 42 U.S.C. -

SR natintaapattisiintahletntt tear ceacelatete 7,15 No. 91-1326

Other:

126 Cong.Rec. 23042 (August 25, 1980) ...0............ 16 THE District OF COLUMBIA

H.Rept. 99-727, 99th Cong., 2d Sess., p. 81 (October AND SHARON PrRaTT KELLY, Mayor,

_§Seneadieon cite eel ame 8 Petitioners,

U.S. Department of Health, Education and Welfare, .

yt? ~ na ved Reimbursement Under Part. THE GREATER WASHINGTON BOARD OF sn

by Optometrists, as —— by Title I, Section sspondent.

109, of P.L. 94-182 (July 1976) ooocccccccccccseee. 8 eal

On Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

BRIEF AMICUS CURIAE OF

AMERICAN OPTOMETRIC ASSOCIATION .

IN SUPPORT OF PETITIONERS

The American Optometric Association submits this

brief amicus curiae in support of petitioners. Letters

granting consent, received from counsel for each of

the parties, have been filed with the Clerk of this

Court.

INTEREST OF AMERICAN OPTOMETRIC ASSOCIATION

The American Optometric Association (““AOA’’), a

nonprofit membership organization incorporated un-

der Ohio law, is a national professional association of

more than 29,000 members consisting of licensed Doc-

tors of Optometry, optometry students,and educators.

AOA S objects, as set forth in its Constitution, “are

to improve the vision care and health of the public

and to promote the art and science of the profession

of optometry.” AOA has as affiliates the State op-

tometric associations in each of the 50 States and in

the District of Columbia, the Armed Forces Opto-

metric Society and the American Optometric Student

Association.

As the national professional organization repre-

senting the optometric profession, AOA has always

been, and is now, vitally interested in matters af-

fecting the adequacy of vision care available to the

public. This includes, among other things, AOA’s in-

terest in supporting and sustaining what is usually

called “freedom of choice” legislation. “Freedom of

choice’’ is the universally enacted State legislation

which, so far as it applies to the field of vision care,

prevents insurance companies, health benefit plans

and others from discriminating against the practice

of optometry; it likewise prevents discrimination

against patients who in obtaining vision care wish to

utilize the professional services of optometrists in-

stead of physicians for those services within the law-

ful scope of the practice of optometry.

The present case is one of a series that—depending

on what this Court says about the scope of the ERISA

preemption—may have a substantial impact on such

matters on a national basis. When the Massachusetts

ERISA litigation was before this Court, AOA filed a

brief amicus curiae in support of the Commonwealth

of Massachusetts, urging affirmance. The Massachu-

setts court had held that the ‘‘mandated benefit’ pro-

vision (requiring reimbursement to be made for certain

mental illness costs), which the Massachusetts statute

made applicable to employee health benefit plans

placed with insurance carriers, was not preempted by

ERISA because such application of the mandated ben-

efit statute was saved by the insurance savings clause

in ERISA’s preemption provision. This Court affirmed

the judgment. Metropolitan Life Insurance Co. Vv.

Massachusetts, 471 U.S. 724 (1985). AOA also urged

that, no matter what decision this Court might reach

as to whether the Massachusetts mandated benefit

statute was preempted, the Court should in any event

avoid any intimation which might impair or cast a

cloud on the continuing validity of the widely-adopted,

but very different, State freedom of choice legislation.

We submit that the Court’s opinion in Metropolitan

Life was responsive to this concern, and that the

Court’s opinions in subsequent ERISA preemption

cases have manifested a similar caution.

The substance of AOA’s position is this: While the

broad preemption language in ERISA is to be inter-

preted generously, the preemption should not be given

an overzealous overbreadth which would smother le-

gitimate State legislation that Congress never would

have intended to displace. The present case involves

a 1991 amendment, D.C. Code (1991 Cum.Supp.) §36-

307(a-1), to the District of Columbia workers com-

pensation legislation, which permits an employer to

comply with the workers compensation law by estab-

lishing an employee benefit plan separate from the

employer’s ERISA-covered benefit plans provided that

the separate plan establishes benefits equivalent to

those established by the workers compensation law.

Da a tect ai)

ee ke i eM Rw |

In holding that this statute is preempted, the District

of Columbia Circuit has stretched the ERISA preemp-

tion beyond reasonable bounds. While AOA’s interest

in the narrower aspects of the issue as to this par-

ticular District of Columbia Code provision may seem

in some respects peripheral, AOA’s interest in this

Court’s disposition of the case is strong.

SUMMARY OF ARGUMENT

Petitioners’ position that the District of Columbia

statute here involved is exempt from ERISA—and

hence exempt from preemption by ERISA—finds

abundant support in the language of the ERISA ex-

emption relating to workmen’s compensation laws. It

is likewise supported by the Congressional policy un-

derlying the exemption and by the well-reasoned opin-

jon of the Second Circuit which the District of

Columbia Circuit chose here to reject. The exemp-

tion—which was intended to preserve for the States

an area traditionally regulated by the States—should

not be given the grudging interpretation which the

District of Columbia Circuit has arrived at. Accord-

ingly the judgment should be reversed.

But in any event—whatever the result that may be

reached by the. Court on that question—the Court

should carefully avoid any decision route which would

impair or cast a cloud upon any of the State freedom

of choice legislation. In the field of vision care for

example, when a benefit plan covers certain services

relating to eye conditions, the freedom of choice leg-

islation prevents the plan from refusing to reimburse

the employee who chooses to go to an optometrist

instead of to an ophthalmologist. For a variety of

reasons it 1s Important that no preemption of such

legislation be read into the ERISA preemption clause.

The Court should leave that matter fully open for

consideration at some future date when the question

does come before it directly.

ARGUMENT

I. Introductory

For more than a decade this Court and the lower

courts have been wrestling with questions arising out

of ERISA’s rather complex, and by no means crystal-

clear, preemption provision. Presumably Congres-

sional clarification, if it could be obtained, would be

welcome. But it has not been forthcoming, and mean-

while this Court and the lower courts have been pro-

ceeding on a case-by-case basis.

AOA’s primary interest in this and comparable lit-

igation is to help assure that, when the issue finally

comes squarely before this Court (if it ever does), all

of the State freedom of choice laws are sustained

against any claim of ERISA preemption.! As ERISA

‘When Blue Cross Hospital Service, Inc. v. Frappier was re-

manded by this Court, 472 U.S. 1014 (1985), for further con-

sideration in light of Metropolitan Life, supra, the Missouri

Supreme Court disposed of the case by holding that, in the light

of Metropolitan Life, it is clear that State freedom of choice

statutes applicable to insured plans (such as the Missouri statute)

come within ERISA’s insurance savings clause and hence are

not preempted by ERISA. Blue Cross Hospital Service, Inc. v.

Frappier, 698 S.W. 2d 326 (Mo. 1985). Accord, Blue Cross and

Blue Shield of Kansas City v. Bell, 798 F.2d 1331 (10th Cir.

1986), holding that the Kansas freedom of choice statute appli-

cable to insured plans comes within ERISA’s insurance savings

clause and hence has not been preempted.

One subsequent appellate decision has held that ERISA

preemption law develops in the meantime, no needless

impediment should be placed in the way of this sound

ultimate result.

At the outset it should be noted that the freedom

of choice laws are totally unlike the mandated-benefit

law which was before this Court in Metropolitan Life.

The State freedom of choice laws do not require that

a health plan shall cover any particular illness or con-

dition. They do not force upon a plan the coverage

for this or that illness or condition. For example, the

freedom of choice laws do not require that a plan

cover vision care at all; and if the persons responsible

for formulating the plan do wish to cover particular

aspects of vision care, the freedom of choice laws do

not dictate which types of eye diseases or eye con-

ditions or eye examinations shall be covered or with

what frequency such coverage may be availed of by

the employee.

Instead, the freedom of choice laws consist of a

vast body of State enactments, on the books in one

or more forms in all 50 of the States and in the

District of Columbia, which safeguard a patient’s free-

dom of choice to select a provider of a particular

health care service when the plan does cover the ser-

vice. With respect to vision care coverage—if and to

the extent that such coverage is actually provided for

by an employee benefit plan—this means that there

was and is pervasive State legislation requiring that

the plan not refuse to reimburse the patient who pre-

preempts an Alabama freedom of choice statute when reim-

bursement is sought under a self-insured employee benefit plan

for services furnished by a chiropractor. Mulleniz v. Aetna Life

& Cas. Ins. Co., 912 F.2d 1406 (11th Cir. 1990)—a case we

submit was incorrectly decided.

fers to use the professionai services of an optometrist

(instead of a physician), as long as the services come

within what may lawfully be performed by a licensed

optometrist under the laws of the particular State.

Moreover, the freedom of choice laws do not inflict

on the benefit plans any additional costs in the vision

care field; and indeed, practical experience has indi-

cated that, on the whole, the costs of services per-

formed by optometrists tend to be less than the costs

of comparable services performed by ophthalmolo-

gists.

Throughout the Nation these freedom of choice sta-

tutory provisions have been enacted to assure to the

patient his or her right of choice and, so far as vision

care is concerned, to prevent discrimination against

using the professional services of optometrists. The

freedom of choice statutes represent deep-rooted pol-

icies of the States concerned, in a field normally gov-

erned by State law. Moreover, since optometrists

usually are more widely dispersed geographically, and

more conveniently located, within a State than are

ophthalmologists, such legislation helps to assure that

patients, particularly the elderly, will have greater

access to convenient prepaid health care.’

2In 1980, Congress expanded Medicare coverage to include

services performed by optometrists in connection with the con-

dition of aphakia. See 42 U.S.C. §1395x(r\4), discussed in note

5 infra. In a 1976 Report recommending the adoption of this

amendment, the Department of Health, Education and Welfare

stated: ‘6. Access to services. Vision/eye care services for aphakic

and cataract patients, as well as for patients more generally,

can be made more accessible to the Medicare eligible population

by providing reimbursement for services when provided by op-

tometrists. In general, optometrists are more widely distributed

Accordingly, it is AOA’s position that:

(1) State freedom of choice laws are outside the

scope of ERISA’s preemption clause fairly inter-

preted. This turns on a fair but not over-extravagant

reading of the preempting phrase “‘all State laws in-

sofar as they may now or hereafter relate to any

employee benefit plan,” in 29 U.S.C. §1144(a); and

(2) in any event, proper recognition should be given

not only to the scope of ERISA’s insurance savings

clause, 29 U.S.C. §1144(b), as in Metropolitan Life,

supra, but also to the scope of the express exemptions

from ERISA, such as the exemption particularly in-

volved in this case, where 29 U.S.C. §1003(b\3) ex-

pressly exempts an employee benefit plan “maintained

solely for the purpose of complying with applicable

workmen’s compensation laws.”

We deal with the latter point first.

Il. gm aoe Columbia Statute Comes Within

’s Wor n’s Compensation E j i

satel pe xemption Fairly

This question, on which the outcome of the case

will likely turn, was extensively developed by

geographically and practice in many smaller communities where

other vision/eye care practitioners are not available.” U.S. De-

partment of Health, Education and Welfare, Report to Congress:

Reimbursement Under Part B of Medicare For Certain Services

Provided by Optometrists, as required by Title I, Section 109,

of P.L. 94-182 (July 1976), p. v. Similarly, in connection with a

1986 Medicare amendment eliminating discrimination against op-

tometry (also discussed in note 5 infra) the House Committee

Report stated: “Many beneficiaries are either foregoing covered

eye care or are paying out-of-pocket for eye care services fur-

nished by optometrists, because they do not have ready access

Aiea ee, Sad Lecmme Gn premnt velee ae te

ifficul rs .”” H.Rept. 99-727,

p. 81 (October 17, 1986). , ———

petitioners in their petition for certiorari and in their

reply to respondent’s brief in opposition. Petitioners

showed the strong support which their position de-

rives from this Court’s decision in Shaw v. Delta Air

Lines, Inc., 463 U.S. 85 (1983). They also had the

support of the Second Circuit’s well-reasoned decision

in the comparable Connecticut case, R. R. Donnelley

& Sons Co. v. Prevost, 915 F.2d 787 (1990), cert.

denied 111 S.Ct. 1415 (1991)—a decision which the

District of Columbia Circuit unfortunately rejected

here. It is expected that petitioners will develop fur-

ther in their brief on the merits their argument in

support of the exemption, drawing on the statutory

language and the manifest legislative purpose.

Without necessarily subscribing to every component

of the petitioners’ argument, we strongly support its

main thrust and its conclusion. Express exemptions

from Congressional legislation should be interpreted

fairly, not grudgingly. The context is one where the

purpose of the exemption clearly “forbids a narrow,

cramped reading.” United States v. Alaska, No. 118

Orig., decided April 21, 1992, 60 USLW 4315, 4318,

quoting United States v. Republic Steel Corp., 362

U.S. 482, 491(1960). This is particularly true in the

ERISA domain, where certain areas previously sub-

ject to intensive State regulation and control have

been taken over by federal mandate. The Court said

as much in one of its early ERISA opinions, Alessi

v. Raybestos-Manhattan, Inc., 451 U.S. 504, 522

(1981):

As we recently reiterated, “[pjreemption of

state law by federal statute or regulation is

not favored ‘in the absence of persuasive rea-

sons—either that the nature of the regulated

subject matter permits no other conclusion,

or that the Congress has unmistakably so or-

dained.’’”’ [numerous citations omitted]

has subsequently reiterated this well-set-

‘dea sctacigle on various occasions. E.g., som Wal

v. ARC America Corp., 490 U.S. 93, 101 r I =

v. Michigan Dept. of State Police, 491 bs A. . ~

(1989). And, as the Court reminded us = y a 4

day, “It is not lightly to be assumed t of ngre s

intended to depart from a long establis hy 4

United States v. Wilson, 503 U.S. — , 112 an bom

1355 (1992), quoting Robertson v. Railr Magee

Board, 268 U.S. 619, 627 (1925). These are —

ciples which should carry the day in favor o

taining the exemption here. ad

HL. In Any Event: Tecedth To The ERISA. Preemption

Phrase “Relate To.”

] litan Life, supra, and its progeny have given

ventana to the ERISA preemption a,

preempts, with certain exceptions and su ~— pl

tain exemptions, ‘‘all State laws insofar as omy _

now or hereafter relate to any employee — _

99 U.S.C. §1144(a). See, e.g., FMC Corp. v. : 0 7

498 U.S. __ , 111 S.Ct. 403, 407-408 aan ane

Rand Co. v. McClendon, 498 U.S. —, 111 , =

484 (1990). But the Court has also made clear ~e

“Notwithstanding its breadth, we have | —_— a1

limits to ERISA’s pre-emption clause. “< 7 ~d

Rand, 111 S.Ct. at 483. Illustrative of a a

are the decisions in Mackey v. a, = —

Agency & Serv., 486 U.S. 825 (1988), an ror al

ifax Packing Co. v. Coyne, 482 U.S. 1 (1987), see a

Shaw, supra, 463 U.S. at 100 note 21 (1983).

Nothing in the Court’s decisions to date has ad-

dressed the question whether the freedom of choice

laws, with which AOA is especially concerned, do or

do not come within the ERISA preemption clause.

AOA urges that, no matter how this particular case

involving a District of Columbia Code provision is

decided, care be taken to avoid any intimation which

might impair or cast a cloud on the validity of any

of the widely-enacted State freedom of choice laws.

As has been noted, freedom of choice laws raise

the question of what is the fair and reasonable inter-

pretation of the word’’relate” in ERISA’s preemption

clause. In our highly interdependent world, it can be

argued that almost anything “relates” to almost any-

thing else, and yet it must be clear that, as this Court

has recognized, Congress could not have intended that

the doctrine of preemption be carried to the utmost

or even too far.

For example, it might be argued that a State law

imposing general minimum safety standards for x-ray

equipment, which would include equipment used in a

clinic dedicated to examining and treating employees

under a plan, is a law which “relates” to an employee

benefit plan; yet it is hard to believe that anyone

would take seriously a claim that ERISA preempts

such a State law. For another example, a State law

which imposes minimum fire safety standards on a

facility made available to employees under a benefit

plan could, arguably, be said to be a law which ‘“re-

lates” to the plan; but, again, the contention that

ERISA preempts such a law would defy common

sense.

In other words, it continues to be necessary, on a

case-by-case basis, to find the appropriate place for

the ERISA preemption line to be drawn. In important

decisions subsequent to Metropolitan Life, supra, this

Court has made it clear that the question of where

the line is to be drawn should turn not merely on

the cumbersome statutory language but also on a fair

consideration of the historical context, and of whether

the Congressional purposes manifested in ERISA

would be aided or subverted. Thus Fort Halifax, su-

pra, held that a Maine statute mandating a one-time

severance payment in the event of a plant closing did

not “relate to any employee benefit plan.” Mackey,

supra, decided that ERISA does not preempt Géor-

gia’s general garnishment law and hence does not

prevent creditors of ERISA welfare benefit plan par-

ticipants from bringing garnishment proceedings

against the plan in order to collect judgments against

plan participants. In reaching this conclusion this

Court said (486 U.S. at 834):

state-law methods for collecting money judg-

ments must, as a general matter, remain un-

disturbed by ERISA; otherwise, there would

be no way to enforce such a judgment won

against an ERISA plan. If attachment of

ERISA plan funds does not ‘relate to’ an

ERISA plan in any of these circumstances,

we do not see how respondent's proposed

garnishment order would do so.

The Court carefully distinguished this general gar-

nishment law from a special exemption the Georgia

legislature had enacted which applied solely to ERISA

employee benefit plans and which exempted them

from garnishment; that exemption statute the Court

held was preempted since it was specifically designed

to affect employee benefit plans (486 U.S. at 829-

— ~~ It should be clear that even if the Court

encod n ~ og ae to conclude in the present

‘ade te des trict of Columbia Code provision

to “relate’’ to employee benefit

, RB segment of the State freedom of

per Be ara tion relating to vision care—some of it

pe brs Insured plans only, some of it pertaining

pod pe ne incorporated into insurance policies, and

th pertaining to both—was enacted durin: th

Ss, long before ERISA was passed in 1974.° en

already well-known at that ti

t time, adds

= the other reasons for concluding b onagelly an

pr - — has occurred. Compare Dewsnup v. Timm

S._, 112 S.Ct. 773, 779 (1992), |

*Such freedom of choice islati vision

ail legislation relating to visi

a the 1960s is to be found in ny & 24 Stato

— labama . Arizona, California, Colorado Hawaii Idaho.

of choice legislation dating f ’

- ng from those period

ge A. health care other than in =) tame

pre anc. bn of choice legislation not only antedat .

of ERISA in 1974 (PL. 93-406, September 2 en

. , 1974),

With respect to vision care, the freedom of choice

laws are aimed at protecting people by assuring that

more widespread vision care is available, by safe-

guarding the patient’s freedom of choice, and indeed

by discouraging monopolistic or restrictive practices—

whether indulged in by insurance companies or by

employers or by unions or by others. Such monopo-

listic practices would tend to channel away from op-

tometrists, and in to physicians, the professional

responsibility for and the revenue from the perform-

ance of vision care services which otherwise would

flow to optometrists. Compare Blue Shield of Virginia

v. McCready, 457 U.S. 465 (1982).*

‘In the event that the question of ERISA preemption of State

freedom of choice laws were to be directly litigated, there are

at least two additional independent grounds supporting AOA’s

position that no such preemption exists.

First, preemption of the State freedom of choice laws would

impair the federal antitrust laws and hence, we would urge, is

expressly forbidden by ERISA itself in 29 U.S.C. §1144(d), which

provides that nothing in ERISA “shall be construed to alter,

amend, modify, invalidate, impair, or supersede any law of the

United States” (with certain specified exceptions not relevant

fend not only the ic policy and statutes of many States, but

also the federal anti laws. Blue Shield of Virginia v.

McCready, supra; accord, Virginia Academy of Clinical Psy-

chologists v. Biue Shield of Virginia, 624 F.2d 476 (4th Cir.

1980), cert. denied 450 U.S. 916 (1981); Wilk v. American Med-

ical Ass'n, 895 F.2d 352 (7th Cir. 1990), cert. denied 111 S.Ct.

513 (1990), compare FTC v. Indiana Federation of Dentists, 476

U.S. 447, 457-465 (1986). The freedom of choice laws stand as

a bulwark against those who would otherwise commit sec

oer ise t serious

violations of the federal antitrust laws. If ERISA were to be

fo etry, and hence for this additional reason is expressly

— hy Ayah ERISA provision in 29 U.S.C. §1144(4)

erred 4, supra. Until the 1986 amendment, most

Medicare ~ 1 ty why

‘ - even though applicable State law authorized opto-

1986 gpa amended Clause (4) of 42 USC. §1395x(r) to

put the services furnished by optometrists on a totally equal

AOA'’s position—which AOA urges should be fully

protected against dilution or impairment—was further

confirmed within Congress during the enactment of

the ERISA amendments known as the Multiemployer

Pension Plan Amendments Act of 1980, P.L. 96-364,

codified as 29 U.S.C. §§1001a et seq. During the final

stages of that bill’s passage in the HouSe, Congress-

man Thompson (who was Chairman of the House Sub-

committee on Labor-Management Relations and was

Committee) stated (126 Cong.Rec. 23042, August 25, -

1980):

“Finally, the distinguished gentleman from

Texas, Representative Frost, has asked me

to clarify the effect of ERISA’s preemption

provision on a state law requiring that health

insurance contracts written in that state must

provide covered persons the option to choose

the specialist of their choice or must provide

that the services of a particular specialist

footing, for Medicare reimbursement purposes, with those fur-

by ophthalmologists, to the extent that the services fall

the lawful scope of the practice of optometry. Thus the

amendment firmiy established a federal statutory policy of non-

fofeshadowed, with respect to the policy of nondiscrimination

and freedom of choice, by two items of earlier legislation relating

to federal employees (P.L. 93-363, adding what is now 5 U.S.C.

~§8902(k)), and P.L. 93-916, amending 5 U.S.C. §8101(2) and (3)),

which were enacted in 1974 by the same Congress which enacted

ERISA. The federal statutory policy is fully consistent with,and

is based on comparable policy considerations as, the State free-

dom of choice laws.

must be covered by the insurance contract i

that patient chooses to go to that eso» to

It is clear that ERISA does not preempt such

a law, which does not require that particular

benefits be provided and therefore does not

cause any cost-creating State law conflicts

that preemption was intended to prevent. For

example, a State law requiring that podiatr-

ist, chiropractor, or optometrist services be

covered by health insurance contracts if a

person chooses to have a particular service

performed by a podiatrist, chiropractor, or

an optometrist, is not preempted.”

We recognize that the views of a later C

such matters are not necessarily cutedinn oe

Mackey, supra, 486 U.S. at 839-840: United States v.

Monsanto, 491 U.S. 600, 610 (1989). But the foregoing

ny ae from the pertinent Congressional leader.

+ 4 maga Patan, | confirmatory support to AOA’s

position on this precise issue. Compare Gozlon-Peretz

a" States, 498 U.S. , 111 S.Ct. 840. 847

CONCLUSION

For the reasons we have summarized, the judgment

should be reversed. In any event—and no matter how

this Court decides to deal with the issues raised—the

Court is urged to avoid any decision route which

would impair or cast a cloud upon any of the State

freedom of choice legislation which is so important

to the Nation’s welfare.

Respectfully submitted,