# Petition for Writ of Certiorari — Gobeille v. Liberty Mut. Ins. Co., 135 S. Ct. 885 (2014) (No. 14-181) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0342%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2014 ## Text 14-181] In The Supreme Court of the Anited States + ALFRED J. GOBEILLE, IN HIS OFFICIAL CAPACITY AS CHAIR OF THE VERMONT GREEN MOUNTAIN CARE BOARD, Petitioner. v. LIBERTY MUTUAL INSURANCE COMPANY, Respondent. ¢ On Petition For Writ Of Certiorari To The United States Court Of Appeals For The Second Circuit ° PETITION FOR A WRIT OF CERTIORARI ° PETER K. STRIS WILLIAM H. SORRELL STrRIS & MAHER LLP Attorney General 19210 S. Vermont Avenue, BRIDGET C. ASAY Bldg. E Counsel of Record Gardena, California 90248 Assistant Attorney General (424) 212-7090 OFFICE OF THE peter.stris@strismaher.com ATTORNEY GENERAL 109 State Street Montpelier, Vermont 05609-1001 (802) 828-5500 bridget.asay@state.vt.us —_—__ —— COCKLE LEGAL BRIEFS (800) 225 6964 WWW COCKLELEGALBRIEFS COM i QUESTION PRESENTED Vermont, like many other States, requires health care providers and health care payers to provide claims data and related information to the State’s health care database. The law applies to all public and private entities that pay for health care ser- vices, including insurers, government programs, and third-party administrators. The State relies on the database to inform health care policy. The question presented is: Did the Second Circuit — in a 2-1 panel decision that disregarded the considered opinion advanced by the United States as amicus — err in holding that ERISA preempts Vermont’s health care database law as applied to the third-party administrator for a self-funded ERISA plan? ii PARTIES TO THE PROCEEDING Petitioner Alfred J. Gobeille, in his official capacity as Chair of the Green Mountain Care Board, has been substituted for Commissioner Susan L. Donegan, who was the appellee in the court of ap- peals. See Supreme Court R. 35.3. Chair Gobeille has been substituted because the Vermont Legislature shifted responsibility for the unified health care data- base to the Green Mountain Care Board, effective June 7, 2013. 2013 Vt. Acts & Resolves, No. 79, § 40. The original defendant in the district court was Commissioner Stephen W. Kimbell. Commissioner Donegan was substituted as a party when she re- placed Commissioner Kimbell in office. The respondent, Liberty Mutual Insurance Company, was the appellant in the court of appeals and the plaintiff in the district court. ili TABLE OF CONTENTS Page QUESTION PRESENTED.................cccccceseeceeeeees i PARTIES TO THE PROCEEDING ..................... ii Ne Ee GF IE BED cr ccccccssccccessccccccecoccscese vi ET 1 SEE a 2 I scunenuoeny 2 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED .................cccc00eeee0000 3 EERE REE 4 REASONS FOR GRANTING THE WRIT ........... 13 I. The decision below is an unprecedented expansion of ERISA preemption that conflicts with this Court’s decisions in Travelers, Dillingham, and De Buono....... 16 A. Travelers and De Buono narrowed ERISA preemption by focusing on Congress’s intent and reaffirming the presumption that Congress does not intend to displace state law in areas traditionally regulated by the States... 16 B. The lower court departed from these settled principles and adopted a broad interpretation of ERISA preemption that directly conflicts with this Court's lac ace cae ecnalbeeebiddanehembidatens 18 iv TABLE OF CONTENTS - Continued Page Il. The Second Circuit’s unduly broad pre- emption holding treads on state and federal interests and is an important issue wor- thy of this Court’s immediate review ........ 25 A. The lower court’s unwarranted expan- sion of ERISA preemption is a matter of exceptional importance to state legislators and regulators ................... 26 B. The U.S. Department of Labor’s ap- pearance as an amicus in the court of appeals confirms that the scope of ERISA preemption is a pressing and important issue for the federal gov- SEES ESE a ae eA 2 LOE OE 35 2 ean eee eee 38 APPENDIX: Opinion of the United States Court of Appeals for the Second Circuit, Liberty Mut. Ins. Co. v. Donegan, No. 12-4881-cv (Feb. 4, 2014)......App. 1 Opinion and Order of the United States Dis- trict Court for the District of Vermont, Liber- ty Mut. Ins. Co. v. Donegan, No. 2:11-cv-204 Se We ihe saitcsieshcliltinacsiaicereieliidabamabeliiccisna App. 48 Order of the United States Court of Appeals for the Second Circuit, Liberty Mut. Ins. Co. v. Donegan, No. 12-4881 (May 16, 2014).......... App. 81 Vv TABLE OF CONTENTS -— Continued Page Statutory Provisions Involved........................... App. 83 A) Eee eae App. 83 Vt. Stat. Amm. tit. 18 § O41 ...........0...0.cccccsscee App. 91 Vt. Stat. Ann. tit. 18 § 9410... App. 92 Vt. Stat. Ann. tit. 18 § 9410 [prior to 2013 I eitrchennsndcentniemcssnsasencunsseccnintduninnnes App. 99 Regulation H-2008-01 .................cccccccceeeseeeee App. 107 vi TABLE OF AUTHORITIES Page CASES Assoc. Builders & Contractors v. Mich. Dep't of Labor, 543 F.3d 275 (6th Cir. 2008)............0........... 35 Boggs v. Boggs, 520 U.S. 833 (1997) .............ccccceceeeeee 24 Boyle v. Anderson, 68 F.3d 1093 (8th Cir. 1995)........ 33 Cal. Div. Labor Standards Enforcement v. Dillingham Constr., 519 U.S. 316 (1997) ....... passim De Buono v. NYSA-ILA Med. & Clinical Servs. Fund, 520 U.S. 806 (1997)..............ssccsccsssserees passim Hillsborough Cnty. v. Automated Med. Labs., Ee SIs Ce Ie Ce ceaenesietatiinattiicdsindiatinasetioneniia 1 Mackey v. Lanier Collection Agency, 486 U.S. | ____ SEIER SAIS AE IEREEHCALC ROCRO On OS 23 N.J. Carpenters & Trs. v. Tishman Constr. Corp., No. 13-3005, 2014 WL 3702591 (3d Se i i icticncisericsinstensicintecmammetintinesiiiinntiins 34, 35 N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. IIIT sis icchctsdechdtncidnatindiediailelseibehhanlciitiaiidaiaaaa passim Self-Ins. Inst. of America, Inc. v. Snyder, No. 12-2264, 2014 WL 3804355 (6th Cir. Aug. 4, Bei huniinnscsdsentntonnsnstiandeniidinidneniinummeininenennnnnts passim Thiokol Corp. v. Roberts, 76 F.3d 751 (6th Cir. ciel ieee teases ela ihlaianiiiaasin bone 33 Wright Elec., Inc. v. Minn. State Bd. of Elec., 322 F.3d 1026 (Oth Cir. 2008) ........0.0cccccsssccccssesesees 34 Wyeth v. Levine, 555 U.S. 555 (2009) .............ccccceeeeees 17 vil TABLE OF AUTHORITIES — Continued Page CONSTITUTION, STATUTES, REGULATIONS AND RULES Federal U.S. Const.: Art. VI, cl. 2 (Supremacy Clause) ......................0+. 2 I al 2 I i aa ata t 33 | ESERIES C Cuneo on emer, eee Cees passim State yO i sccccscisicasssessieieinsienennnin’ 27 Conn. Gen. Stat. § 19a-644.................cccccsseseesessenees 32 I, Gs Ce OF I ciciccsccncsestnsesiascsvenecesctes 32 oe EE eee cee nS ae 32 I I 32 oS EES Rae RE ee 34 Conn. Gen. Stat. § 380-1091 .....................c.cceecceseees 27 Se is MIG II CII cncrdinstnisccicssnittscctivonisiososadons 32 ne a A Bt i iicininssicinencesesdidaniocnsonienie 27 Me. Rev. Stat. Ann. tit. 22, § 8703............00.0.0000... 7 Me. Rev. Stat. Ann. tit. 22, § 8704......................... 27 Md. Code Ann., Health-Gen. § 19-133.................... 27 Mass. Gen. Laws Ann. ch. 12C....................ccceeeeeeees 27 SO eS Ss eee 27 vill TABLE OF AUTHORITIES — Continued Page N.H. Rev. Stat. Ann. § 420-G:1l]e-a .............. ee 27 8S nen 34 N.Y. Pub. Health Law § 2816 .......................ssssseeee 27 2p eee 27 OR 27 ee, Ce ee. Be ncecccecsecevinsnrecevsescessoessetd 27 eee 32 _ & FE neee anne 32 Utah Code Ann. § 26-33a-106.1..............::cccceeeeceeees 27 2013 Vt. Acts & Resolves, No. 79...............ccccsecseeeeees 5 We, Be, Bt, GER, Gy BH Gee ceccccnncnsesocesensesvecsssseenssennes 5 8 PS (78 ee 32 ie 8 OO ee 5 8 FO 8 ee 5, 6 LL 5, 6 ON GE" SS 4 Vu, Beet. Amam. O66. BB, B DGGE ccccccccvesesecssscscevcescesees 32 3 FF Se BS Re passim 3 FF 8 NR en 5 pe a 8 8 ean 27 Be es NO I oicccsecsncvsesensncssccessccerecesconscnsees 27 Cal. R. Prof. Conduct, Rule 4-100........................64. 34 ix TABLE OF AUTHORITIES -— Continued Page N.Y. Comp. Codes R. & Regs, tit. 10, § 440.1 I ceneincncncncenbicsaissigenenintaisiinninininaainivtesinaanenes 32 ke Ba ern 34 Mamalation FE-BOOS-O1 .....cccorcscssesscsccccessoccseees 3, 6, 7, 8 Vermont Early Childhood Program Licensing Regulations, § III(C) (Policies, Procedures, Records and Reports), available at http://def. vermont.gov/sites/dcf/files/pdf/cdd/care/Early_ Se I cnicstisnennscsbatnnseterenenscinnsonne 34 Vt. R. Mandatory Continuing Legal Educ., SOUT siuhinbscuspriatabsmncabianendasenionannddsadecdeideadesiiphitiledinnhetiones 34 OTHER MATERIALS American Bar Association, Mandatory CLE, http://www.americanbar.org/cle/mandatory_cle. html (last visited Aug. 3, 2014) .................:cccceeees 34 CMS and Green Mountain Care Board, Data Use Agreement (No. 25534), available at http:// gmcboard.vermont.gov/sites/gmcboard/files/ CMS_DUA_%2025534_SIGNED_Attachment_ Se STEN Uecspiiiittiineriisrniniiahiaiddanadeniaisitiiaiteanimnnisidtlines 22 Kaiser Family Foundation, Employer Health Benefits 2013 Annual Survey, available at http://kff.org/private-insurance/report/2013- employer-health-benefits/ ...................cccccceeseeeeeeeeees 30 X TABLE OF AUTHORITIES — Continued Page Chris Kardish, More States Create All-Payer Claims Databases, Governing (Feb. 4, 2014), available at http://www.governing.com/topics/ health-human-services/gov-states-serious- i iieicnsccensrdsocnnncsnssctssesaccessiente 28 Maine HealthCost, https://mhdo.maine.gov/ healthcost 2014/ (last visited Aug. 3, 2014) ........... 29 Medscape, State CME Requirements, http:// www.medscape.org/public/staterequirements ee I Gt. BD eccinceicncnnisnncsesncsnedhonnepecessa 34 Patrick B. Miller et al., State Coverage Initia- tives, All-Payer Claims Databases: An Over- view for Policymakers (May 2010), available at http://www.statecoverage.org/files/SCI_AIl_ Payer_Claims_ReportREV.pdf.................... 27, 28, 29 New Hampshire HealthCost, http://www. nhhealthcost.org/ (last visited Aug. 3, 2014).......... 29 Office of the Actuary, Centers for Medicare & Medicaid Services, National Health Expendi- tures Tables, available at http://www.cms. gov/Research-Statistics-Data-and-Systems/ Statistics-Trends-and-Reports/NationalHealth ExpendData/Downloads/tables. pdf ..................00006 28 Jo Porter et al., APCD Council, The Basics of All-Payer Claims Databases (January 2014), available at http://www.apcdcouncil.org/sites/ apcdcouncil.org/files/The%20 Basics%20o0f % 20All-Payer%20Claims%20 Databases. pdf......27, 28 xi TABLE OF AUTHORITIES — Continued U.S. Government Accountability Office, Health Care Price Transparency (September 2011), available at http://www.gao.gov/assets/590/ Ri eas AA U.S. Government Accountability Office, State and Local Governments’ Fiscal Outlook (April 2012 Update), available at http:// www.gao.gov/assets/590/589908. pdf.................. Utah All Payer Claims Database: Description and Background, http://health.utah.gov/hda/ apd/about.php (last visited Aug. 3, 2014).......... Christine Vestal, Can Claims Data Crack the Health Care Cost Riddle? USA Today (June 17, 2014), available at http://www. usatoday.com/story/news/nation/2014/06/17/ stateline-health-care-claims-data/106655777/.... Page we 29 1 Alfred J. Gobeille, as Chair of the Vermont Green Mountain Care Board, respectfully petitions for a writ of certiorari to review the judgment of the Unit- ed States Court of Appeals for the Second Circuit in this case. + INTRODUCTION Health care policy is a pressing concern at every level of government. Many States, including Vermont, rely on health care databases for accurate, complete information to support, inform, and test health care policies. The Second Circuit’s unjustified expansion of ERISA preemption in this case threatens these im- portant tools adopted by sixteen States. And the panel majority’s reasoning — that state recordkeeping or information-gathering requirements of any kind intrude on core ERISA concerns — applies far more broadly, creating uncertainty about a wide range of health and safety regulations. In our federal system, the “regulation of health and safety matters is primarily, and historically, a matter of local concern.” Hillsborough Cnty. v. Auto- mated Med. Labs., Inc., 471 U.S. 707, 719 (1985). This Court cautioned nearly twenty years ago that ERISA was not intended to displace the States’ authority over “general health care regulation.” N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 661 (1995). The Second Circuit disregarded this Court’s direction. It 2 adopted an expansive view of ERISA preemption that conflicts with this Court’s holdings and substantially undermines the States’ historic police powers. The States’ interests in pursuing their chosen policies, and the harm to those interests caused by the lower court’s ruling, strongly support immediate review by this Court. e OPINIONS BELOW The opinion of the court of appeals (App. 1-47) is reported at 746 F.3d 497. The memorandum opinion and order of the district court (App. 48-80) is not reported, but is available at 2012 WL 5471225. ° JURISDICTION The judgment of the court of appeals was entered on February 4, 2014. Petitioner filed a timely petition for rehearing en banc on February 18, 2014. The petition for rehearing was denied on May 16, 2014. App. 81-82. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1). ° 3 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The Supremacy Clause of the U.S. Constitution provides: This Constitution, and the Laws of the Unit- ed States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary not- withstanding. U.S. Const. art. VI, cl. 2. The “other laws” provision of the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1144, is set forth at App. 83-90. Vermont’s health care database statute, Vt. Stat. Ann. tit. 18, § 9410, is set forth at App. 92-99. The Appendix also includes the prior version of the stat- ute, before a 2013 amendment that shifted responsi- bility for the database to the Green Mountain Care Board. App. 99-106. The Regulation that governs the database, Regu- lation H-2508-01, is set forth at App. 107-41. The appendices to the Regulation (which include charts, tables, and forms) are available online at http:// gmcboard.vermont.gov/sites/gmcboard/files/REG_H- 2008-01.pdf. 4 STATEMENT 1. Vermont's “unified health care database” collects critical information that informs the State’s health care policy, including its policy “to ensure that all residents have access to quality health services at costs that are affordable.” Vt. Stat. Ann. tit. 18, § 9401(a) (App. 91); ic’. § 9410(a)(1) (App. 92). The database contains information supplied by health care providers and health care “payers” — that is, government agencies, insurers, and similar entities that pay for health care services. Id. § 9410(c), (h), (j) (App. 94-99). The purposes of the database include: (A) Determining the capacity and distribu- tion of existing resources. (B) Identifying health care needs and in- forming health care policy. (C) Evaluating the effectiveness of inter- vention programs on improving patient out- comes. (D) Comparing costs between various treatment settings and approaches. (E) Providing information to consumers and purchasers of health care. (F) Improving the quality and affordability of patient health care and health care cover- age. Id. § 9410(a)(1A)-(F) (App. 92). 5 Vermont’s Green Mountain Care Board adminis- ters the database, known as VHCURES.' The Board was created in 2011 to, among other things, improve the health of Vermont residents; reduce the growth of health care costs while protecting access to health care and quality of care; and simplify health care financing and delivery. Vt. Stat. Ann. tit. 18, § 9372. The Board has a broad array of regulatory and innovative responsibilities, including administering Vermont’s health care expenditure analysis, id. §9375a; approving hospital budgets, id. § 9375(7); overseeing payment reform pilot projects, id. §§ 9375(1), 9377; approving health insurance rates, id. § 9375(6); reviewing applications for certificates of need for new health care projects, id. § 9375(b\8); and evaluating the quality of Vermont's health care system, id. § 9375(10). The Board maintains and uses the health care database to “carry out [its] duties.” Jd. § 9410 (App. 92). For example, it uses the data to inform its review of health insurance rates and hospital budgets. Vt. Stat. Ann. tit. 8, § 4062; Vt. Stat. Ann. tit. 18, §§ 9375(b)(6)-(7), 9456. The Board also relies on the data for oversight and evaluation of health care ’ The Vermont Legislature shifted responsibility for the database from the Department of Financia) Regulation to the Green Mountain Care Board during the litigation. 2013 Vt. Acts & Resolves, No. 79, § 40. 6 payment and delivery system reforms. /d. §§ 9375(b\(1), 9377. The database statute requires “[hJealth insurers, health care providers, health care facilities, and governmental agencies” to “file reports, data, sched- ules, statistics, or other information determined by the Board to be necessary to carry out the purposes” of the law. Jd. § 9410(c) (App. 94). For this purpose, “health insurer” includes “any third party adminis- trator, any pharmacy benefit manager, any entity conducting administrative services for business, and any other similar entity with claims data, eligibility data, provider files, and other information relating to health care provided to Vermont resident(s].” Jd. § 9410G)1B) (App. 98). The implementing rule notes that the term “may also include, to the extent permitted under federal law, any administrator of an insured, self-insured, or publicly funded health care benefit plan offered by public and private entities.” Regulation H-2008-01, §3(X) (App. 112-13). Only insurers with 200 or more covered members living in Vermont (or receiving covered services in Vermont) must provide information to the database. /d. § 3(Ab) (App. 113). State Regulation H-2008-01 (App. 107-41) sup- plies the details of database administration.’ The rule * Reg. H-2008-01, reprinted at App. 107-41, was promulgat- ed by the Vermont Department of Financial Regulation, which previously administered the database. The regulation remains in effect. 7 sets forth “requirements for the submission of health care claims data, member eligibility data, and other information relating to health care provided to Ver- mont residents or by Vermont health care providers.” Id. § 1 (App. 107). The rule also provides “conditions for the use and dissemination of such claims data.” Id. Information is collected and maintained so as to protect personal privacy. The statute requires compli- ance with the federal Health Insurance Portability and Accountability Act (HIPAA), see Vt. Stat. Ann. tit. 18, § 9410(h\2) (App. 96), and mandates that confi- dential information be “filed in a manner that does not disclose the identity of the protected person.” Jd. § 9410(e) (App. 94-95). And it prohibits public disclo- sure of “direct personal identifiers,” including names, addresses, and Social Security numbers. /d. § 9410(hX3)\D) (App. 97-98). The statute also calls for a confidentiality code and penalizes violation of confidentiality requirements. Jd. § 9410(f), (g) (App. 95). The regulation provides standards for code and encryption requirements, Reg. H-2008-01, § 5(A\(5) (App. 119-21), and restricts submission of “direct personal identifiers,” id. § 7(A\(5) (App. 128-29). As permitted by HIPAA and these confidentiality requirements, the Board may provide access to data “as a resource for insurers, employers, providers, purchasers of health care, and state agencies to continuously review health care utilization, expendi- tures, and performance in Vermont.” Vt. Stat. Ann. tit. 18, §9410(h\3B) (App. 97). The regulation 8 carefully delineates data sets that are publicly avail- able, data that may not be disclosed, and data that is available to researchers that agree to protect confi- dentiality and control access. Reg. H-2008-01, § 8 (App. 130-39). 2. Respondent Liberty Mutual is an insurance company based in Massachusetts. Liberty Mutual provides health care for about 80,000 employees, retirees, and their families through a self-funded plan governed by ERISA. Liberty Mutual is the “named fiduciary” and “plan administrator” for ERISA pur- poses. App. 7-8, 50. Liberty Mutual has employees and does business in Vermont. Its plan provides benefits for 137 Ver- mont residents. App. 7, 50. Because of its small number of Vermont participants, Liberty Mutual itself is not required to provide information for Ver- mont’'s database. App. 8, 58. Liberty Mutual, however, contracts with a third-party administrator, Blue Cross Blue Shield of Massachusetts, to administer the plan. App. 8, 50-51. Blue Cross “processes medical claims ... , receives participants’ confidential medical records and generates claims data.” App. 50-51. Blue Cross provides or administers benefits for about 7,000 Vermonters, including Liberty Mutual’s plan partici- pants, Ct. App. J.A. 288, so Blue Cross is obligated to provide its data to Vermont. App. 8. It provides that information for other self-funded ERISA plans. App. 72-73 n.5. 9 Vermont's Department of Financial Regulation (previously responsible for the database) subpoenaed Blue Cross in August 2011, seeking claims data and other required information for the database. App. 8-9. Liberty Mutual directed Blue Cross not to report information for its beneficiaries. Blue Cross complied with the subpoena in all other respects, but did not submit data for Vermont participants in Liberty Mutual’s plan. App. 9, 56. 3. Liberty Mutual then filed this lawsuit, claim- ing that ERISA preempts any requirement that its third-party administrator provide information for Vermont’s health care database. App. 9, 48, 56. The State moved to dismiss for lack of standing and failure to state a claim; Liberty Mutual moved for summary judgment. App. 9, 49. With the agreement of the parties, the district court treated the motions as cross-motions for summary judgment. /d. In a written decision, the district court rejected Liberty Mutual’s preemption claim and granted judgment to the State. App. 48-80. The district court first held that Liberty Mutual had standing. App. 61. Although Liberty Mutual had no independent obligation to provide information to the database, the regulation required Blue Cross to provide information for Liberty Mutual’s plan. App. 58. The court reasoned that Liberty Mutual was “subject to regulation” through the State’s regulation of Blue Cross, the third-party administrator. App. 59. 10 Turning to Liberty Mutual’s claim of preemption, the district court noted that a “statute that operates in the health care field will receive the benefit of the presumption against preemption, even if it does not directly regulate health care providers or services.” App. 65. The court then held that Liberty Mutual did not “overcome the presumption against preemption.” App. 64-66, 79. First, the court held that the database statute does not have a “reference” to ERISA plans. App. 69. “Vermont's statute and regulation do not act immedi- ately and exclusively upon ERISA plans, nor is the existence of ERISA plans essential to their opera- tion.” App. 69. As the court explained, the law re- quires numerous entities, including insurers and providers, to supply information to the database. /d. Second, the court concluded that the database statute does not have an impermissible “connection with” an ERISA plan. App. 70-78. After surveying this Court’s decisions and relevant circuit precedent, the district court emphasized that Vermont’s law: (1) did not “attempt to control, supersede or interfere with the operation of an ERISA plan”; (2) “has no effect whatsoever on the core relationships that ERISA was designed to protect — those between participants, beneficiaries, administrators and employers”; and (3) has “no effect whatsoever on the core ERISA func- tions — such as processing claims or disbursing bene- fits.” App. 79. 11 The court recognized that even a generally appli- cable law might be preempted if it “creates an eco- nomic effect so acute as to dictate certain administrative choices.” App. 72. Here, however, Liberty Mutual had no reporting obligations at all, and there was “no evidence” that its third-party administrator, Blue Cross, was “laboring under any sort of burden” in complying with the law. App. 72 n.5. Blue Cross provided the information for other ERISA plans. App. 73 n.5. Liberty Mutual did “not submit{[] any information about any actual burden suffered by itself or [Blue Cross! in producing this information.” Jd. 4. On appeal, the Second Circuit reversed in a split decision. App. 1-47. While agreeing with the district court that Vermont’s statute and regulation “lack ‘reference to’ an ERISA plan,” App. 23 n.9, the majority held that Vermont’s law has an impermissi- ble “connection with” ERISA plans. App. 23. In a footnote, the majority concluded that Vermont's health care database law was not an exercise of “the states’ historic police powers” and declined to apply the presumption against preemption. App. 18 n.8. The court viewed “reporting” as a core ERISA concern that is undermined by any state requirement for “plan record-keeping, and filing with a third party.” App. 23-24. It emphasized that Vermont's database “is called the ‘Vermont Healthcare Claims Uniform Reporting and Evaluation System.’” App. 24. The majority viewed as irrelevant the fact that 12 Vermont's database seeks information unrelated to ERISA’s reporting requirements. App. 24 n.11. The court concluded that, consistent with ERISA, only a “slight reporting burden” would be permissible. App. 24. The majority saw Vermont’s “scheme” as “obviously intolerable,” describing the claims data reporting requirements as “burdensome, time- consuming, and risky.” App. 25. Other than merely citing the regulation, however, the court pointed to no evidence of financial costs or other burdens. The court further reasoned that any “burdens and risks must be multiplied” because of unspecified reporting require- ments in other states. App. 29. The court described Vermont’s detailed confidentiality provisions as “complex but loose” and suggested that the regulation was problematic because it could be changed in the future. App. 27-28. Based on this reasoning, the majority held Ver- mont’s law preempted. App. 23-29. It reached this conclusion without addressing the United States Department of Labor’s support, as amicus curiae, for the district court’s decision and Vermont’s position. Judge Straub dissented. App. 30-47. The dissent sharply criticized the majority for failing to apply the presumption against preemption. App. 33-34. Judge Straub also pointed out that the majority’s descrip- tion of Vermont's reporting requirement as “time- consuming and risky” was “pure speculation.” App. 46. “There is no evidence to support such a finding.” Id. 13 The dissent reasoned that Vermont’s health care database is “wholly distinct” from ERISA’s reporting requirements and seeks “after-the-fact information which plan administrators ... already have in their possession.” App. 38, 39. “The Vermont statute regu- lates health care within that state, while imposing a purely clerical burden on ERISA plans.” App. 46. The law “does not hinder the national administration of employment benefit plans” or require any “distinction in benefits between Vermont and any other state.” App. 44. For the dissent, that “end[ed] the inquiry.” Id. 5. Vermont filed a timely petition for rehearing en banc, which was denied on May 16, 2014. App. 81- 82. + REASONS FOR GRANTING THE WRIT This Court should grant review to address the Second Circuit’s broad and unprecedented expansion of ERISA preemption. The lower court’s decision sharply conflicts with this Court’s ERISA jurispru- dence. It will have a profound impact on health care regulation in sixteen States with programs like the one held preempted here. And because the Second Circuit has introduced uncertainty into an important area of the law, its decision, if left in place, will have a substantial impact on state and federal regulatory interests. 14 1. The lower court’s ruling is not merely an erroneous application of the law. The Second Circuit embraced an expansive view of ERISA preemption that this Court — after many years and countless ERISA cases — firmly rejected in New York State Conference of Blue Cross & Blue Shield Plans uv. Travelers Ins. Co, 514 U.S. 645, 654-56 (1995). Ver- mont’s database statute is a generally applicable law through which the State obtains information from the health care industry to develop policies that support the health and well-being of its citizens. It is not targeted at ERISA plans. It does not regulate the benefits provided, plan governance or finances, or the relationship between the plan and its participants. It is therefore not preempted by ERISA. The Second Circuit held otherwise only by disregarding settled principles — including the scope of the States’ historic police powers and the presumption against preemp- tion. The unacceptable and irreconcilable conflict with this Court’s precedents warrants immediate review, a conclusion supported by a recent Sixth Circuit decision “disagreeling]” with the Second Circuit’s “literal approach to [ERISA] preemption,” see Self-Ins. Inst. of America, Inc. v. Snyder, No. 12- 2264, 2014 WL 3804355, at *7 (6th Cir. Aug. 4, 2014) (hereinafter “SIJA”}. 2. The importance of the issue presented fur- ther justifies granting the petition. The decision below undermines efforts by at least sixteen States — including all three States in the Second Circuit — to create and use comprehensive health care databases. 15 The breadth of the lower court’s decision also casts a shadow over a wide range of other state regulations. In contrast to this Court’s holdings, which recognize that States may permissibly impose administrative costs and burdens on ERISA plans, the Second Cir- cuit has deemed routine recordkeeping and submis- sion of information to be a “core” ERISA concern. App. 23-24. The decision thus provides a basis for challeng- ing state health care regulations, taxes, licensing, and safety rules — all of which typically require recordkeeping and reporting of compliance infor- mation. The lower court’s ruling treads on both state and federal interests. The United States Department of Labor voluntarily participated as amicus curiae in the court of appeals and supported the district court’s decision and Vermont’s position. Despite the Depart- ment’s recognized expertise in ERISA — and its ad- ministration of ERISA’s reporting requirements — the 2-1 panel decision of the Second Circuit rejected (without any discussion whatsoever) the Depart- ment’s considered position. The Department’s deci- sion to participate as an amicus confirms that this case — and the scope of ERISA preemption generally — is a matter of pressing importance to the federal government as well as the States. 16 I. The decision below is an unprecedented expansion of ERISA preemption that con- flicts with this Court’s decisions in Trav- elers, Dillingham, and De Buono. This Court has repeatedly disavowed the “expan- sive and literal” approach to ERISA preemption that the 2-1 panel decision of the Second Circuit adopted in this case. De Buono v. NYSA-ILA Med. & Clinical Servs. Fund, 520 U.S. 806, 812-14 (1997); see also Travelers, 514 U.S. at 654-56. Instead, this Court’s decisions establish a framework for evaluating claims of ERISA preemption that focuses on the purposes of ERISA and acknowledges the States’ primary role in regulating matters of health and safety. The Second Circuit’s decision marks a clear and unacceptable conflict with this Court’s precedent. A. Travelers and De Buono narrowed ERISA preemption by focusing on Congress’s intent and reaffirming the presumption that Congress does not intend to displace state law in areas traditionally regulated by the States. This Court’s decisions in Travelers and De Buono narrowed and focused the scope of ERISA preemption in three important ways. First, the Court rejected an approach to preemption grounded in “uncritical literalism,” instead directing courts to look to “the objectives of the ERISA statute as a guide to the scope of the state law that Congress understood would survive.” Travelers, 514 U.S. at 656. Given the 17 “frustrating difficulty” of interpreting ERISA’s “un- helpful text,” Travelers and De Buono hold that the preemption inquiry must be guided by ERISA’s underlying objectives and purposes. /d.; De Buono, 520 U.S. at 813. Second, Travelers delineated the key areas in which ERISA preempts state law. The “basic thrust of the preemption clause ... was to avoid a multiplicity of regulation in order to permit the nationally uni- form administration of employee benefit plans.” Travelers, 514 U.S. at 657. Accordingly, ERISA “pre- empt(s] state laws that mandate[] employee benefit structures or their administration.” /d. at 658. Preempted state laws include coverage mandates, anti-subrogation rules, alternative enforcement mechanisms, and laws affecting benefit calculations. Id. at 657-58. Later cases reiterated this core concern with state laws that “require[] employers to provide certain benefits” or govern the calculation of benefits. De Buono, 520 U.S. at 815; see also Cal. Div. Labor Standards Enforcement v. Dillingham Constr., 519 U.S. 316, 328 (1997). Third, the Court “unequivocally concluded” that ERISA’s preemption clause does not modify the pre- sumption against preemption of state law. De Buono, 520 U.S. at 813. The Court explained in Travelers that it “never assume{s] lightly that Congress has derogat- ed state regulation.” 514 U.S. at 654; see also Wyeth v. Levine, 555 U.S. 555, 565 (2009) (describing the presumption against preemption as a “cornerstone” of the Court’s preemption jurisprudence). Nothing in 18 ERISA “indicates that Congress chose to displace general health care regulation, which historically has been a matter of local concern.” Travelers, 514 U.S. at 661. ERISA accordingly does not preempt “‘myriad state laws’ of general applicability that impose some burdens on the administration of ERISA plans.” De Buono, 520 U.S. at 815 (quoting Travelers, 514 U.S. at 668); see also Dillingham, 519 U.S. at 333-34. These principles have provided direction to the States and to the lower courts for almost 20 years. Claims of ERISA preemption “generated an ava- lanche of litigation” in the years after ERISA’s adop- tion. De Buono, 520 U.S. at 808-09 n.1. De Buono was the Court’s sixteenth ERISA preemption case and the third case just that term. See id. The series of deci- sions in Travelers, De Buono, and Dillingham cabined ERISA preemption to a reasonable scope, and gave state policymakers necessary guidance on the line between federal and state authority. As explained below, the Second Circuit in this case departed so substantially from this controlling precedent that its decision creates an unacceptable degree of confusion and uncertainty. B. The lower court departed from these settled principles and adopted a broad interpretation of ERISA preemption that directly conflicts with this Court’s holdings. As the United States argued below, Vermont’s law is not preempted because it “does not regulate the 19 structures or core functions of ERISA plans.” U.S. Ct. App. Br. 11. The Second Circuit concluded otherwise only by disregarding this Court’s teachings about the scope of ERISA preemption. 1. The Second Circuit engaged in precisely the kind of rigid, literal analysis that this Court disa- vowed in Travelers and De Buono. The panel majori- ty’s decision was predicated on its view that, because ERISA governs plan reporting, any type of state reporting requirement must intrude on a core ERISA concern. Consistent with that literal approach, the court emphasized that Vermont’s law requires Liberty Mutual’s third-party administrator to “report” claims data for the health care database. App. 23-24. But Vermont’s law does not intrude on an area of core ERISA concern merely because it seeks information from the plan administrator. This Court explained in Dillingham that “[iJn enacting ERISA, Congress’ primary concern was with the mismanagement of funds accumulated to finance employee benefits and the failure to pay employees benefits from accumu- lated funds.” 519 U.S. at 326-27 (quotation omitted). It was “/tlJo that end” that Congress “established extensive reporting, disclosure, and fiduciary duty requirements to insure against the possibility that the employee’s expectation of the benefit would be defeated through poor management by the plan administrator.” Jd. (emphasis added) (quotation omitted). The Second Circuit’s myopic focus on the word “reporting,” instead of the purposes of ERISA, conflicts with Travelers and Dillingham. Recognizing 20 these principles established by this Court's prece- dents, the Sixth Circuit in SIJJA “dicagree(d]” with the Second Circuit’s “literal approach to preemption,” SITA, 2014 WL 3804355, at *7. The SIIA court, in line with this Court’s rulings, acknowicdyed ERISA’s principal concern with the financial solvency of plans, and held that Congress did not intend ERISA’s re- porting requirements to “preclude states from enact- ing laws imposing administrative burdens — of any kind — upon plan administrators and sponsors unre- lated to the administration of the plans.” Jd. at *5. Vermont's health care database — as the United States observed in its filing below — is unrelated to ERISA’s core concern with plan administrators’ fiduciary responsibilities to beneficiaries. “The focus and purpose of Vermont’s data collection . . . are quite different” from ERISA’s concerns. U.S. Ct. App. Br. 12. Vermont seeks claims data to improve health care quality, affordability, and effectiveness, Vt. Stat. Ann. tit. 18, § 9410(a) (App. 92), and seeks no information whatsoever about plan funding or governance. By contrast, a plan’s annual report to the Secretary of Labor is “principally concerned with the financial soundness of the plan.” U.S. Ct. App. Br. 12. The Vermont law does not protect beneficiaries or provide them with information; indeed, the law “does not include disclosure requirements affecting the employer- employee or plan-participant relationship.” U.S. Ct. App. Br. 13. Given the sharp disconnect between ERISA’s objectives and the purposes of Vermont’s law, the dissent below aptly observed that the 21 “majority's argument misses the nuance of what ‘reporting’ means in the context of ERISA, and ig- nores the case law’s focus on whether the administra- tion of benefits to beneficiaries is impacted.” App. 32 (Straub, J., dissenting); see also SIJA, 2014 WL 3804355, at *7 (quoting same). 2. The lower court’s analysis also contravenes this Court’s guidance about the types of state laws preempted by ERISA. Together, Travelers, Dilling- ham, and De Buono teach that ERISA’s central con- cern is with state laws that dictate the types of benefits provided by plans or the manner in which plans administer those benefits. Travelers, 514 U.S. at 657-58; Dillingham, 519 U.S. at 328, 333-34; De Buono, 520 U.S. at 815. Vermont’s health care data- base does not touch on these areas. The law “does not meaningfully regulate plans’ benefit programs or affect plans’ administration of benefits.” U.S. Ct. App. Br. 14-15. Instead of recognizing these limits on the scope of ERISA preemption, the Second Circuit panel majority mistakenly focused on the law’s supposed administra- tive burdens. But ERISA does not preempt “‘myriad state laws’ of general applicability that impose some burdens on the administration of ERISA plans.” De Buono, 520 U.S. at 815 (quoting Travelers, 514 U.S. at 668). Administrative cost or burden is relevant only if the burden is “so acute ‘as to force an ERISA plan to adopt a certain scheme of substantive coverage or effectively restrict its choice of insurers.’” De Buono, 520 U.S. at 816 n.16 (quoting Travelers, 514 U.S. at 22 668). As the dissenting opinion concluded, there was “no basis to find that the Vermont statute would cause Liberty Mutual to increase its costs more than a de minimus amount ... much less ... cause a fiduciary to change a plan in any way.” App. 40-41 (Straub, J., dissenting).’ In short, the lower court's decision irreconcilably conflicts with both the reasoning and the results reached in this Court’s precedents. The Court has * The majority's description of the supposed burdens is factually unsupported and wrong. As the district court pointed out, Liberty Mutual submitted no evidence of “any actual burden.” App. 72-73 n.5. On appeal, Liberty Mutual merely asserted that “all regulations have their costs” and claimed that Vermont's law was “per se burdensome.” Liberty Mutual Ct. App. Br. 28. The dissent highlighted Liberty Mutual's failure “to provide any details or showing of the alleged burden,” and sharply criticized the majority for engaging in “pure speculation” on this point. App. 39, 46 (Straub, J., dissenting). As the dissent noted, Vermont's law “asks for after-the-fact information which plan administrators .. . already have” and “by all accounts [Blue Cross] is happy to provide the data ... and .. . does so for other clients.” App. 39 (Straub, J., dissenting). Moreover, while this case was pending on appeal, the federal Centers for Medicare and Medicaid Services (CMS) agreed to provide its claims data to Vermont's database. See Data Use Agreement Between CMS and Green Mountain Care Board (No. 25534), available at http//gmcboard. vermont.gov/sites/gmcboard/files/CMS_DUA_%2 025534_SIGNED_Attachment_A_ExSum.pdf. That agreement confirms the federal government's confidence in Vermont's program, and undercuts any suggestion that the database provides inadequate confidentiality protections. Protecting personal privacy is critical to this program. There was “no evidence” to support a contrary conclusion. App. 46 (Straub, J., dissenting). 23 repeatedly upheld state laws that challengers de- scribed as imposing costs and burdens on ERISA plans. In Mackey v. Lanier Collection Agency, 486 U.S. 825, 831 (1988), the plan administrators com- plained of “substantial administrative burdens and costs” caused by state-law garnishment proceedings. The Court rejected the preemption claim. /d. at 832, 841. In Dillingham, the Court upheld a California law regulating apprenticeship programs, even though the law required a plan to either obtain state approv- al for its program or pay a higher minimum wage to apprentices. 519 U.S. at 319-21, 330-33. And most relevant here, in De Buono the Court held that New York could permissibly tax the gross receipts of a hospital operated by an ERISA plan. 520 U.S. at 814-16. The generally applicable tax was not preempted even though it “increase{d] the cost of providing benefits” and had “some effect” on plan administration. Jd. at 816. Taxation inevitably re- quires “particular form[s) of record-keeping”; like- wise, taxes are potentially “inconsistent” from state to state. See App. 22-23. As the Sixth Circuit noted in SIIA, although “neither Travelers nor De Buono explicitly concerned reporting requirements regard- ing the taxes ... those requirements were essential parts of the tax schemes and drew no comment.” SITA, 2014 WL 3804355, at *6. Moreover, the tax upheld in De Buono directly depleted plan assets. Given this controlling precedent, the Second Circuit erred in holding that ERISA tolerates, at most, only a “slight reporting burden” on plans. App. 24 24. State laws of all kinds, from employment, licens- ing, and taxes to health and safety regulations, require “record-keeping, and filing with a third party.” App. 24. It cannot be that ERISA preempts generally applicable state laws, unrelated to the objectives of ERISA, merely because those laws involve data collection or record-keeping. 3. The Second Circuit’s refusal to apply the presumption against preemption also “flies in the face of clear Supreme Court precedent.” App. 33 (Straub, J., dissenting). In a footnote, the court held that Vermont’s law is not an exercise of the “states’ histor- ic police powers.” App. 18 n.8. “[CJollecting data,” the majority opined, is not “historic” and “health data collection laws do not regulate the safe and effective provision of health care services.” Jd. This squarely conflicts with De Buono. De Buono held that New York’s tax “clearly operates in a field that has been traditionally occupied by the States.” 520 U.S. at 814 (quotation omitted). That was true even though the tax, first adopted in 1990, was a “revenue raising measure, rather than a regulation of hospitals.” Jd. at 809, 814; see also id. at 814 n.10 (fact that tax targets health care industry supports application of the presumption).* * The footnote concluded that “[ijn any event, the Supreme Court has repeatedly found the presumption overcome if the state laws ‘upset the deliberate balance central to ERISA,’ even if those laws ‘implement policies and values lying within the traditiona] domain of the States.’” App. 18-19 n.8 (quoting Boggs (Continued on following page) 25 Given the “considerable burden of overcoming” the presumption, De Buono, 520 U.S. at 814, Liberty Mutual’s failure to prove any cost or administrative burden should have ended the inquiry. See App. 72-73 n.5 (district court); App. 39-41, 44 (Straub, J., dissent- ing). Yet the lower court assumed that Vermont's law was “burdensome” and “obviously intolerable.” App. 25. Its judgment rested on speculation not just about Vermont’s statute but about other states’ laws and ways in which Vermont could change its program in the future. App. 25, 27-29. Consistent with this Court’s precedents, the Second Circuit should have presumed the statute’s constitutionality, not the opposite. Il. The Second Circuit’s unduly broad preemption holding treads on state and federal interests and is an important issue worthy of this Court’s immediate review. The Second Circuit did not merely err in its application of precedent. The lower court returned to an expansive view of ERISA preemption that this Court has disavowed. Its flawed analysis of burden and cramped view of the states’ historic police powers v. Boggs, 520 U.S. 833, 840, 854 (1997)). Nowhere in its analysis, however, does the majority apply the presumption against preemption or explain that the presumption is overcome. The lower court’s holding, as the dissenting opinion recognizes, is that the presumption does not apply. App. 33 (Straub, J., dissenting). 26 will sow confusion and uncertainty. That is especially troubling in this context because, read literally, ERISA’s preemption language suggests “a degree of pre-emption that no sensible person could have intended.” Dillingham, 519 U.S. at 335-36 (Scalia, J., concurring). This Court should grant review to correct the Second Circuit’s broad and unjustified expansion of ERISA preemption. And, as explained below, fur- ther review should be immediate because the Second Circuit’s holding poses a serious threat to important state and federal interests. A. The lower court’s unwarranted expan- sion of ERISA preemption is a matter of exceptional importance to state leg- islators and regulators. The Second Circuit’s ruling threatens to under- mine efforts by at least sixteen States to create and use databases similar to Vermont’s. The breadth of the lower court’s decision also casts a shadow over other state regulatory efforts in a field — health care — that is traditionally and primarily the responsibility of the States. 1. The Second Circuit’s decision in this case undermines a widespread and crucial tool that States use to inform health care policy. At least ten other States have similar programs, known as all-payer 27 claims databases, already in place.’ Five other States are creating databases,’ and many more are consider- ing doing so. Jo Porter et al., APCD Council, The Ba- sics of All-Payer Claims Databases 1 (January 2014).’ Claims databases are increasingly popular because states need “robust information about the costs and performance of their state’s health care delivery sys- tem.” Patrick B. Miller et al, State Coverage Initia- tives, All-Payer Claims Databases: An Overview for Policymakers 2 (May 2010).° These databases “fill critical information gaps” and allow states “to un- derstand the cost, quality, and utilization of health care for their citizens.” Jd.; Porter, supra, at 1. By collecting accurate, complete information about the provision of health care services, States are bringing transparency to the health care market, collecting * Colorado: Col. Rev. Stat. § 25.5-1-204; Kansas: Kan. Stat. Ann. § 65-6804; Maine: Me. Rev. Stat. Ann. tit. 22, §§ 8703, 8704; Maryland: Md. Code Ann., Health-Gen. § 19-133; Massa- chusetts: Mass. Gen. Laws Ann. ch. 12C, § 12; Minnesota: Minn. Stat. Ann. § 623.321; New Hampshire: N.H. Rev. Stat. Ann. § 420-G:1l-a; Oregon: Or. Rev. Stat. § 442.466; Tennessee: Tenn. Code Ann. § 56-2-125; Utah: Utah Code Ann. § 26-33a-106.1. * Connecticut: Conn. Gen. Stat. § 38a-1091; New York: N-Y. Pub. Health § 2816; Rhode Island: R.1. Gen. Laws § 23-17.17-10; Virginia: Va. Code Ann. § 32.1-276.7:1; West Virginia: W. Va. Code § 33-4A-2. ” Available at: http:/www.apedcouncil.org/sites/apedcouncil.org/ files/The%20Basics®200f ®20All-Payer%20Claims%20 Databases. pdf. * Available at: http://www.statecoverage.org/files/SCI_All_ Payer_Claims_ReportREV.pdf. 28 critical cost information, and improving the quality of care. Cost. It is impossible to overestimate the States need for accurate and complete information about health care spending. The “projected growth in health-related costs” is the “primary driver of fiscal challenges for the state and local government sector in the long term.” U.S. Government Accountability Office, State and Local Governments’ Fiscal Outlook 5 (April 2012 Update). Knowledge gaps “limit the ability to identify opportunities to address rising health care costs.” Miller, supra, at 2. A true all- payers claims database provides this critical data. States may use this information to inform budgeting, rate-setting, and other policy decisions, and to measure the impact of reforms and pilot projects. See, e.g., Chris Kardish, More States Create All- Payer Claims Databases, Governing (Feb. 4, 2014);" Miller, supra, at 2, 5; Porter, supra, at 2. * Available at: http://www.gao.gov/assets/590/589908. pdf. National spending on health care reached $2.79 trillion in 2012, more than double the level in 2000. Office of the Actuary, Centers for Medicare & Medicaid Services, National Health Expenditures Tables, Table 1, available at http://www.cms. gov/Research-Statistics- Data-and-Systems/Statistics-Trends-and- Reports/National HealthExpendData/Downloads/tables.pdf. ” Available at: http://www.governing.com/topics/health- human-services/gov-states-serious-about-health-data. html. 29 Transparency. State health care databases are bringing transparency to the health care market- place. Lack of information about cost and quality is a serious problem for consumers, who “generally learn of their health care costs after receiving care, such as when they receive a bill.” U.S. Government Ac- countability Office, Health Care Price Transparency 2 (September 2011). Now, with a few keystrokes, consumers in some states have access to information that used to be burdensome or even impossible to find. Both Maine and New Hampshire, for example, have websites that allow consumers to compare costs across providers.” Other States are planning similar sites. See Christine Vestal, Can Claims Data Crack the Health Care Cost Riddle? USA Today (June 17, 2014) (discussing Utah and Colorado).” Quality of Care. An all-payer claims database is a powerful public health tool. Policymakers can evaluate access to necessary services. Researchers can track chronic disease indicators, evaluate wheth- er clinical care guidelines are met, and study specific problems such as adverse drug reactions and emer- gency room visits. Miller, supra, at 6-8. The data allow States not just to pinpoint problems but to " Available at: http://www.gao.gov/assets/590/585400. pdf. “ See Maine HealthCost, https://mhdo.maine.gov/healthcost 2014/ (last visited Aug. 3, 2014); New Hampshire HealthCost, http://www.nhhealthcost.org/ (last visited Aug. 3, 2014). '* Available at: http://www.usatoday.com/story/news/nation/ 2014/06/17/stateline-health-care-claims-data/10665577/. 30 assess whether proposed solutions are working. This “rich and deep source of health care data”” is a criti- cal resource that States use to protect and improve the health and welfare of their citizens. The Second Circuit’s decision threatens these innovative programs. Self-insured ERISA plans, like Liberty Mutual’s plan, provide coverage to millions of Americans. Nationally, over 60% of workers who receive health coverage through employment are in a self-funded plan. See Kaiser Family Foundation, Employer Health Benefits 2013 Annual Survey, at 176." As the United States explained below, exempt- ing self-insured plans from the database “would leave a large hole in the data collection the state has fash- ioned to further its state healthcare policies” and “seriously stymie Vermont’s efforts to improve medi- cal outcomes for its residents.” U.S. Ct. App. Br. 10. Nothing in ERISA suggests that Congress wanted to create this kind of information vacuum. This important question of ERISA preemption — relevant to at least sixteen States — is worthy of this Court’s immediate review. The decision below does not address a new or emerging legal issue that needs further consideration in the lower courts. Rather, the “ Utah All Payer Claims Database: Description and Background, http://health.utah.gov/hda/apd/about.php (last visited Aug. 3, 2014). * Available at: http://kff.org/private-insurance/report/2013- employer-health-benefits/. 31 Second Circuit disregarded established precedent and returned to an expansive view of ERISA preemption that unacceptably limits state authority. Its decision governs not just Vermont’s program, but also similar databases under development in New York and Connecticut. And all other States must administer (or establish) their programs under the cloud of that decision. The impact on these programs outweighs any negligible benefit from allowing the issue to develop further in the lower courts. Indeed, if this Court denies review, other states may adhere to the Second Circuit’s ruling rather than risk litigation — reducing the likelihood any benefit will be gained from percolation. 2. Review is also warranted because the Second Circuit’s broad holding has repercussions beyond these particular programs. As this Court recognized almost two decades ago, nothing in ERISA “indicates that Congress chose to displace general health care regulation, which historically has been a matter of local concern.” Travelers, 514 U.S. at 661. Yet the Second Circuit essentially held that any state record- keeping or information-gathering requirement in- trudes on a “core” ERISA concern. App. 23-24. Many ordinary state health-care regulations and other health and safety standards require record-keeping and reporting of information. The Sixth Circuit correctly recognized, in SJJA, that such a broad view of ERISA preemption of state reporting requirements as extending to “paperwork” and record preservation is unworkable, and that “ERISA does not reach so 32 far.” SIIA, 2014 WL 3804355, at *6. The Second Circuit’s reasoning in this case creates uncertainty across a wide swath of traditional state regulation. Regulation of hospitals and other health care services. As addressed in De Buono, ERISA plans may operate their own hospitals and health care centers. The provision of health care services is closely regulated by state law and routinely requires recordkeeping and reporting to state regulators. For example, States commonly require hospitals to pro- vide frequent reports on finances, patient census, staffing levels and other quality and _ safety measures.” Under the Second Circuit’s reasoning, these frequent reports would be preempted unless the State shows that the burdens imposed are “slight.” App. 24. Taxation. This Court held in De Buono that an ERISA plan must pay a generally applicable state tax on gross hospital receipts. 520 U.S. at 816. Courts have rejected preemption challenges to other state taxes, including a tax on covered health care claims. In SIJA, the Sixth Circuit rejected an ERISA preemp- tion challenge to Michigan’s tax on paid health care "© See, e.g., Conn. Gen. Stat. § 19a-654 (data submission); id. §§ 19a-644, 19a-649, § 19a-676 (hospital reports); 210 Ill. Comp. Stat. 85/25 (Hospital Report Card Act); N.Y. Comp. Codes R. & Regs, tit. 10, § 440.1 et seq. (hospital annual reports); Tex. Code Ann. § 257.005 (hospital staffing reports); id. § 311.033 (financial and utilization data); Vt. Stat. Ann. tit. 18, §§ 1854, 9405b (hospital reports). 33 claims, because the state law did not alter which benefits were offered, how they were calculated, or to whom they were disbursed, and thus did not interfere with plan administration. SIJA, 2014 WL 3804355, at *3-4. The court also held that the state law reporting and recordkeeping requirements at issue did not create improper administrative burdens for ERISA plans and thus did not conflict with ERISA’s report- ing obligations. Jd. at *4-7."" See also Boyle v. Ander- son, 68 F.3d 1093 (8th Cir. 1995) (rejecting ERISA preemption challenge to provider tax); Thiokol Corp. v. Roberts, 76 F.3d 751 (6th Cir. 1996) (rejecting ERISA challenge to state business tax). Taxes neces- sarily inveive frequent and state-specific recordkeep- ing and reporting requirements — the same type of requirements that the Second Circuit found unac- ceptable in this case. The lower court’s ruling thus creates uncertainty on an issue that was settled by De Buono. Licensing and safety standards. ERISA plans may employ lawyers, to offer “prepaid legal services,” and doctors, to offer medical and surgical care. 29 U.S.C. § 1002(1) (defining employee welfare plan). " The Sixth Circuit’s suggestion that the Vermont database law “actually affects the administration of plans,” SJJA, 2014 WL 3804355, at *7, is unsupported. Further, the Sixth Circuit, like the Second Circuit, offered no support for its conclusion that the creation of a database for the purposes of improving Ver- monters’ health outcomes and controlling the rate of health care cost growth is not an exercise of traditional state concern, and thus not entitled to the presumption against preemption. 34 Doctors and lawyers must comply with state licensing requirements, including reporting and recordkeeping requirements for professional education and client trust funds.” ERISA plans may operate day care centers, id., which must be licensed and maintain detailed records showing compliance with state regulations.” Many ERISA plans run apprenticeship programs, which must satisfy state-law safety stan- dards. See, e.g., Wright Elec., Inc. v. Minn. State Bd. of Elec., 322 F.3d 1025, 1031-32 (8th Cir. 2003) (re- jecting ERISA preemption challenge to state regula- tion mandating supervision of apprentices). The Third Circuit, which recently rejected a preemption challenge to a New Jersey prevailing wage law, noted that the law “require{d] that every contractor and subcontractor keep a record detailing the worker's name, his or her craft or trade, and actual hourly rate of wages paid to each worker.” N.J. Carpenters & Trs. " For doctors, see, e.g., N.J. Stat. Ann. § 45:9-7.1; Conn. Gen. Stat. § 20-10b; see also Medscape, State CME Requirements, http://www.medscape.org/public/staterequirements (last visited Aug. 3, 2014) (collecting requirements by state). For lawyers, see, e.g., Cal. R. Prof. Conduct, Rule 4-100 (recordkeeping and audit requirements for client trust funds); N.Y. R. Prof. Conduct, Rule 1.15 (similar); Vt. R. Mandatory Continuing Legal Educ., § 9 (reporting requirements for continuing legal education); see also American Bar Association, Mandatory CLE, http//www. americanbar.org/cle/mandatory_cle.htm! (last visited Aug. 3, 2014) (collecting education requirements by state). See, e.g., Vermont Early Childhood Program Licensing Regulations, § III(C) (Policies, Procedures, Records and Reports), available at: http://dcf.vermont.gov/sites/dcf/files/pdf/cdd/care/ Early_Childhood_Program.pdf. 35 v. Tishman Constr. Corp., No. 13-3005, 2014 WL 3702591, at *2, 6 (3d Cir. July 28, 2014) (holding that state-law claim under prevailing wage law was not completely preempted by ERISA). Challenges to any of these state laws could easily be recast as objections to reporting or recordkeeping requirements. The Sixth Circuit has observed that there is no “state-law-free zone around everything that affects an ERISA plan.” Assoc. Builders & Contractors v. Mich. Dep't of Labor, 543 F.3d 275, 284 (6th Cir. 2008) (discussing potential consequences of a broad view of ERISA preemption). The Second Circuit’s reasoning, however, risks just that result. And even if other courts ultimately narrow or decline to follow the Second Circuit’s approach in this case, the lower court’s ruling may generate another “avalanche” of ERISA litigation. Cf’ De Buono, 520 U.S. at 809 n.1. The threat of litigation alone burdens States and influences state policy choices. The decision below thus has serious implications for state legislation and regulation far beyond the context of all-payer data- bases. It should not be allowed to stand. B. The U.S. Department of Labor’s ap- pearance as an amicus in the court of appeals confirms that the scope of ERISA preemption is a pressing and important issue for the federal gov- ernment. The fact that the United States participated in this case as amicus curiae and argued against 36 preemption confirms the importance of the issue. The United States Department of Labor administers ERISA, including the law’s reporting requirements. The Department took the unusual step of appearing as an amicus in the court of appeals to defend the decision of the district court. The Department’s amicus filing shows that the scope of ERISA preemp- tion is an important issue for the federal government, as well as the States. The Second Circuit ignored the views of the United States and applied ERISA preemption far more broadly than the Department advocated. The Department, through its Employee Benefit Security Administration, creates and administers reporting requirements for ERISA plans. The Department explained to the court of appeals that Vermont’s law does not conflict with ERISA’s reporting require- ments; that the “focus and purpose of Vermont’s data collection” are “quite different” from ERISA’s finan- cial reporting and disclosure requirements; and thus the database statute “is like any other ‘tenuous, remote or peripheral’ law that requires information from businesses or other entities for regulatory purposes.” U.S. Ct. App. Br. 12 (quoting Travelers, 514 U.S. at 661). Despite the Department’s obvious expertise and interest, the panel majority did not even acknowledge the Department’s position. As the Department’s amicus participation shows, the decision below adversely affects federal as well as state interests. The federal government has a sub- stantial interest in the division of state and federal 37 regulatory authority in areas such as health care. Collecting claims data is not something the Depart- ment does and is not, in the Department’s view, a matter with which ERISA is concerned. The federal government is careful to guard those areas that ERISA shields from state regulation, but it also recognizes the States’ traditional authority over “‘general health care regulation.’” U.S. Ct. App. Br. 10 (quoting Travelers, 514 U.S. at 661). By holding Vermont’s law preempted, the Second Circuit has effectively challenged the Department’s view of the scope and purpose of ERISA’s reporting requirements. SJ The decision below broke sharply with this Court’s controlling precedents, in a way that harms state interests and creates uncertainty for States and lower courts. Its sweeping expansion of ERISA preemption calis for immediate review. : CONCLUSION The petition for writ of certiorari should be granted. Respectfully submitted, PETER K. STRIS Stris & MAHER LLP 19210 S. Vermont Avenue, Bldg. E Gardena, California 90248 (424) 212-7090 peter.stris@strismaher.com August 13, 2014 WILLIAM H. SORRELL Attorney General BRIDGET C. ASAY Counsel of Record Assistant Attorney General OFFICE OF THE ATTORNEY GENERAL 109 State Street Montpelier, Vermont 05609-1001 (802) 828-5500 bridget.asay@state.vt.us App. 1 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2013 (Argued: November 18,2013 Decided: February 4, 2014) Docket No. 12-4881-cv LIBERTY MUTUAL INSURANCE COMPANY, iff-Appellant, -V.- SUSAN L. DONEGAN, IN HER CAPACITY AS THE COMMISSIONER OF THE VERMONT DEPARTMENT OF FINANCIAL REGULATION, Defendant-Appellee. Before: KEARSE, JACOBS, and STRAUB, Cir- cuit Judges. Liberty Mutual Insurance Co. appeals from a judgment entered in the United States District Court for the District of Vermont (Sessions, J.). The district court concluded that the Employee Retirement In- come Security Act of 1974 does not preempt a Ver- mont statute and regulation requiring self-insured employee health plans to report to the state, in speci- fied format, claims data and “other information re- lating to health care.” For the following reasons, we App. 2 reverse and remand with instructions to enter judg- ment for Liberty Mutual. Judge STRAUB dissents in part and concurs in part in a separate opinion. NANCY G. ROSS, McDermott Will & Emery LLP, Chicago, IL (John A. Litwinski, McDermott Will & Emery LLP, Chicago, IL; M. Miller Baker, McDermott Will & Emery LLP, Washington, DC, on the brief), for Appellant. BRIDGET C. ASAY, Assistant Attor- ney General, Office of the Attorney General, Montpelier, VT for William H. Sorrell, Attorney General, State of Vermont, for Appellee. KATHRYN COMERFORD TODD, National Chamber Litigation Center, Washington, DC (Jane E. Holman, National Chamber Litigation Cen- ter, Washington, DC; Carol Connor Cohen and Nancy S. Heermans, Arent Fox LLP, Washington, DC, on the brief), for amicus curiae Cham- ber of Commerce of the United States of America in support of Appellant. MELISSA MOORE, U.S. Department of Labor, Washington, DC (M. Patricia Smith, Solicitor of Labor; Timothy D. Hauser, Associate Solicitor; Na- thaniel I. Spiller, Counsel for Appel- late and Special Litigation, on the App. 3 brief), for amicus curiae Acting Sec- retary of the United States Depart- ment of Labor in support of Appellee. DENNIS JACOBS, Circuit Judge: Liberty Mutual Insurance Co. operates a self- insured employee health plan. A Vermont statute re- quires all “health insurers” (including self-insured plans) to file with the State reports containing claims data and other “information relating to health care.” A State regulation specifies how such information must be recorded and transmitted. When Vermont subpoenaed claims data from the Liberty Mutual plan’s third-party administrator, this suit was commenced in the United States District Court for the District of Vermont (Sessions, -J.). Lib- erty Mutual sought a declaration that the Employee Retirement Income Security Act of 1974 (“ERISA”) preempts the Vermont statute and regulation. The district court granted summary judgment in favor of Vermont. The ERISA preemption clause is not self-reading and ERISA preemption doctrine is not static. The early judicial consensus, based on the broad wording of the preemption clause (and legislative history), was to construe preemption broadly. More recent precedent has pulled back by setting a rebuttable presumption against preemption of state health care regulations. Two constants, however, remain: (1) recog- nition that ERISA’s preemption clause is intended to avoid a multiplicity of burdensome state requirements App. 4 for ERISA plan administration; and (2) acknowledg- ment that “reporting” is a core ERISA administrative function. These two considerations lead us to con- clude that the Vermont law, as applied to compel the reporting of Liberty Mutual plan data, is preempted. We therefore reverse and remand for entry of judg- ment in favor of Liberty Mutual. BACKGROUND I The Vermont statute establishes and provides for the maintenance of “a unified health care database.” Vt. Stat. Ann. tit. 18, §9410(aX1). The database “enable[s]” the State’s Department of Banking, Insur- ance, Securities and Health Care Administration (“Department”)' “to carry out [its] duties ... , includ- ing”: (A) determining the capacity and distribu- tion of existing resources; (B) identifying health care needs and in- forming health care policy; (C) evaluating the effectiveness of inter- vention programs on improving patient out- comes; ' The Department is now called the Department of Finan- cial Regulation. Many of the Department’s health care database responsibilities were recently transferred to Vermont’s Green Mountain Care Board. See id. § 9410. App. 5 (D) comparing costs between various treat- ment settings and approaches; (E) providing information to consumers and purchasers of health care; and (F) improving the quality and affordability of patient health care and health care cover- age. Id. To populate the database, the statute requires “(hjealth insurers, health care providers, health care facilities, and governmental agencies” to “file reports, data, schedules, statistics, or other information,” as the Department deems necessary, at the time and place and in the manner the Department requires. /d. at § 9410(c)-(d). The statute authorizes the Depart- ment to require the filing of “health insurance claims and enrollment information used by health insurers” and “any other information relating to health care costs, prices, quality, utilization, or resources.” Jd. at § 9410(c). Knowing and willful failure to comply is punish- able by penalty of not more than $10,000 per viola- tion. See id. at § 9410(g). In 2008, the Department promulgated a regula- tion to implement the statute and create the Vermont Healthcare Claims Uniform Reporting and Evalua- tion System (the “Reporting System”). See Regulation H-2008-01, 21-040-021 Vt. Code R. § 1 (“Regulation H-2008-01”). The regulation requires reporting of App. 6 myriad categories of claims data. See infra 26-29. “Health Insurers” are required to “regularly submit medical claims data, pharmacy claims data, member eligibility data, provider data, and other information relating to health care provided to Vermont residents and health care provided by Vermont health care providers and facilities to both Vermont residents and non-residents in specified electronic format to the Department for each health line of business ... per the data submission requirements contained in” appendices to the regulation. Regulation H-2008-01 § 4(D). A “{hJjealth insurer” is defined broadly to include “any health insurance company, ... third party ad- ministrator, ... and any entity conducting adminis- trative services for business or possessing claims data, eligibility data, provider files, and other infor- mation relating to health care provided to Vermont residents or by Vermont health care providers and facilities.” Jd. § 3(X). Begging the preemption question, the term “(health insurer” “may also include, to the extent permitted un- der federal law, any administrator of an insured, self- insured, or publicly funded health care benefit plan offered by public and private entities.” Jd. (emphasis added). A health insurer with 200 or more enrolled or covered members in each month during a calendar year is designated a “Mandated Reporter.” Jd. § 3(Ab). All other entities are “Voluntary Reporter(s].” Id. § 3(As). App. 7 The Department makes the collected data “avail- able as a resource for insurers, employers, providers, purchasers of health care, and state agencies to con- tinuously review health care utilization, expenditures, and performance in Vermont.” Vt. Stat. Ann. tit. 18, § 9410(hX3)(B). The Department decides “the extent” of such disclosure “allowed by HIPAA,” the federal Health Insurance Portability and Accountability Act of 1996, id., and maintains the “confidentiality code” by which filed information “is handled in an ethical manner,” id. § 9410(f). “[D]irect personal] identifiers,” such as name, address, and Social Security number, may not be publicly disclosed. Jd. § 9410(h\(3)(D). Sixteen other states collect health care data for their own health care claims databases. J.A. 368-74 (State Health Reporting Laws Summary Table). Data submission requirements vary. Some states provide only for voluntary reporting. See id. Some expressly exclude self-insured employee plan data from their database reporting laws. See id. The majority, how- ever, follow Vermont in requiring such plans to report claims data. See id. II Liberty Mutual Insurance Co. is the administra- tor and named fiduciary of a health plan (the “Plan”) that provides benefits to 137 individuals in Vermont and to over 80,000 individuals nationwide. The Plan is “self-insured” or “self-funded,” i.e., health care claims are paid from Liberty Mutual’s general assets. App. 8 Plan documents provide that the “Plan has been established for the exclusive benefit of Participants and except as otherwise provided ... , all contribu- tions under the Plan may be used only for such pur- pose.” J.A. 39. The documents also represent that medical records, such as those related to risk factor screening, are kept “strictly confidential.” J.A. 71-72. The Plan represents, however, that it “shall comply with all other state and federal law to the extent not preempted by ERISA and to the extent such laws require compliance by the Plan.” J.A. 41. Like many self-insured employer health plans, the Plan uses a third-party administrator (“I'PA”). Blue Cross Blue Shield of Massachusetts, Inc. (“Blue Cross”), as the Plan’s TPA for Vermont participants, does claims-handling: processing, review, and pay- ment. Under its contract with Liberty Mutual, any information transferred to Blue Cross must be used solely for the purpose of administering the Plan, and Blue Cross auditors must guard against unauthorized disclosure of health care information. See J.A. 57-58. Liberty Mutual itself is a Voluntary Reporter because it has fewer than 200 covered members in Vermont (and has presumably decided not to volunteer); but because Blue Cross qualifies as a Mandated Reporter and possesses the Plan’s claims data, the reporting of its data is mandatory. In August 2011, Vermont issued a subpoena de- manding that Blue Cross supply the Plan’s “[elligi- bility files,” “[mJedical claims files,” and “[p]harmacy claims files” and threatened that noncompliance App. 9 might result in fines and a suspension of Blue Cross’s authority to do business. J.A. 24-25. Liberty Mutual instructed Blue Cross not to comply and filed this suit, seeking (1) a declaration that ERISA preempts the Vermont statute and regulation; and (2) an in- junction blocking enforcement of the subpoena. Vermont agreed to stay enforcement of the subpoena pending judicial resolution of the ERISA preemption question. In dueling motions, Vermont sought to dismiss the complaint for lack of standing and for failure to state a claim, and Liberty Mutual moved for sum- mary judgment. With the consent of the parties, the district court treated the motions as cross-motions for summary judgment. See Liberty Mut. Ins. Co. v. Kimbell, No. 2:11-cv-204, 2012 WL 5471225, at *1 (D. Vt. Nov. 9, 2012). The court concluded that Liberty Mutual had Article III standing but that ERISA did not preempt the Vermont statute and regulation and that Vermont was therefore entitled to summary judgment. See id. DISCUSSION I We agree with the district court that Liberty Mutual has standing to challenge the subpoena App. 10 issued to Blue Cross.’ Liberty Mutual has demon- strated “the irreducible constitutional minimum of standing”: (1) “an invasion of a legally protected in- terest which is (a) concrete and particularized; and (b) actual or imminent, not conjectural or hypothet- ical”; (2) “a causal connection between the injury and the conduct complained of”; and (3) that the injury will likely be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (footnote, citations, and internal quotation marks omitted). It is of no moment that the subpoena was issued to Blue Cross and not directly to Liberty Mutual. The TPA agreement provides that Liberty Mutual will hold Blue Cross harmless for any financial charges “arising from or in connection with” the Plan. J.A. 54- 55. Liberty Mutual therefore faces a choice between (1) allowing Blue Cross to turn over the Plan’s data in what Liberty Mutual considers a violation of its du- ties as Plan administrator and fiduciary; or (2) direct- ing non-compliance, and indemnifying Blue Cross for the ensuing civil penalties. Either way, under Lujan, Liberty Mutual suffers a redressable injury-in-fact as a direct result of Vermont’s threatened, imminent action. * The parties have not briefed the standing issue on appeal, but Article III standing “is the threshold question in every fed- eral case, determining the power of the court to entertain the suit.” Warth v. Seldin, 422 U.S. 490, 498 (1975). App. 11 II We review de novo the grant of summary judg- ment on the preemption question. See, e.g., Wrobel v. Cnty. of Erie, 692 F.3d 22, 27 (2d Cir. 2012). Summary judgment is appropriate if the record shows “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “[WJe may reverse the grant of summary judgment and order judgment for the non- moving party if we find undisputed support in the record entitling the non-moving party to judgment as a matter of law.” New England Health Care Emps. Union v. Mount Sinai Hosp., 65 F.3d 1024, 1030 (2d Cir. 1995). A ERISA’s comprehensive regulatory scheme gov- erns most employee benefit plans, including self- insured health plans. See 29 U.S.C. § 1003. ERISA requires plan administrators to file annually with the Department of Labor reports detailing financial and actuarial information. See id. §§ 1021-1024. The De- partment of Labor is authorized “to undertake re- search and surveys and in connection therewith to collect, compile, analyze and publish data, infor- mation, and statistics relating to employee benefit plans.” Jd. § 1143. ERISA broadly preempts “any and all State laws insofar as they may now or hereafter relate to any employee benefit plan.” Id. § 1144(a) (em- phasis added). With remarkable consistency, the App. 12 legislative history reflects that this broad wording was purposeful: it was intended to eliminate the threat of a multiplicity of conflicting or inconsistent state laws,’ and to achieve broad preemptive effect in the areas of record-keeping, reporting, and disclo- sure.* Vermont argues — and the district court agreed — that Congress could not have intended broad preemp- tion of state reporting laws because the same Con- gress also passed the National Health Planning and * See 120 Cong. Rec. 29197 (1974) (Statement of Rep. Dent) (“I wish to make note of what is to many the crowning achieve- ment of this legislation, the reservation to Federal authority the sole power to regulate the field of employee benefit plans. With the preemption of the field, we round out the protection afforded participants by eliminating the threat of conflicting and incon- sistent State and local regulation.”); id. at 29933 (Statement of Sen. Williams) (discussing “inten[t) to preempt the field for Fed- eral regulations, thus eliminating the threat of conflicting or in- consistent State and local regulation of employee benefit plans” and stating that “[t)his principle is intended to apply in its broadest sense to all actions of State or local governments, or any instru- mentality thereof, which have the force or effect of law”). * See S. Rep. No. 93-127, at 35 (1973), reprinted in 1974 U.S.S.C.A.N. 4838, 4871 (“Because of the interstate character of employee benefit plans, the Committee believes it essential to provide for a uniform source of law in the areas of vesting, fund- ing, insurance and portability standards, for evaluating fidu- ciary conduct, and for creating a single reporting and disclosure system in lieu of burdensome multiple reports.” (emphasis added)); H.R. Rep. No. 93-533, at 17 (1973), reprinted in 1974 U.S.S.C.A.N. 4639, 4655 (virtually the same); see also 120 Cong. Rec. 29942 (1974) (Statement of Sen. Javits) (“In view of Federal preemption, State laws compelling disclosure from private wel- fare or pension plans .. . will be superseded.”). App. 13 Resources Development Act of 1974 (“NHPRDA”). The NHPRDA provided for the establishment of state health planning agencies and authorized these agencies to “assemble and analyze data concerning” health; health care delivery, resources, and use; and related environmental factors. See Pub. L. No. 93-641, 88 Stat. 2225, at § 1513(b) (1975). The Supreme Court consulted the NHPRDA to decide ERISA preemption in a case in which the NHPRDA expressly contem- plated a state regulatory measure. See N.Y. State Conference of Blue Cross & Blue Shield Plans uv. Travelers Ins. Co., 514 U.S. 645, 665-67 (1995). Here, however, the NHPRDA is not similarly indicative.” And if there were tension between NHPRDA and ERISA, it was relieved in 1986 when the NHPRDA was repealed. B The Supreme Court, and this Court, initially applied ERISA preemption as broadly as the statu- tory phrase (“relate to any employee benefit plan”) seemed to require. * The NHPRDA’s encouragement of state data collection is not necessarily inconsistent with ERISA’s preemptive reach. A lot of data can be collected from health care providers, and from health care payers other than ERISA plans. Nothing in the NHPRDA compels the conclusion that, contrary to every indica- tion in ERISA’s text and history, Congress intended to allow a multiplicity of state record-keeping and reporting requirements for self-insured employee plans. App. 14 As explained in Shaw v. Delta Air Lines, Inc., the “breadth of [ERISA’s] pre-emptive reach is apparent from that section’s language.” 463 U.S. 85, 96 (1983); see id. at 98 (“Congress used the words ‘relate to’... in their broad sense.”).° Shaw formulated the modern ERISA preemption test: a state law is preempted if “it {1] has a connection with or [2] reference to [an ERISA] plan.” Jd. at 96-97 (emphases added). The Court treated as obvious that ERISA preempted “state laws dealing with the subject matters covered by ERISA — reporting, disclosure, fiduciary responsi- bility, and the like.” Jd. at 98 (emphases added). The open question was whether preemption went beyond these core areas, and the Court held it did. See id. at 96-97. The one note of caution in Shaw was consigned to a footnote: Some state actions may affect employee ben- efits plans in too tenuous, remote, or pe- ripheral a manner to warrant a finding that the law “relates to” the plan. Cf. Am. Tel. & Tel. Co. v. Merry, 592 F.2d 118, 121 (CA2 1979) (state garnishment of a spouse’s pen- sion income to enforce alimony and support orders is not pre-empted). The present litiga- tion plainly does not present a border-line question, and we express no views about * That interpretation was supported by ERISA’s exemption for generally applicable state criminal statutes, an exemption that would be unnecessary if preemption “applied only to state laws dealing specifically with ERISA plans.” Shaw, 463 U.S. at 98 (discussing 29 U.S.C. § 1144(bX4)). App. 15 where it would be appropriate to draw the line. Id. at 100 n.21. For another decade, the Supreme Court and this Court followed Shaw and repeatedly emphasized the broad reach of ERISA preemption. See, e.g., FMC Corp. v. Holliday, 498 U.S. 52, 58 (1990) (“The pre- emption clause is conspicuous for its breadth.”); Gen. Elec. Co. v. N.Y. State Dep’t of Labor, 891 F.2d 25, 29 (2d Cir. 1989) (“ERISA was intended to have a ‘sweep- ing preemptive effect in the employee benefit plan field.’ Congress intended ERISA to occupy and reg- ulate the field of employee benefit plans.” (citation omitted)). The threat of conflicting state and local reg- ulation was consistently cited as a paramount reason for preemption: Preemption “was intended to ensure that plans and plan sponsors would be subject to a uniform body of benefits law; the goal was to mini- mize the administrative and financial burden of com- plying with conflicting directives among States or between States and the Federal Government.” /nger- soll-Rand Co. v. McClendon, 498 U.S. 133, 142 (1990); see Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 10 (1987) (“We have not hesitated to enforce ERISA’s pre-emption provision where state law created the prospect that an employer’s administrative scheme would be subject to conflicting requirements. . . . Such a situation would produce considerable inefficiencies, which the employer might choose to offset by lowering benefit levels.”); Howard v. Gleason Corp., 901 F.2d 1154, 1157 (2d Cir. 1990) (“[TJhe express pre-emption App. 16 provisions of ERISA are deliberately expansive, and designed to establish pension plan regulation as ex- clusively a federal concern in order to afford employ- ers the advantages of a uniform set of administrative procedures governed by a single set of regulations.” (citations and internal quotation marks omitted)). These cases specifically re-emphasized that “re- porting” and “disclosure” are core ERISA functions subject to a uniform federal standard. See Ingersoll- Rand, 498 U.S. at 137 (“[ERISA) sets various uniform standards, including rules concerning reporting, dis- closure, and fiduciary responsibility... .”); FMC Corp., 498 U.S. at 58 (listing “reporting” and “disclo- sure” as “subject matters covered by ERISA”). The Supreme Court has explained the impor- tance of having uniform federal record-keeping and reporting requirements: {The legislative history] reflect[s] recognition of the administrative realities of employee benefit plans. An employer that makes a commitment systematically to pay certain ben- efits undertakes a host of obligations, such as determining the eligibility of claimants, calculating benefit levels, making disburse- ments, monitoring the availability of funds for benefit payments, and keeping appropri- ate records in order to comply with applicable reporting requirements. The most efficient way to meet these responsibilities is to estab- lish a uniform administrative scheme, which provides a set of standard procedures to guide processing of claims and disbursement App. 17 of benefits. Such a system is difficult to achieve, however, if a benefit plan is subject to differing regulatory requirements in differing States. A plan would be required to keep cer- tain records in some States but not in others; to make certain benefits available in some States but not in others; to process claims in a certain way in some States but not in others; and to comply with certain fiduciary standards in some States but not in others. Fort Halifax, 482 U.S. at 9 (emphases added). Liberty Mutual places great weight on the Su- preme Court’s summary affirmance of one of these early preemption cases, Standard Oil Co. v. Agsalud, 633 F.2d 760, 763 (9th Cir. 1980). We need not rest our ruling on that case or on so perfunctory a disposi- tion as summary affirmance.’ At the same time, it is * The district court in Agsalud held that a Hawaii law (1) requiring workers to be covered by a comprehensive prepaid health care plan and (2) imposing “certain reporting require- ments which differ{ed) from those of ERISA,” was preempted. 442 F.Supp. 695, 696, 706-07 (N.D. Cal. 1977). Though the ruling rested mainly on the state’s comprehensive prepaid plan requirement, the court added that the ERISA preemption clause “was intended at the very least to preempt state laws regulating disclosure [and] reporting.” Jd. at 706 n.11. The Ninth Circuit agreed with the district court, 633 F.2d 760, 763 (9th Cir. 1980), and the Supreme Court summarily affirmed, Agsalud v. Standard Oil Co., 454 U.S. 801 (1981). However, “the precedential effect of a summary affirmance extends no further than the precise issues presented and necessarily decided by those actions.” Anderson v. Celebrezze, 460 U.S. 780, 784 n.5 (1983) (internal quotation marks omitted). App. 18 telling that when Congress amended ERISA in 1983 “to exempt from pre-emption certain provisions of the Hawaii Act,” it “did not exempt from pre-emption those portions of the law dealing with reporting, dis- closure, and fiduciary requirements.” Fort Halifax, 482 U.S. at 13 n.7; see H.R. Rep. No. 97-984, at 18 (Dec. 21, 1982) (Conf. Rep.) (“The provision continues Federal preemption of State law with respect to mat- ters governed by the reporting and disclosure and the fiduciary responsibility provisions of ERISA. . . .”). C The Supreme Court’s 1995 decision in New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Insurance Co. marked something of a pivot in ERISA preemption. See 514 U.S. 645 (1995). The Court began “with the starting presumption that Congress does not intend to supplant state law,” especially if the “state action foccurs] in fields of traditional state regulation,” like health care." Jd. at * The dissent relies on this presumption. See Dissenting Op. at 4-5. We acknowledge that the presumption applies when the state law “operates in a field that has been traditionally occu- pied by the States,” and that “the historic police powers of the State include the regulation of matters of health and safety.” De Buono v. NYSA-ILA Med. & Clinical Servs. Fund, 520 U.S. 806, 814 (1997) (internal quotation marks omitted). However, state health data collection laws do not regulate the safe and effective provision of health care services, which is among the states’ his- toric police powers. And collecting data can hardly be deemed “historic” — most such laws were enacted only within the last ten years. See J.A. 368-74. In any event, the Supreme Court has (Continued on following page) App. 19 654-55. To preempt, a “clear and manifest purpose” by Congress is required. Jd. at 655. Following on this presumption, the Court pulled back on its broad, literal reading of “relate to”: if the phrase “were taken to extend to the furthest stretch of its indeterminacy, then for all practical purposes pre-emption would never run its course.” Jd. Applying the two-part Shaw test in light of these new principles, the Court concluded that a state statute requiring hospitals to collect a surcharge from patients covered by commercial insurers was not preempted. See id. at 656. The Court explained that state law is preempted if it “mandate[s] employee benefit structures or their administration” or “pro- vidies] alternative enforcement mechanisms.” Jd. at 658. The state surcharge law withstood preemption in Travelers because it had no more than an “indirect economic influence” on ERISA plans, it did “not bind plan administrators to any particular choice and thus function as a regulation of an ERISA plan itself,” and it did not “preclude uniform administrative practice or the provision of a uniform interstate benefit pack- age if a plan wishes to provide one.” Jd. at 659-60. The Court again recognized the central roles of reporting and disclosure: ERISA “controls the admin- istration of benefit plans, as by imposing reporting repeatedly found the presumption overcome if the state laws “up- set{ ] the deliberate balance central to ERISA,” even if those laws “implement policies and values lying within the traditional do- main of the States.” Boggs v. Boggs, 520 U.S. 833, 840, 854 (1997). App. 20 and disclosure mandates.” Id. at 651 (emphasis added) (citation omitted). “Congress’s extension of pre-emption to all state laws relating to benefit plans was meant to sweep more broadly than state laws dealing with the subject matters covered by ERISA, reporting, disclosure, fiduciary responsibility, and the like.” Jd. at 661 (emphases added) (internal quotation marks and brackets omitted). Applying Travelers, cases conclude that state laws having only an “indirect economic effect on ERISA plans” lack sufficient “connection with” or “reference to” an ERISA plan to “trigger ERISA preemption.” New England Health Care Emps. Union v. Mount Sinai Hosp., 65 F.3d 1024, 1030-33 (2d Cir. 1995); see also De Buono v. NYSA-ILA Med. & Clinical Servs. Fund, 520 U.S. 806, 809 (1997) (state hospital tax not preempted); NYS Health Maint. Org. Conference uv. Curiale, 64 F.3d 794, 801-03 (2d Cir. 1995) (“[O]nly link [state surcharge law] has with ERISA plans is its indirect effect on rate diversification among insur- ers.”). Nevertheless, the Supreme Court teaches that Travelers and its progeny do not disturb the long- standing principle that “state statutes that mandate[] employee benefit structures or their administration” have a “connection with” ERISA plans and are there- fore preempted. Cal. Div. of Labor Standards En- forcement v. Dillingham Constr., 519 U.S. 316, 328 (1997) (emphasis added) (internal quotation marks omitted). Like Travelers itself, later cases reiterate that “ERISA is expressly concerned” with “reporting, disclosure, fiduciary responsibility, and the like.” Jd. App. 21 at 330 (internal quotation marks omitted); sce also Boggs v. Boggs, 520 U.S. 833, 841 (1997); Plumbing Indus. Bd. v. E.W. Howell Co., 126 F.3d 61, 66 (2d Cir. 1997). The use of preemption to avoid proliferation of state administrative regimes also remains a vital fea- ture of the law. “[D]iffering state regulations affecting an ERISA plan’s system for processing claims and paying benefits impose precisely the burden that ERISA pre-emption was intended to avoid.” Egelhoff v. Egelhoff, 532 U.S. 141, 150 (2001) (emphasis add- ed) (internal quotation marks omitted); see Romney v. Lin, 94 F.3d 74, 80 (2d Cir. 1996) (“basic purpose” of ERISA preemption is to “avoid a multiplicity of reg- ulation in order to permit the nationally uniform ad- ministration of employee benefit plans”). It is true that this Court’s three most recent cases focus primarily on “the relationships among the core ERISA entities,” and caution against preemption of generally applicable state laws. See Stevenson v. Bank of N.Y. Co., 609 F.3d 56, 61 (2d Cir. 2010); Hattem v. Schwarzenegger, 449 F.3d 423, 429-31 (2d Cir. 2006); Gerosa v. Savasta & Co., 329 F.3d 317, 324 (2d Cir. 2003). But these cases involve either a state income tax with only indirect economic effects (the kind of law Travelers expressly permits), see Hattem, 449 F.3d at 425, or state law causes of action that have “little to do with the conduct of the plan,” Gerosa, 329 F.3d at 328; see also Stevenson, 609 F.3d at 61 (noting that state law suit did not implicate “actual administration” of the plan). They do not App. 22 purport to save state laws that subject plans to “sets of inconsistent state obligations” or that “tend to con- trol or supersede central ERISA functions.” Gerosa, 329 F.3d at 324, 328. When this Court has allowed a state reporting requirement to withstand preemption, as it has in two post-Travelers cases, the requirement: (1) imposed no “particular form” of record- keeping and created burdens “so slight” as to “create[] no impediment to an employer’s adoption of a uniform benefit administration scheme,” Burgio & Campofelice, Inc. v. NYS Dep't of Labor, 107 F.3d 1000, 1009 (2d Cir. 1997) (internal quotation marks omitted); or (2) “sought information readily obtain- able from an employer” without specifying “a particular form of record-keeping,” HMI Mech. Sys., Inc. v. McGowan, 266 F.3d 142, 150-51 (2d Cir. 2001). In effect, these cases adhere to the intact pre- Travelers principle against preemption of laws “cre- atling] no impediment to an employer’s adoption of a uniform benefit administration scheme,” Fort Hali- fax, 482 U.S. at 14, and with “too tenuous, remote, or peripheral” an effect on employee benefit plans, Shaw, 463 U.S. at 100 n.21. Thus HMI (which Ver- mont relies on heavily) cautioned that state subpoe- nas would indeed be “overbroad to the extent that they seek the amount of benefits that employees receive” or “examin(e] employer contributions on a benefit by benefit basis.” HMI, 266 F.3d at 151. App. 23 D We hold that the reporting requirements of the Vermont statute and regulation have a “connection with” ERISA plans (though no “reference to” them”) and are therefore preempted as applied. Our holding is supported by the principle (undisturbed in Travel- ers) that “reporting” is a core ERISA function shielded from potentially inconsistent and burdensome state regulation.” ERISA preempts “state laws dealing with the subject matters covered by ERISA — reporting, disclo- sure, fiduciary responsibility, and the like.” Shaw, 463 U.S. at 98 (emphases added). “[Rjeporting” is neces- sarily a function distinct from the disclosure that ad- ministrators provide beneficiaries; otherwise “reporting” * The Vermont statute and regulation lack “reference to” an ERISA plan because they apply to all health care payers and do not act “exclusively upon ERISA plans.” Dillingham, 519 U.S. at 325; Travelers, 514 U.S. at 656. A “connection with” an ERISA plan is sufficient, however, for preemption. Shaw, 463 U.S. at 96-97 (setting out disjunctive test). It is of no moment that the law is being applied to, and the subpoena targeted at, Liberty Mutual’s TPA rather than Liberty Mutual itself. See Pharm. Care Mgmt. Ass'n v. Dist. of Columbia, 613 F.3d 179, 182 (D.C. Cir. 2010) (holding ERISA preempts state law provisions “insofar as they apply to a phar- maceutical benefits manager .. . under contract with an employee benefit plan (EBP) because they ‘relate to’ an EBP”). We agree with the D.C. Circuit that “the objective of uniformity in plan administration” is not “for some reason inapplicable simply be- cause a plan has contracted with a third party to provide ad- ministrative services.” Jd. at 185. App. 24 would be subsumed by “disclosure” and rendered su- perfluous. Rather, “reporting” entails what Vermont requires be done: plan record-keeping, and filing with a third-party. But whatever the scope of plan “reporting,” Ver- mont cannot deny that that is what it is seeking. The relevant database is called the “Vermont Healthcare Claims Uniform Reporting and Evaluation System” and the operative section of the regulation is titled “Reporting Requirements.”"' Regulation H-2008-01 §§ 3(Ar), 4 (emphases added). Not every state law imposing a reporting require- ment is preempted. Burgio and HMI allow a slight reporting burden to be laid on plans, consistent with the preemption rule tolerating laws that “create[ | no impediment to an employer’s adoption of a uniform benefit administration scheme,” Fort Halifax, 482 U.S. at 14, and with “too tenuous, remote, or periph- eral” an effect on employee benefit plans, Shaw, 463 U.S. at 100 n.21. " The dissent argues that the “reporting requirement im- posed by the Vermont statute differs in kind from the ‘reporting’ that is required by ERISA and therefore was not the kind of state law Congress intended to preempt.” Dissenting Op. at 1. But the conclusion does not follow from the premise. To the con- trary: A hodge-podge of state reporting laws, each more onerous than ERISA’s uniform federal reporting regime, and seeking different and additional data, is exactly the threat that moti- vates ERISA preemption. App. 25 But the reporting mandated by the Vermont stat- ute and regulation is burdensome, time-consuming, and risky. Even considered alone, the Vermont scheme triggers preemption; considered as one of several or a score of uncoordinated state reporting regimes, it is obviously intolerable. A quick overview of the Reporting System is telling: Plans must periodically report: (1) “medical claims data” “composed of ser- vice level remittance information for all non- denied adjudicated claims for each billed service including, but not limited to member demographics, provider information, charge/ payment information, and clinical diagnosis and procedure codes, and ... includ[ing) all claims related to behavioral or mental health”; (2) “pharmacy claims data” “containing ser- vice level remittance information from all non-denied adjudicated claims for each pre- scription including, but not limited to: mem- ber demographics|,] provider information|,| charge/payment information[,} and national drug codes”; (2) “member eligibility data” “containing demographic information for each individual member eligible for medica) or pharmacy benefits for one or more days of coverage at any time during the reporting month’; App. 26 (4) and any “other information relating to health care provided to Vermont residents and health care provided by Vermont health care providers and facilities to both Vermont residents and non-residents ... for each health line of business.” Regulation H-2008- 01 §§ 3-4. Plans must report their data frequently. Thus plans with 500 to 1,999 covered mem- bers must report quarterly and plans with 2,000 or more covered members must report monthly. See id. §6(1). Compare this to ERISA, which requires a single report annu- ally. See 29 U.S.C. § 1021. Data must be coded under the appropriate source code system. See Regulation H-2008- 01 § 5(AX5)(a). Sixteen source code systems are provided, including the “Admission Source Code” (“[a} variety of codes explaining who recommended admission to a medical facility”) and the “International Classifica- tion of Diseases, 9th Revision, Clinical Modi- fication” code (“describes the classification of morbidity and mortality information for sta- tistical purposes and for the indexing of hos- pital records by disease and operations”). Jd. Appendix A. “Individual data elements, data types, field lengths, field description/code assignments, and mapping locators” for each file must con- form to specified requirements. Id. § 5(B). Fields include “Admission Hour” and “Dis- charge Hour,” thirteen “Diagnosis” fields, App. 27 three “Procedure” fields, and the “Drug Name” and “Quantity Dispensed”. Jd. Ap- pendices C-1-E-2. ¢ “(Tjhe social security number of the mem- ber/subscriber and the subscriber and mem- ber names” must be encrypted prior to submission by “utilizing a standard encryp- tion methodology provided.” Id. § 5(A)(5)(b). (Encryption is not required for other data fields.) And nothing prevents the Department from changing these myriad requirements from time to time, so long as the Department complies with the broad mandate of the statute. The confidentiality provisions of the Vermont scheme are complex but loose, and impair or (at least) reassign the obligation in the Plan documents to keep medical records strictly confidential, as well as the undertaking by Blue Cross as TPA to use information solely for Plan administration purposes and to pre- vent unauthorized disclosure.” The regulation specif- ically contemplates “access to health care claims data sets and related information” by “persons other than ‘* Whether disclosure to Vermont is authorized under the Plan documents may turn on whether Vermont law creates au- thorization, because the Plan undertakes to comply with state law; but compliance is allowed only “to the extent not preempted by ERISA,” a limitation that leaves the Plan and the TPA in a complex and expensive legal muddle. App. 28 the Department.” Jd. § 8. Each data field is classified into one of three “use and release” categories: (1) “Unavailable Data Elements”: not available for general use and release. (2) “Restricted Data Elements”: only available for use and release as part of a “Limited Use Research Health Care Claims Data Set” approved by the Department. These elements, and information that can be de- rived from these elements, include the mem- ber’s city and zip code, the admission and discharge dates and hours, and the service provider and pharmacy names. (3) “Unrestricted Data Elements”: “avail- able for general use and public release... . upon written request.” These publicly avail- able elements, and information that can be derived from these elements, include the member’s gender, age, medical coverage, pre- scription drug coverage, and diagnosis; the type of procedure; the service provider’s spe- ciality and zip code; and the name and price of any drugs prescribed. Id. § 8 & Appendices J-1-J-14. Specific as these cate- gories are, they may be illusory, because the Depart- ment can ease public release restrictions on data that is currently restricted or unavailable, so long as “di- rect” personal identifiers are not published and the data is (in the Department’s opinion) handled in an “ethical manner.” Vt. Stat. Ann. tit. 18, § 9410(e)-(f), (hX3XD). App. 29 Since other states can impose their own regimes for reporting — and many do — these burdens and risks must be multiplied. The trend toward narrowing ERISA preemption does not allow one of ERISA’s core functions — report- ing — to be laden with burdens, subjected to incompat- ible, multiple and variable demands, and freighted with risk of fines, breach of duty, and legal expense.” * The dissent draws a “distinction between general admin- istration and administration of plans, claims, and benefits” and concludes that ERISA preemption doctrine does not reach state reporting laws that implicate the former. Dissenting Op. at 14. Essentially, the dissent would preempt state reporting laws only if they require plans to submit financial statements. The dis- sent’s view of ERISA plan “administration” and “reporting” is unduly narrow. The overview of requirements (set out above) makes clear that Vermont requires ERISA plans to record, in specified for- mat, massive amounts of claims information and to report that information to third parties, creating significant (and obvious) privacy risks and financial burdens that will be passed from the TPA to the Plan and from the Plan to the beneficiaries. That is not a proper allocation of plan assets. See 29 U.S.C. § 1104(a\(1XA) (“[A] fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and ... for the exclusive purpose of... providing benefits to partici- pants and their beneficiaries; and ... defraying reasonable ex- penses of administering the plan[.]”). Modest financial burdens may be tolerable when the state laws imposing them do not di- rectly implicate an ERISA core administrative concern. But the statute and regulation here require reporting of health claims, pharmacy claims, etc., information about the essential function- ing of employee health plans. App. 30 CONCLUSION For the foregoing reasons, we reverse and re- mand with instructions to enter judgment for Liberty Mutual. —_——-—- --+ STRAUB, Circuit Judge, dissenting in part and con- curring in part: I respectfully dissent in part and concur in part. I concur with part I of the discussion section of the majority opinion finding that Liberty Mutual has standing. For the reasons that follow, I dissent from the majority’s holding that the Vermont statute is preempted by ERISA. The majority finds that the burden imposed by the Vermont reporting requirement warrants preemp- tion of the statute. This conclusion falters for two primary reasons. First, the reporting requirement imposed by the Vermont statute differs in kind from the “reporting” that is required by ERISA and there- fore was not the kind of state law Congress intended to preempt. Second, Liberty Mutual has failed to show any actual burden, much less a burden that triggers ERISA preemption. Rather, the Vermont statute, like others we have previously upheld, does not interfere with an ERISA plan’s administration of benefits. For these reasons, our precedent and that of the Supreme Court do not support the conclusion that the Vermont statute’s reporting requirements pose the sort of threat to “the nationally uniform administration of App. 31 employee benefit plans” that would trigger preemp- tion. N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 657 (1995) (hereinafter “Travelers “). Looking at the objectives of ERISA and the im- pact of the Vermont statute on ERISA plans, as we must in order to determine whether the statute has an improper “connection with” ERISA plans, I con- clude that this is not the type of statute that Con- gress intended to preempt. ANALYSIS The preemption clause of the ERISA statute provides that, with certain exceptions not relevant here, ERISA “shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan.” 29 U.S.C. § 1144(a). The Su- preme Court has stated that the “basic thrust of the preemption clause ... was to avoid a multiplicity of regulation in order to permit the nationally uniform administration of employee benefit plans.” Travelers, 514 U.S. at 657. “Pre-emption does not occur, how- ever, if the state law has only a ‘tenuous, remote, or peripheral’ connection with covered plans, as is the case with many laws of general applicability.” Burgio & Campofelice, Inc. v. N.Y. State Dep’t of Labor, 107 F.3d 1000, 1008 (2d Cir. 1997) (internal quotations marks omitted) (quoting Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 100 n.21 (1983)). App. 32 “Two kinds of state laws relate to ERISA for purposes of preemption: those that mandate em- ployee benefit structures or their administration, and those that provide alternative enforcement mecha- nisms.” HMI Mech. Sys., Inc. v. McGowan, 266 F.3d 142, 149 (2d Cir. 2001) (internal quotation marks and brackets omitted). The Vermont statute does neither. We have noted that courts are “reluctant to find that Congress intended to preempt state laws that do not affect the relationships among” “the core ERISA en- tities: beneficiaries, participants, administrators, em- ployers, trustees and other fiduciaries, and the plan itself.” Gerosa v. Savasta & Co., 329 F.3d 317, 324 (2d Cir. 2003). The Vermont statute does not even argu- ably regulate these relationships. Moreover, the Ver- mont statute does not impose regulations on how plans are to be run or how benefits are to be adminis- tered. Yet the majority takes up Liberty Mutual’s in- vitation to give the term “reporting” its broadest meaning, and finds the statute is preempted because “reporting” is a “core ERISA function shielded from potentially inconsistent and burdensome state regu- lation.” (Maj. Op. at 24-25) While it is certainly true that ERISA’s core areas include “reporting, disclo- sure, [and] fiduciary responsibility,” Shaw, 463 U.S. at 98, and that “state laws that would tend to control or supersede central ERISA functions ... have typi- cally been found to be preempted,” Gerosa, 329 F.3d at 324, the majority’s argument misses the nuance of what “reporting” means in the context of ERISA, and App. 33 ignores the case law’s focus on whether the admin- istration of benefits to beneficiaries is impacted, an issue on which there is no showing. A. Traditional State Regulation of Health Care and the Presumption Against Preemption The majority’s finding, hidden in a footnote, that the presumption against preemption does not apply here, flies in the face of clear Supreme Court prece- dent instructing us to begin with the “presumption that Congress does not intend to supplant state law.” Travelers, 514 U.S. at 654-55. “[I]n cases like this one where federal law is said to bar state action in fields of traditional state regulation, we have worked on the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” Jd. at 655 (internal citations and quotation marks omitted). This is because “nothing in the lan- guage of [ERISA] or the context of its passage indi- cates that Congress chose to displace general health care regulation, which historically has been a matter of local concern.” Jd. at 661. The majority nonetheless holds that the pre- sumption against preemption does not apply here because “state health data collection laws do not reg- ulate the safe and effective provision of health care services.” (Maj. Op. at 19 n.8) This contradicts the very Supreme Court precedent the majority relies upon: DeBuono v. NYSA-ILA Medical and Clinical App. 34 Services Fund, 520 U.S. 806 (1997). In that case, New York imposed a tax on patient services at various health care providers. 520 U.S. at 808. The Court applied the presumption, reasoning that although the New York law was “a revenue raising measure, rather than a regulation of hospitals, it clearly operates in a field that ‘has been traditionally occupied by the States.’” Jd. at 814. The Court further stated that the fact that the challenged law “targets only the health care industry ... supports the application of the ‘starting presumption’ against pre-emption,” because “the historic police powers of the State include the regulation of matters of health and safety.” Jd. at 814 & n.10. DeBuono is indistinguishable from the case at hand. Here, the Vermont statute “targets only the health care industry” and, even if it is not a regula- tion of health care entities, it certainly “operates in [the] field” of health and safety. Indeed, the stated purpose of the Vermont statute is to help improve health care quality. See Vt. Stat. Ann. tit. 18 § 9410(aX1) (listing purposes, including “improving the quality and affordability of patient health care”). There should be no question, therefore, that the pre- sumption applies here. B. There is No Improper “Connection With” ERISA Plans When analyzing whether ERISA preempts a state law, we apply the two-pronged Shaw test, as narrowed by Travelers’ presumption against preemp- tion. Under that test, we analyze whether a state law App. 35 has an impermissible “connection with” or “reference to” an ERISA plan. See, e.g., Hattem v. Schwarzenegger, 449 F.3d 423, 428 (2d Cir. 2006). Despite paying lip service to the Shaw test, the majority eschews a full analysis in favor of a talismanic recitation of the word “reporting.” I agree with the majority that because the Ver- mont statute requires data collection from entities other than ERISA plans, such as hospitals, health in- surers, and pharmacy benefit managers, it “functions irrespective of the existence of an ERISA plan” and therefore does not make an improper “reference to” ERISA plans. See Cal. Div. of Labor Standards En- forcement v. Dillingham Constr., N.A., Inc., 519 U.S. 316, 328 (1997) (internal quotation marks and ellipsis omitted). The “connection with” prong, on which the majority hangs its hat, instructs us to examine both “the objectives of the ERISA statute as a guide to the scope of the state law that Congress understood would survive” and the “effect of the state law on ERISA plans.” See Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141, 147 (2001) (internal quotation marks omitted); see also HMI, 266 F.3d at 148 (“Analyzing a state law’s ‘connection’ with ERISA plans requires the courts to consider ERISA’s objectives and the effect of the state law on ERISA plans.”). This analysis leads to the conclusion that the Vermont statute is not pre- empted. App. 36 1. Objectives of ERISA The objectives of the ERISA statute are not in dispute. Congress “enacted ERISA in 1974 to respond to growing concerns about the risk of employers de- faulting on pension plans, which were increasingly widespread but little regulated.” See Mallory Jensen, Is ERISA Preemption Superfluous In the New Age of Health Care Reform?, 2011 Colum. Bus. L. Rev. 464, 472 (2011) (internal footnotes omitted); see also Brendan S. Maher and Peter K. Stris, ERISA and Uncertainty, 88 Wash. U. L. Rev. 433, 440 n.29 (2010) (“Few dispute that the statute was passed, in part, as a response to several high-profile pension defaults that arose from company failures that devastated the pensions of many workers.”) (citing J.A. Wooten, The Most Glorious Story of Failure in the Business: The Studebaker-Packard Corp. & the Origins of ERISA, 49 Buff. L. Rev. 683, 683-84 (2001)). Indeed, the stat- ute itself declares that, in passing ERISA, Congress sought to protect interstate commerce and the inter- ests of participants in employee benefit plans and their beneficiaries, by requiring the dis- closure and reporting to participants and beneficiaries of financial and other infor- mation with respect thereto, by establish- ing standards of conduct, responsibility, and obligation for fiduciaries of employee bene- fit plans, and by providing for appropriate App. 37 remedies, sanctions, and ready access to the Federal courts. 29 U.S.C. § 1001(b).’ These objectives are reflected in the ERISA re- porting and disclosure requirements, which are con- cerned with the mismanagement of funds and failure to pay employee benefits, and seek information on plan assets or allocation. See 29 U.S.C. § 1023 (re- quiring publication of annual report to include a fi- nancial statement of assets and liabilities, changes in fund balance, disclosures about changes made in the plan, and financial commitments, including loans, leases, and transactions, and an actuarial statement). The plain language of the ERISA reporting require- ments shows that they are limited to the furnishing of a summary plan description to plan participants and an annual report to the Secretary. See 29 U.S.C. §§ 1021-30. The former is essentially a plain-English summary of key plan terms, id. §§ 1021-22, while the ' The Supreme Court has also noted that Representative Dent, the House sponsor of the legislation, “represented that ERISA’s fiduciary standards ‘will prevent abuses of the special responsibilities borne by those dealing with plans,’” and that the “disclosure and reporting requirements ‘will enable both partici- pants and the Federal Government to monitor the plans’ opera- tions.’” Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 15 (1987) (quoting 120 Cong. Rec. 29197 and 29935 (1974)). “Senator Williams, the Senate sponsor, stated that these fiduciary standards would safeguard employees from ‘such abuses as self-dealing, impru- dent investing, and misappropriation of plan funds.’” Id. (quot- ing 120 Cong. Rec. 29932). App. 38 latter is concerned with the financial soundness of the plan, id. § 1023. Thus, under ERISA, plans must report information that goes to the financial integrity of the plan. It is important to r [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0342%3A02. Public record. Not legal advice.