Amicus Curiae Brief — Gobeille v. Liberty Mut. Ins. Co., 135 S. Ct. 885 (2014) (No. 14-181)

Case No. 14-181

Bri the Supreme Court of the United 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 Writ Of Certiorari To The

United States Court Of Appeals

For The Second Circuit

BRIEF OF AMICI CURIAE THE NATIONAL

ASSOCIATION OF HEALTH DATA

ORGANIZATIONS (NAHDO), ET AL.

IN SUPPORT OF PETITIONER

Stephen P. Nash*

Melodi M. Gates

Kristine Blackwood

Bryna Shmerling Hummel

SQUIRE PATTON BoGGs

(US) LLP

1801 California Street,

Suite 4900

Denver, Colorado 80202

303-830-1776

stephen.nash@squirepb.com

Counsel for Amici Curiae

September 4, 2015 *Counsel of Record

ST nS A CASEMENT

VWALSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D. C. 20002

I. ERISA’s Core Objective Of

National Uniformity Is Not

Contradicted By Vermont’s

Mandate To Submit Claims And

Eligibility Data. ..0.......-..ccccccsccssesssseee 4

B. The Claims And Eligibility

Data Submissions Mandated

By Vermont Are Typical Of

Other State APCDs And

Health Data Aggregation

C. Vermont's APCD Data

Submissions Law Has No

Impermissible Connection

With Employer-Sponsored

Self-Funded Health Plans............ 17

i

Il. The Long-Standing Consensus

Position Of Employers And

Business Groups Is That Access

To Claims And Other Utilization

Data Is Critical For Health Care

ES ee 21

Ill. Liberty Mutual Is Out Of Step

With The Trend In Federal,

State, And Private Sector

Initiatives Demanding Increased

Transparency And Measurability

In

CONCLUSION

EE EE 27

The Affordable Care Act And

The Medicare Access And

CHIP Reauthorization Act Of

2015 Are Only The Most

Recent Examples Of

Bipartisan Federal Support

For Greater Health Data

The States Have A Long

History Of Aggregating

Health Data To The Benefit

Of Their Citizens. ......................... 36

Private Sector Health Data

Initiatives Demonstrate

Feasibility But To Date

Provide An Incomplete View........ 38

TABLE OF AUTHORITIES

Page(s)

CASES

Egethoff v. Egethoff,

I cies 17, 18, 19

FMC Corp. v. Holliday,

ee 18, 19

Fort Halifax Packing Co., Inc. v. Coyne,

I 17, 18, 19

N.Y. State Conference of Blue Cross & Blue

Shield Plans v. Travelers Ins. Co..,

ee 3, 4, 17

STATUTES AND REGULATIONS

American Recovery and Reinvestment Act

(ARRA) of 2009, Pub. L. No. 111-5, 123

RR al ne ere Oe ene 29

Deficit Reduction Act of 2005, Pub. L. No.

iis I, I secsanernnausaneoness 30

Employee Retirement Income Security Act

(ERISA) of 1974, 29 U.S.C. § 1001 et seq. .. passim

Health Care and Education Reconciliation Act

of 2010, Pub. L. No. 111—152, 124 Stat.

Health Insurance Portability and

Accountability Act (HIPAA) of 1996, Pub.

L. No. 104-191, 110 Stat. 1936.................. passim

lv

Medicare Access and CHIP Reauthorization

Act (MACRA) of 2015, Pub. L. No. 114-10,

EO Ray EMP ase 31, 32

Medicare Improvements for Patients and

Providers Act of 2008, Pub. L. No. 110—275,

St cintiscsMiinininerectiniceniasnidaninesneiiaaiesiantianeninl 30

Medicare, Medicaid, and SCHIP Benefits

Improvement and Protection Act of 2000,

Pub. L. No. 106—554, 114 Stat. 2763.................. 30

Medicare Prescription Drug, Improvement,

and Modernization Act of 2003, Pub. L. No.

Ss Bg 8 eee 30

Patient Protection and Affordable Care Act,

Pub. L. No. 111—148, 124 Stat. 119............ passim

GD GER. i aranicscttsictenitacantiquiniiddiiesiiaaaen 32

S. 956, 90th Gen. Assembly, Regular Sess.,

(Ark. 2015), Ark. Code Ann. § 23-61-906........... 15

S. 26, 2015-2016 Reg. Session (Ca. 2015)

(introduced May 28, 2015).................:ceccccceeeeeeeee 24

Colo. Rev. Stat. § 35.6-1-BO4.............cccccsccsccccscosccsees 25

Me. Rev. Stat. tit. 22:

I oocciceccsnieescnpnesssenieiciaditdbeacuemaneiaaaane 15

TO EITIEED cncnisscssnmmensnssanspigtaniniiieaaeamaiemeaa 15

SS | eee 14

Va. Code Ann. § 32.1-276.7:1(E)(1)................0cccceeeee 14

Vt. Stat. Ann.:

Tit. 18:

Ni ediccisanie dieniinsnetnenecesenenenetoomiceties 15

TT cceneeiosonntun 29, 40

S. 88, 2009-2010 Sess. (Vt. 2010).............0.0.000000000... 34

Ween. Rev. Code Gh. B46, § 8 ............0......c0cccccesececees 24

42 C.F.R.:

SEE Ee 32

tidied ntnlenetentannscenncieéanmeinnes 32

45 C.F.R.:

leider enetannencicabtnnaenbusdane 6,8

SERS Coe 7

oe 6, 8

idles iediadeicdnimipnnennenennenscenmmesencenl 6

SEE eee 6

STITT iicininniediintiditaantdtissnetminencbesennmencenescnnntas 8

Tee 9

§ 162.1602 ........ TT ae aT ET 8

10 Colo. Code Regs. 2505-5, § 1.200.5 ..................... 37

Vt. Regulation H-2008-01, Apps.:

Exec. Order No. 13,335, 69 Fed. Reg. 24,059-

I eerie 30

ADMINISTRATIVE MATERIALS

Agency for Healthcare Research and Quality

(AHRQ), USHIK, APCD te ASC X12

Relationship Mapping,

https://ushik.ahrgq.gov/APCDGroupings?sys

tem=apcd&enableAsynchronousLoading=t

Ctrs. for Medicare & Medicaid Servs.:

Ctr. for Medicare & Medicaid Innovation

(CMMI), State Innovation Models: Funding

for Model Design and Testing Assistance,

Cooperative Agreement, Amended

Announcement, Funding Opportunity No.

CMS-1G1-12-001 (Aug. 23, 2012), available

at

http:/Annovation.cms.gov/Files/x/StateInno

CN iciintinttencinntntecneaiatsentmninetnennininl 34

vil

Ctr. for Medicare & Medicaid Innovation

(CMMI), State Innovation Models

Initiative: General Information,

Consumer Info. & Ins. Oversight (CIIO),

State Effective Rate Review Programs,

https://www.cms.gov/CCIIO/Resources/F act

-Sheets-and-

FAQs/rate_review_fact_sheet.html..................

Consumer Info. & Ins. Oversight (CIIO),

Rate Review Works: Early Achievements of

Health Insurance Rate Review Grants,

avauable at

https://www.cms.gov/CCIIO/Resources/File

s/Downloads/rate_review_report_092011.p

Ctr. for Improving Value in Health Care, Colo.

All-Payer Claims Database Data

Submission Guide (Version 6) (March

2014), available at

http://www.civhc.org/getmedia/c407 1074-

ecc4-45 7b-bd40-72fee47ee639/Data-

Submission-Guide-V6-March-20 14-

Access Health CT, Connecticut All Payers

Claims Database Data Submission Guide,

Data Content Guides attached to DSG 18-

69 (Version 1.2 (with clarifications)) (Dec.

5, 2013), available at

http://www.ct.gov/hix/lib/hix/CT_DSG_-

12132014 version_1.2 %28with_clarificati

Me. Health Data Organization, Current Data

Requests,

https://mhdo.maine.gov/datarequest.aspx......... 26

N.Y. State Dep’t of Health, Background and

Context for Conducting Literature Review,

http://www.health.ny.gov/statistics/chac/us

efulcha/background_htim ..................ccccecceceeeeeeeees 28

Onpoint Health Data, Data Submission Guide

for the Vt. Health Care Uniform Reporting

& Evaluation System (VHCURES) (Version

2.0) (July 2015), available at

http://www.onpointhealthdata.org/clients/v

hcures/docs/onpoint_vhcures_dsg_v20.pdf ........ 20

State of Vt., Green Mountain Care Board:

GMCB Advisory Committee Members,

http://gmcboard. vermont. gov/advisory_grou

TEARS See Seen 15

Vt. Health Care Uniform Reporting and

Evalulation System (VHCURES),

http://gmcboard.vermont.gov/vhcures................ 11

OTHER MATERIALS

Action Brief, Price Transparency: Now More

than Ever (May 2012), available at

https:/Awww.nbch.org/nbch/files/ccLibraryF

iles/Filename/000000002934/Final%20pric

Amanda Van Vleet & Julia Paradise, Kaiser

Family Found., The State Innovation

Models (SIM) Program: An Overview (Dec

09, 2014), available at

http://kff. org/medicaid/fact-sheet/the-state-

EES EEL Se eae 34

APCD Council, Interactive State Report Map,

http://www.apcdcouncil.org/state/map............... 16

APCD Council et al., Model All-Payer Claims

Database (APCD) Legislation (May 2015),

avauable at

http://Awww.apcdcouncil.org/publication/mo

del-all-payer-claims-database-legislation.......... 14

ASC X12, Membership,

http://www.x12.org/x12org/mbrship/mbr_li

aa eda ach lalla decal 8

Ca. Healthcare Performance Info. Sys. (CHPI):

Board of Directors,

http://www.chpis.org/about/board._aspx.............. 26

Multi-Payer Claims Database (MPCD),

http://www.chpis.org/programs/mpcd_aspx........ 15

x

Carol Cronin, Business Coalitions on Health:

Their Activities and Impact, Joint

Commission 20 J. Quality Improvement

EN AEST STEEL CS LT Sere aT

Catalyst for Payment Reform (CPR):

CPR Members,

http://www.catalyzepaymentreform.org/site

-map/cpr-membe?®s .....................00sseseeeeeeeeeeeeeeeeeee

Report Card on State Price Transparency

Laws 2 (July 2015), available at

http://www.catalyzepaymentreform.org/im

ages/documents/2015_Report_PriceTransL

| ARRESTS AE SEN ee

David Kindig, What Are We Talking About

When We Talk About Population Health?,

Health Affairs Blog (April 6, 2015),

http://healthaffairs.org/blog/20 15/04/06/wh

at-are-we-talking-about-when-we-talk-

about-population-healtb/ ......0............ccccceeeseeeeeees

David Kindig and Greg Stoddart, What is

Population Health?, Am. J. Pub. Health,

March 2003, at 380, available at

http://ajph.aphapublications.org/doi/pdf/10.

Be I veveccceccuscenesscerevencsttnecsseseveeees

23

xi

Gordon Mosser et al., Network for Reg]

Healthcare Improvement, Regional

Coalitions for Healthcare Improvement:

Definition, Lessons, and Prospects,

avauable at

http://www .improvingchroniccare.org/down

Health Care Cost Inst.:

2007-2011 Vermont Health Care Cost and

Utilization Report, Executive Summary,

avauable at

http://www.healthcostinstitute.org/files/200

1-

2011VermontHCCUR_DecemberRevision%

2012-11-14. pdf .....eccccececcecessecessessesesecersesseseeseeeeers 39

About HCCI,

http://www.healthcostinstitute.org/about.......... 39

Jo Porter et al., Robert Wood Johnson Found.,

The Basics of All-Payer Claims Databases:

A Primer for States (January 2014),

avauable at

https://www.nahdo.org/sites/nahdo.org/files

/publications/The%20Basics%200f%20All-

Payer%20Claims%20Databases.pdf .................. 37

Kaiser Family Found. et al., Employer Health

Benefits, 2014 Annual Survey 176 (“Kaiser

Family Report’), available at

http://files.kff.org/attachment/20 14-

employer-health-benefits-survey-

FEN EES TS Se 16, 22

Xi

Karl Finison, Onpoint Health Data, Tri-State

Variation in Health Services Utilization &

Expenditures in Northern New England

(June 2010), available at

https://www.apcdcouncil org/file/112/downl

oad?token=9TOEDREtz....2.... o.oo... eeceeseeeeeeeeeees

Leapfrog Group, LHRP Details for Hosps.,

http://www_leapfroggroup.org/Hospitals/Co

mpetitiveBenchmarking/4751817...................

Letter from Randel K. Johnson & Katie

Mahoney for Dep’t of Health & Human

Servs, Ctrs. Medicare & Medicaid Servs.

(CMS), U.S. Chamber of Commerce,

Comment Letter Re: Proposed Rule

Regarding the Availability of Medicare

Data for Performance Measurement, RIN

0938-AQ17

(Aug. 8, 2011), available at

http://www.regulations.gov/#!documentDet

ail; D=CMS-2011-0122-0079 0.0... ceeeceeeee es

Me. Health Management Coalition,

Committees and Workgroups,

http://www.mehmc.org/about-

us/committees-workgroup3S/ .............................

Nat’ Ass’n of Health Data Orgs. (NAHDO),

About NAHDO,

https:/Awww.nahdo.org/about ..........................

Nat Bus. Coalition on Health (NBCH):

About NBCH, http://www.nbch.org/About-

Bee ennnilessintscinnanntesencuminuseniiaininiauinasenannannees

see

NBCH Coalition Membership, State by

State, http://www.nbch.org/NBCH-

CE EE

Nat'l Fed’n of Indep. Bus. (NFIB), News

Release--Governor Could Finally Gwe

Consumers an Effective All-Payer Claims

Database (Apr. 20, 20165),

http://www.nfib.com/article/legislature-

passes-health-care-transparency-bill-

Nat] Council for Prescription Drug Programs

(NCPDP), 2015-2016 Work Group Co-

Chairs, available at

https://www.ncpdp.org/NCPDP/media/pdf/2

018_2016_Co-Chaire.pdf..................................

Pacific Business Group on Health (PBGH):

Members,

http://www.pbgh.org/about/members..............

Letter to Bill Sponsor Sen. Ed Hernandez

(Apr. 17, 2015), available at

http://www.pbgh.org/storage/documents/PB

GH_SB26_SupportLetterwAmend_pdf ...........

Patrick Miller, Why State All-Payer Claims

Databases Matter to Employers, 12 Pension

& Benefits Daily 114 (June 14, 2012).............

_— 8

XIV

Press Release, Health Care Transformation

Task Force, Major Health Care Players

Unite to Accelerate Transformation of U.S.

Health Care System (Jan. 28, 2015),

avauable at

http://www.hcttf.org/releases/20 15/1/28/maj

or-health-care-players-unite-to-accelerate-

transformation-of-us-health-care-system .......... 31

Press Release, X12, ASC X12 Announces

Technical Reports for Post-Adjudicated

Health Care Claims Data Reporting

Available (Aug. 13, 2012), available at

http://www.x12.org/x12org/docs/ACFCD5.p

Press Release, X12, Development of a Uniform

Medical Claims Payer Reporting Standard

(Aug. 15, 2011), available at

http://store.x 12.org/store/contact-us/8-

news/ 165-development-of-a-uniform-

medical-claims-payer-reporting-standard .........

Sabrina Corlette et al., Georgetown Univ.’s

Health Policy Inst., Cross-Cutting Issues:

Monitoring State Implementation of the

Affordable Care Act in 10 States:

Rate Review (Sept. 1, 2012) ....................222.000000-

Univ. of Il. at Chi., School of Public Health,

Principles of Epidemiology Course, Lesson

5 Public Health Surveillance, available at

http://www.uic.edu/sph/prepare/courses/ph

490/resources/epilesson05.pdf ..........................-.

INTEREST OF THE AMICI CURIAE

The National Association of Health Data Organi-

zations (NAHDO”) is joined by the All-Payer Claims

Database (“APCD”) Council, the Joint Public Health

Informatics Taskforce (“JPHIT”), the Center for Im-

proving Value in Health Care (“CIVHC’”), and the

Wisconsin Health Information Organization

(“WHIO”) as amici in support of the Petitioner. !

Founded in 1986, NAHDO is a national non-

profit membership and educational association, with

members drawn from public and private sector

health data organizations, including state and feder-

al agencies. NAHDO is dedicated to improving

health care data collection and use.

The APCD Council is a learning collaborative

that fosters information sharing and best practices

among those states which have developed or are

seeking to develop all-payer claims databases.

JPHIT is a coalition of nine national public

health associations, including the Association of

State and Territorial Health Officials (““ASTHO”)

and the National Association of County & City

Health Officials (“NACCHO”), which helps public

health agencies build modern information systems

across a spectrum of public health programs.

1 Pursuant to Supreme Court Rule 37.6, amici affirm that no

counsel for a party authored this brief in whole or in part and

that no person other than amici and their counsel made a mon-

etary contribution to its preparation or submission. Pursuant to

Supreme Court Rule 37.3, the parties have consented to the

filing of amicus briefs and their letters of consent are on file

with the Court.

CIVHC is a non-profit, non-partisan organization

that helps Colorado drive, deliver, and buy value in

health care. CIVHC is also the state-designated ad-

ministrator for Colorado’s all-payer claims database.

WHIO is an independent non-profit organization

dedicated to improving the quality, affordability,

safety, and efficiency of health care in Wisconsin,

and manages a successful voluntary all-payer claims

database.

Together, these organizations are deeply con-

cerned about the data gaps and inevitable negative

impact to health care reform that results from the

absence of employer-sponsored self-funded health

plans’ data, especially in otherwise comprehensive

statewide databases like Vermont’s all-payer claims

database. They consider this data especially critical

since it represents the health care experiences of a

large and growing set of working Americans in the

prime of their lives, and their families.

SUMMARY OF ARGUMENT

The Second Circuit misapprehended the funda-

mental nature of all-payer claims database (“APCD”)

data submissions when it presumed that Vermont's

are “burdensome, time-consuming, and risky” and

thus pre-empted under the Employee Retirement In-

come Security Act of 1974 (“ERISA”). See Pet. App.

25. The majority, like Liberty Mutual, failed to ex-

plain “exactly how” this “obvious burden” manifests.

In fact, they could not, because despite the dearth of

discussion below, even a cursory understanding of

how claims processing and APCD data submissions

work dispels the fallacy.

Under this Court’s established law, states may

not enact statutes that contradict ERISA’s core ob-

jective “to avoid a multiplicity of regulation[s] in or-

der to permit the nationally uniform administration

of employee benefit plans.” N.Y. State Conference of

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

514 U.S. 645, 657 (1995) (“Travelers”). However,

Vermont's APCD data submissions law does not con-

cern, much less contradict, this core objective. No

new or unique record-keeping is required. Moreover,

Vermont's claims and eligibility data submissions

are typical of those called for by other existing state

APCDs and health data aggregation programs, in-

cluding private, voluntary efforts.

Vermont's statute requires only the extraction,

formatting, and submission of claims and eligibility

data after it has already been collected, processed,

and retained by organizations like Liberty Mutual’s

third-party administrator, Blue Cross Blue Shield of

Massachusetts, in the routine course of business.

The statute has no impermissible connection with

employer-sponsored self-funded health plans, and

thus is not subject to ERISA pre-emption.

Contrary to Liberty Mutual’s position that APCD

data submissions are overly burdensome and inap-

propriate, the long-standing consensus position of

employers and business groups is that access to in-

dependent sources of claims and eligibility data is

critical for health care reform. Simply put, Liberty

Mutual is out of step with the trend in federal, state,

and private sector initiatives, all of which demand

increased transparency and measurability in health

care.

This case presents the Court with an opportunity

to reaffirm its rejection of the overly expansive view

of ERISA pre-emption adopted by the Second Cir-

cuit, particularly where it thwarts Vermont's emi-

nently reasonable efforts to improve health and

health care for its citizens—an area traditionally

regulated by the States. The Second Circuit decision

should be reversed.

ARGUMENT

I. ERISA’s Core Objective Of National Uni-

formity Is Not Contradicted By Ver-

mont’s Mandate To Submit Claims And

Eligibility Data.

State law may not contradict ERISA’s core objec-

tive “to avoid a multiplicity of regulation[s] in order

to permit the nationally uniform administration of

employee benefit plans.” Travelers, 514 U.S. at 657.

Vermont's APCD data submissions law does not con-

cern, much less contradict, this core objective.

The Second Circuit misapprehended the funda-

mental nature of APCD data submissions when it

presumed that they are “burdensome, time-

consuming, and risky” and “obviously intolerable” as

merely one of many “uncoordinated” regimes. Pet.

App. 25. As the dissenting judge highlighted, the

majority, like Liberty Mutual, failed to explain “ex-

actly how’ this “obvious burden” manifests. Pet. App.

39 (Straub, J., dissenting). In fact, they could not,

because despite the dearth of discussion below, even

a cursory understanding of how claims processing

and APCD data submissions work dispels the falla-

cy.

Employer-sponsored self-funded health plans and

their third-party administrators (all of whom we will

refer to as “payers” or the “payer”) are not required

to collect or retain any new records but, instead,

need only extract, format, and submit data they al-

ready collect and manage in the routine course of

business. Moreover, Vermont's mandatory claims

and eligibility data submissions are typical of those

that payers make to other state APCDs and private,

voluntary health data aggregation programs. Thus,

Vermont's APCD data submissions law has no im-

permissible connection with employer-sponsored

self-funded health plans.

A. No New Or Unique Record-Keeping Is

Required.

The Second Circuit erred by holding that Ver-

mont’s APCD data submissions law is pre-empted, in

part, because it requires certain “plan _ record-

keeping.” Pet. App. 23-25. The claims and eligibility

data at issue are already collected and retained by

payers in the routine course of business. Here, Blue

Cross Blue Shield of Massachusetts fulfills that duty

on behalf of Liberty Mutual and regularly supplies

Vermont's APCD with claims and eligibility data

from its systems for other employer-sponsored self-

funded plans. See J.A. 205 J 6 (explaining that for

2010 Blue Cross Blue Shield of Massachusetts re-

ported on a total of 7,605 unique members, some

3,667 of whom were members of plans for which it

acts as third-party administrator, and “[m)Jost, if not

all, of those plans are assumed to be ERISA plans’).

The form and content requirements for data

submissions to Vermont’s APCD (and other similar

data aggregation programs) follow a common set of

industry-driven technical standards adopted by the

U.S. Department of Health and Human Services

(“HHS”), under the Health Insurance Portability and

Accountability Act of 1996 (“HIPAA”), to standardize

electronic transactions between payers and health

care providers. Compare 45 C.F.R. pts. 160, 162

(adopting industry standards, as detailed below, for

standard electronic health care transactions), with

Vt. Regulation H-2008-01 (Pet. App. 107-141), Apps.

C2, D2, & E2 (mapping claims and eligibility data

submission requirements to the same standards)

(Vt. Regulation H-2008-01, Apps.”), available at

http://www.dfr.vermont.gov/sites/default/files/REG-

H-08-01.pdf. Therefore, contrary to the Second Cir-

cuit’s holding, no new or unique record-keeping is

‘red

HIPAA and its implementing regulations ensure

health insurance portability and simplify admin-

istration by driving standardization among health

care providers and payers for key electronic transac-

tions. See Health Insurance Portability and Ac-

countability Act of 1996 (HIPAA”), Pub. L. No.

104-191, 110 Stat. 1936; 45 C.F_R. §§ 162.923,

162.925 (mandating adherence to transaction stand-

ards for HIPAA covered entities, including health

plans and health care providers who interact elec-

tronically). These “transactions” span financial and

administrative activities, including:

e Health care claims or equivalent

encounter information.

e Health care payment and remit-

tance advice.

e Coordination of benefits.

e Health care claim status.

e Enrollment and disenrollment in a

health plan.

e Eligibility for a health plan.

e Health plan premium payments.

e Referral certification and authoriza-

tion.

e First report of injury.

Health claims attachments.

Health care electronic funds trans-

fers (EFT) and remittance advice.

e Other transactions that the [HHS]

Secretary may prescribe by regula-

tion.

45 C.F.R. § 160.103 (defining “transaction”) (empha-

sis added). Each transaction standard prescribes in

detail the data elements and protocol for exchanging

the information.

Claims data generally follow a three-step path

from health care provider to payer to APCD. First,

seeking payment for a patient encounter or other

service, a health care provider sends an electronic

transaction to the applicable payer (whether public,

like Medicare or Medicaid, or private, such as a

commercial insurer or an employer-sponsored self-

funded plan or its third-party administrator).

This claims transaction must adhere to HIPAA’s

specifications which, in turn, adopt industry-driven

consensus standards, according to the claim type.”

2 As is true for any health plan-third-party administrator con-

tractual relationship, under its HIPAA-mandated Business As-

sociate Addendum with Liberty Mutual, Blue Cross Blue Shield

of Massachusetts “shall be capable of transmitting electronic

data for which transaction standards have been promulgated in

For most claims, including medical (both profession-

al and institutional) and dental, HHS has endorsed

standards developed by the Accredited Standards

Committee X12 (ASC X12” or “X12”), a broad com-

mittee with membership from across the health care

and other industries.? 45 C.F.R. § 162.1102 (adopt-

ing ASC X12N 837 standards). For retail pharmacy

drug claims, HHS has adopted standards from the

National Council for Prescription Drug Programs

(“NCPDP”), which focuses on specific information ex-

changes within the healthcare community. ‘ Jd.

(adopting NCPDP standards). Both X12 and NCPDP

are American National Standards Institute (“ANSI”)

accredited standards developers.

Next, the payer processes the claim. The payer

provides information back to the provider and, if ap-

propriate, makes payment, again following HIPAA-

specified transaction standards. 45 C.F.R. § 162.1602

(adopting ASC X12N 835 standards for health claim

payment/advice and other standards for certain elec-

tronic funds transfers). The payer retains claims da-

ta in its own record-keeping system. Here, Liberty

Mutual’s third-party administrator agrees to retain

compliance with the HIPAA Electronic Transactions Rule, 45

CFR Parts 160 and 162.” J.A 66.

* A complete listing af ASC X12 members is available at

http://Awww.x12.org/x12org/mbrship/mbr_list.cfm (last visited

Sept. 3, 2015).

‘ A listing of current NCPDP Work Group Co-Chairs, including

representatives of payers, such as pharmacy benefits manage-

ment organizations CPBMs’), 18 available at

https://www.ncpdp.org/NCPDP/media/pdf/2015_2016_Co-

Chairs.pdf. PBMs play a role similar to third-party administra-

tors for processing prescription drug claims and also provide

APCD data submissions.

“auditable documentation” for two years (although

older claims may be disputed for an additional fee,

implying that such data is available). See J.A. 89.

Finally, the payer extracts the existing claims da-

ta from its system, based on appropriate criteria,

and formats it for submission to others to whom it is

obliged (or volunteers) to submit data, including,

where applicable, one or more APCDs. These claims

data extraction and formatting activities are per-

formed on a routine basis. For example, under the

Administrative Services Agreement, Liberty Mutual’s

third-party administrator is required to provide it

with “a paper copy of a monthly claims listing,” or at

Liberty Mutual’s election, the data will be provided

in other forms, including electronic format. J.A. 87-

88. Data submissions to Vermont’s APCD—like those

Liberty Mutual’s third-party administrator makes

for other employer-sponsored self-funded health

plans—occur monthly, quarterly, or annually, accord-

ing to the total number of individuals for whom it

pays claims. Pet. App. 128.

Eligibility data denotes individuals who are enti-

tled to receive care under a health plan, including

member demographic information and plan type.

The payer’s business necessarily dictates that it col-

lect and retain such data regarding its individual

members or beneficiaries. As with claims, a health

care provider sends an electronic transaction to the

payer to inquire as to eligibility and receives a payer

response, based on data retained in the payer’s sys-

tem. Again, HIPAA regulations adopt industry-

driven consensus standards for the information ex-

change. 45 C.F.R. § 162.1202 (adopting ASC X12N

270/271 standards for most inquiries and NCPDP

10

standards for retail pharmacy). For APCD and other

data submissions purposes, eligibility data is simi-

larly extracted from the payer's system and format-

ted accordingly.

By design, Vermont's APCD regulations closely

parallel the HIPAA transaction standards for claims

and eligibility data. Detailed element by element

mappings—found in a series of appendices to the

regulation aptly titled “Member Eligibility File Map-

ping to National Standards,” “Medical Claims File

Mapping to National Standards,” and “Pharmacy

Claims File Mapping to National Standards”—assist

payers in extracting data and formatting it for sub-

mission. See Vt. Regulation H-2008-01, Apps. For

instance, the “Principal Diagnosis” to be included in

medical claims data submissions maps to the same

field in the HIPAA-adopted ASC X12N 837 standard.

Id. at App. D2, 47 (Data Element MC041, Principal

Diagnosis, HIPAA reference 837/2300/HI/BK/01-2).

In the scant discussion of burden below, Liberty

Mutual implied that some special imposition accom-

panies Vermont’s requirement that APCD claims da-

ta submissions “includfe] such detail as the admis-

sion hour. . . expressed in military time HHMM in

the case of all inpatient claims.” Reply Brief for P1.-

Appellant Liberty Mutual at 17, Liberty Mut. Ins.

Co. v. Donegan, No. 12-4881 (2d Cir. July 17, 2013),

ECF No. 88 (internal citations omitted). Yet, that

admission time data is no more than the same in-

formation for the same field mandated by the ASC

X12N 837 standard, adopted in the HIPAA regula-

tions and routinely submitted by providers to payers,

as shown in Vermont’s mapping. Vt. Regulation H-

2008-01, Apps. at App. D2 (Data Element MC019,

11

Admission Hour, HIPAA Reference

837/2300/DTP/435/03).

B. The Claims And Eligibility Data Sub-

missions Mandated By Vermont Are

Typical Of Other State APCDs And

Health Data Aggregation Programs.

Vermont's mandatory statewide data aggregation

through its APCD offers an effective and efficient

approach to ensuring comprehensive representation

which, in turn, enables health care cost and utiliza-

tion studies important to Vermont. Today, the Ver-

mont APCD includes claims data “for 90 percent of

commercially insured [fully-insured and employer-

sponsored self-funded] Vermonters and 100 percent

of Medicaid and Medicare enrollees.” Green Moun-

tain Care Board, Vt. Health Care Uniform Reporting

and Evaluation System (VHCURES),

http://gmcboard.vermont.gov/vhcures (last visited

Sept. 3, 2015).

Because the claims and eligibility data submis-

sions required by Vermont closely parallel the

HIPAA transaction standards (which in turn adopt

X12 and NCPDP consensus standards), the data

Vermont collects is typical of other state APCDs and

health data aggregation programs. Using a simple

but lengthy chart, the United States Health Infor-

mation Knowledgebase (‘USHIK”), maintained by

HHS’s Agency for Healthcare Research and Quality

CAHRQ”), demonstrates this extensive overlap in

APCD data elements and X12 standards across sev-

eral statewide APCDs, including those of Vermont,

Maine, Massachusetts, Minnesota, New Hampshire,

and Tennessee. See AHRQ, USHIK, APCD to ASC

12

X12 Relationship Mapping,

https://ushik.ahrq.gov/APCDGroupings?system=apcd

&enableAsynchronousLoading=true (last visited

Sept. 3, 2015).

While the data extraction, formatting, and sub-

missions procedures they prescribe for payers vary

somewhat, the similarity in claims and eligibility da-

ta collected by state APCDs, including Vermont, is

further demonstrated by the references to the

HIPAA-adopted X12 and NCPDP standards uni-

formly made in their data submissions guides.® This

commonality in the claims and eligibility data ag-

gregated by state APCDs also enables regional stud-

ies and resource sharing among states. For instance,

such “harmonization” supported a recent multi-state

study on variations in health services utilization

across Maine, New Hampshire, and Vermont. See

J.A. 219-20; see generally Karl Finison, Onpoint

Health Data, Tri-State Variation in Health Services

5 States that mandate APCD submissions publish a data sub-

missions guide or similar resource instructing payers on appro-

priate data extraction, formatting, and submission procedures.

These guides also provide detailed references enabling payers

to link APCD data elements to those in their own systems. See,

e.g., Ctr. for Improving Value in Health Care (CIVHC), Colo.

All-Payer Claims Database Data Submission Guide 12-24, 27-

50, 62-58 (Version 6) (March 2014), available at

http://Awww.civhc. org/getmedia/c407 107 4-ecc4-457b-bd40-

72fee47ee639/Data-Submission-Guide- V6-March-2014-

FINAL_1.pdf.aspx/ (showing references to the X12 and NCPDP

standards for claims and eligibility data elements); Access

Health CT, Conn. All Payers Claims Database Data Submission

Guide, Data Content Guides attached to Data Submission

Guide 18-69 (Version 1.2 (with clarifications)) (Dec. 5, 2013)

(same), available at http:/www.ct.gov/hix/lib/hix/CT_DSG_-

12132014 _version_1.2_%28with_clarifications%29.pdf.

13

Utilization & Expenditures in Northern New Eng-

land (June 2010), avauable at

https://www.apcdcouncil.org/file/112/download?token

=9TOEDRtz.

Extracting, formatting, and submitting claims

data to APCDs and others is a routine, straightfor-

ward process for payers, which already have sophis-

ticated claims processing systems and information

technology capabilities. Even so, the APCD commu-

nity and interested stakeholders regularly collabo-

rate to further streamline the process. This addi-

tional standardization speeds up APCD data availa-

bility (which by its nature lags behind individuals’

receipt of health care services) and facilitates multi-

state studies. For instance, during the summer of

2011, X12 and the APCD Council began an initiative

to develop a “Uniform Medical Claims Payer Report-

ing Standard” through X12’s insurance subcommit-

tee and its working groups. Press Release, X12, De-

velopment of a Uniform Medical Claims Payer Re-

porting Standard (Aug. 15, 2011), available at

http://store.x12.org/store/contact-us/8-news/165-

development-of-a-uniform-medical-claims-payer-

reporting-standard.

Just one year later, X12 approved publication of

several “implementation guides” instructing states

and others that aggregate claims data on “eas[ing]

the burden for payers required to submit such data,

increas[ing] the quality of the data, and reduc[ing]

the implementation costs for the health care indus-

try.” Press Release, X12, ASC X12 Announces Tech-

nical Reports for Post-Adjudicated Health Care

Claims Data Reporting Available (Aug. 13, 2012),

avaulable at

14

http://www.x12.org/x12org/docs/ACFCD5.pdf. More

recently, the APCD Council published model legisla-

tion to guide states that may be considering APCD

authorization. APCD Council et al., Model All- r

Claims Database (APCD) Legislation (May 2015),

avauable at

http:/Awww.apcdcouncil.org/publication/model-all-

payer-claims-database-legislation.

These nationwide multi-stakeholder efforts to

further standardize APCDs and their data extrac-

tion, formatting, and submissions procedures reflect

the explicit intent expressed by some state legisla-

tures. For example, Nebraska requires its Health

Care Data Base Advisory Committee to “[ijnclude

discussions regarding the standardization of the Ne-

braska Health Care Data Base with other states and

regions and federal efforts concerning all-payer

claims databases.” Neb. Rev. Stat. § 71-9204(1)(g).

And in Virginia, where APCD submissions are vol-

untary, the data “shall be developed in a format that

allows comparison of information in the All-Payer

Claims Database with other nationwide data pro-

grams and that allows employers to compare their

employee health plans statewide and between and

among regions of the Commonwealth and national-

ly.” Va. Code Ann. § 32.1-276.7:1(E)(1).

Such legislatively-created advisory committees,

and other governance structures ranging from

boards to consultation requirements, exist in most

APCD states and address a wide array of issues.

Various business interests, including those of payers

and employers, are represented and often specifically

identified by state law. For instance, the Vermont

Green Mountain Care Board enabling statute re-

15

quires that the Board “shall establish a consumer,

patient, business, and health care professional advi-

sory group to provide input and recommendations to

the Board,” and currently includes payer representa-

tion. Vt. Stat. Ann. tit. 18, § 9374(e)(1); State of Vt.,

Green Mountain Care Board, GMCB Advisory Com-

muttee Members,

http://gmcboard.vermont.gov/advisory_groups/memb

ers (last visited Sept. 3, 2015). The Maine Health

Data Organization’s board must include two repre-

sentatives of “third-party payors,” selected from a

group that includes insurers and third-party admin-

istrators. Me. Rev. Stat. tit. 22, §§ 8702, 8703.

In another example, Massachusetts’s Center for

Health Information and Analysis is directed to “con-

sult with . . . affected payers, as applicable, to ensure

that the reporting requirements imposed under the

[APCD] regulations are not duplicative or excessive”

prior to promulgating regulations. Mass. Gen. Laws

ch. 12C, § 5. Most recently, Arkansas’s law estab-

lishes a “Healthcare Transparency Initiative Board”

that must include “[t]wo representatives from the

health insurance industry” and a self-insured em-

ployer representative. S. 956, 90th Gen. Assembly,

Regular Sess., at 6 (Ark. 2015) (to be codified at Ark.

Code Ann. § 23-61-905) (Ark. APCD Statute’),

available at

http://www.arkleg.state.ar.us/assembly/2015/2015R/

Acts/Act1233.pdf.

Finally, payers routinely engage in private, vol-

untary health data aggregation initiatives that nec-

essarily rely on claims data submissions. California’s

multi-payer claims database, part of the California

Healthcare Performance Information System

16

(CHPI”), accepts claims data from “the state’s three

largest health plans”: Anthem Blue Cross, Blue

Shield of California, and UnitedHealthcare. CHPI,

Multi-Payer Claims Database (MPCD),

http://www.chpis.org/programs/mpcd_aspx (last visit-

ed Sept. 3, 2015). This database includes both in-

sured and self-funded claims, along with Medicare

data, representing some 12 million lives. Jd.

These and other private, voluntary efforts (see in-

fra Section ITI.C) demonstrate the ease with which

payers can extract, format, and submit claims and

eligibility data for data aggregation purposes. But

while the sheer data volume may sound impressive,

such efforts inevitably result in only partial views.

State-mandated APCDs that aggregate fully-insured

and employer-sponsored self-funded claims, as well

as Medicaid and Medicare data (like Vermont’s and

others’), ensure the broadest representation and are

uniquely positioned to offer data analyses and re-

ports attuned to local needs. See APCD Council, Jn-

teractwe State Report Map, available at

http://www.apcdcouncil.org/state/map (last visited

Sept. 3, 2015) (depicting current and planned data

coverage for statewide APCDs). Employer-sponsored

self-funded claims data is particularly critical to

state APCDs because it represents a growing seg-

ment of healthy working adults in the prime of their

lives, and their families. See Kaiser Family Found.

et al., Employer Health Benefits, 2014 Annual Sur-

vey 176 (‘Kaiser Family Report”), available at

http:/Miles.kff org/attachment/20 14-employer-health-

benefits-survey-full-report (explaining growth in

percentage of insured workers covered by self-funded

plans from 44% to 61% since 1999).

17

C. Vermont’s APCD Data Submissions

Law Has No Impermissible Connec-

tion With Employer-Sponsored Self-

Funded Health Plans.

Vermont's APCD data submissions law does not

“create[] [an] impediment to an employer's adoption

of a uniform benefit administration scheme,” but in-

stead seeks “to address uniquely local social and

economic problems.” See Fort Halifax Packing Co.,

Inc. v. Coyne, 482 U.S. 1, 14, 19 (1987). The Vermont

statute requires only the extraction, formatting, and

submission of claims and eligibility data after it has

already been collected, processed, and retained by

the payer. Thus, it also does not impermissibly “af-

fect[] an ERISA plan’s ‘system for processing claims

and paying benefits.” Egelhoff v. Egelhoff, 532 U.S.

141, 150 (2001) (quoting Fort Halifax Packing Co.,

482 U.S. at 10).

This Court has concluded that state statutes that

have an “indirect economic influence” on ERISA

plans do not “relate to” them as long as the statute

does not “force an ERISA plan to adopt a certain

scheme of substantive coverage or effectively restrict

its choice of insurers.” Travelers, 514 U.S. at 668.

For example, in Travelers, this Court held that a

state statute requiring hospitals to collect surcharg-

es from patients covered by commercial insurers was

not pre-empted by ERISA because it only had an

“indirect economic influence” on the cost of insurance

policies. Jd. Similarly, Vermont's statute does not re-

quire an ERISA plan to collect new or unique data or

to endure any undue financial burdens. As the Sec-

ond Circuit dissent suggests, the cost of submitting

18

claims and eligibility data in the required format is

minimal and, at most, will have a minor and “indi-

rect economic influence” on ERISA plans, in large

part because employer-sponsored self-funded plans

(or as in Liberty Mutual’s case, their third-party

administrators) “already have [such claims data] in

their possession.” Pet. App. 39-44.

Some state statutes have been held to have a

“connection to” ERISA plans if they interfere with

“nationally uniform plan administration.” For in-

stance, this Court held that ERISA pre-empted a

Washington statute governing the payment of bene-

fits—“a central matter of plan administration”—to

plan beneficiaries, Egelhoff, 532 US. at 147-48, and

a Pennsylvania anti-subrogation law that “require[d]

plans to calculate benefit levels in Pennsylvania

based on expected liability conditions that differ[ed]

from those in States that ha[d] not enacted similar . .

. legislation.” FMC Corp. v. Holliday, 498 U.S. 52, 60

(1990).

But unlike the state statutes in FMC Corporation

and Egelhoff, the Vermont APCD data submissions

law does not require plan administrators to choose

between complying with state law or the ERISA plan

itself, nor does it interfere with “nationally uniform

plan administration” by requiring administrators to

offer substantively different ERISA plans in differ-

ent states. Compare Fort Halifax Packing Co., Inc.,

482 U.S. at 14 (concluding that the state’s statute

“create[d] no impediment to an employer's adoption

of a uniform benefit administration scheme” because

the law did not “put the employer to the choice of ei-

ther (1) integrating a state-mandated ongoing bene-

fit plan with an existing plan or (2) establishing a

19

separate plan to process and pay benefits under the

plan required by the State.”), with Egelhoff, 532 U.S.

141 at 147 (statute pre-empted because it bound

“plan administrators to a particular choice of rules

for determining beneficiary status. The administra-

tors must pay benefits to the beneficiaries chosen by

state law, rather than to those identified in the plan

documen... >.

Vermont’s statute merely calls for claims and eli-

gibility data aggregation, after it has already been

collected and retained by payers, to address “unique-

ly local social and economic problems,” such as rising

health care costs and the accompanying need for da-

ta transparency. This Court's precedent weighs

against “disabling it from attempting to address”

these issues since the statute “creates no prospect of

conflict with a federal statute.” See Fort Halifax

Packing Co., Inc., 482 U.S. at 19. Moreover, Ver-

mont’s APCD data submissions law does not “frus-

trate plan administrators’ continuing obligation to

calculate uniform benefit levels nationwide.” FMC

Corp., 498 U.S. at 60.

Finally, below, Liberty Mutual implied (and the

Second Circuit apparently agreed) that its ERISA

obligations may be thwarted because Vermont's

APCD data submissions law requires it to compro-

mise individual privacy. Pet. App. 25, 27-29, 29 n.13.

To the contrary, Vermont mandates that payers ap-

ply a one-way, non-reversible hash algorithm® to re-

6 “Hashing” is sometimes referred to as a form of “encryption,”

but the notable difference is that unlike most encryption

achemes that allow for data decryption (i.e., recovery), with an

appropniate “key,” hashing is a one-way, non-reversible process

that replaces the otherwise sensitive data with gibberish.

20

move data elements that directly identify an indi-

vidual when formatting (and prior to making) their

data submissions, using software that Vermont pro-

vides. J.A. 133. As further explained in Vermont's

current data submission guide:

[Vt.’s contractor]’s data collection sys-

tem ensures that direct member identi-

fiers remain secure — both at rest and

in motion — through the use of a feder-

ally recommended hashing algorithm.

This hashing is not performed by [Vt.’s

contractor]; instead, it is performed lo-

cally by health plans for their third-

party administrators]. Using [Vt.’s con-

tractor]’s system, all fields specified as

“encrypted” in Vermont’s Regulation H-

2008-01 are hashed upon preparation

for submission, remain solely within the

health plan’s platform, and are neither

transmitted nor received by [Vt.’s con-

tractor].

Onpoint Health Data, Data Submission Guide for

the Vt. Health Care Uniform Reporting & Evaluation

System (VHCURES) 13 (Version 2.0) (July 2015),

available at

http://www.onpointhealthdata org/clients/vhcures/do

cs/onpoint_vhcures_dsg _v20.pdf. Stated differently,

in contrast to the payers’ systems, the data main-

tained by Vermont’s APCD does not include the per-

sonally identifiable data so attractive to cyber-

attackers, and the hashed information cannot be

“decrypted” or otherwise recovered. At the same

time, requiring payers to use the same hashing soft-

ware supports important longitudinal studies that

21

span claims data submitted by different payers, pro-

vided that the underlying member data matches pri-

or to its hashing.

Il. The Long-Standing Consensus Position

Of Employers And Business Groups Is

That Access To Claims And Other Utiliza-

tion Data Is Critical For Health Care Re-

form.

Contrary to Liberty Mutual’s position that APCD

data submissions are overly burdensome and inap-

propriate, employers and business groups have long

advocated for and supported greater healthcare data

transparency. In the late 1970s and early 1980s,

“business health care coalitions,” composed mainly of

employer-purchasers, grew in response to rapidly es-

calating health care costs, and data initiatives

played an important role. See generally Carol Cro-

nin, Business Coalitions on Health: Their Activities

and Impact, Joint Commission 20 J. Quality Im-

provement 376, 376-80 (1994).

Such concerns drove the creation of amicus the

National Association of Health Data Organizations

(NAHDO”) in 1986 by the Washington Business

Group on Health and the Intergovernmental Health

Policy Project at George Washington University in

an effort to facilitate coordination among state-level

health data agencies and promote public-private co-

operation. See NAHDO, About NAHDO,

https://www.nahdo.org/about (last visited Sept. 3,

2015).

These activities have greatly expanded in number

and participation—no surprise since today employers

provide health benefits for some 149 million non-

22

elderly Americans, with 61% covered by a plan that

is at least partially self-funded. Kaiser Family Re-

port at 56, 174.

“Health care performance indicator information

is a public good, whereby all patients, purchasers,

and providers should have access to a common set of

performance information.” Patrick Miller, Why State

All-Payer Claims Databases Matter to Employers, 12

Pension & Benefits Daily 114 (une 14, 2012) (Why

APCDs Matter”) (emphasis added) (quoting Ted von

Glahn, senior director, Pacific Business Group on

Health).7

From the perspective of the business community,

APCDs provide an independent source of data, inde-

pendence being a characteristic important for culti-

vating employee trust. Nat] Bus. Coal. on Health,®

Action Brief, Price Transparency: Now More than

Ever (May 2012), avauable at

https://www.nbch.org/nbch/files/ccLibraryFiles/Filen

ame/000000002934/Final%20price%20transparency.

pdf (emphasizing the use of independent data

sources to foster employee trust and contrasting Or-

7 The Pacific Business Group on Health is one of the nation’s

most prominent employer-purchaser coalitions, based in no

small part on the high profile of its corporate and public agency

members. A complete membership list is available at

http://www.pbgh.org/about/members (last visited Sept. 3, 2015).

*Founded in 1992, the National Business Coalition on Health

CNBCH”) includes 52 business health coalitions nationwide

that represent over 4,000 employers and some 35 million em-

ployees and their families. For more information about NBCH,

see http:/hwww.nbch.org/About-NBCH (last visited Sept. 3,

2015). A complete membership list 18 at

http://www.nbch.org/NBCH-Coalition-Members (last visited

Sept. 3, 2015).

23

egon’s mandatory APCD—created by a neutral party

which, in turn, was overseen by an “all-stakeholder”

board—to information from health plans, employers,

or the government that employees may perceive as

biased). Because large, self-insured employers need

representative information, “every state[] needs to

implement an APCD.” Why APCDs Matter at 118

(quoting Barbara Belovich, executive director,

Health Action Council Ohio).

The value placed on APCDs by the business

community is dramatically highlighted in a recent

employer-supported 50-state price transparency re-

port card—the only five states with non-failing

grades have a statutorily-created APCD. Catalyst for

Payment Reform, Renort Card on State Price Trans-

parency Laws 2 (July 2015), available at

http://www.catalyzepaymentreform.org/images/docu

ments/2015_Report_PriceTransLaws_06.pdf.®

Small business groups also support APCDs as a

trusted resource for their employees. Reacting to

Washington State's new mandatory-submissions

APCD law, the Nat] Federation of Independent

Business (“NFIB”) stated, “[small-business owners,

employees, and their families] deserve access to

meaningful cost and quality information to make in-

formed health-care decisions. This APCD is the

foundation for better information and lower costs. . .

. Experience in other states has shown that without

® Catalyst for Payment Reform’s members include some of the

nation’s largest employers (e.g., AT&T, FedEx, GE, Walmart),

public employee and retiree organizations, and Medicaid agen-

cies. A complete member list is available at

http://www.catalyzepaymentreform org/site-map/cpr-members

(ast visited Sept. 3, 2015).

24

a mandate, it is impossible to provide a comprehen-

sive picture of the cost and quality of health care.”

NFIB, News Release--Governor Could Finally Gwe

Consumers an Effective All-Payer Claims Database

(Apr. 20, 2015),

http://www.nfib.com/article/legislature-passes-

health-care-transparency-bill-68901/ (commenting

on Wash. E.S.S.B. 5084, enacted May 14, 2015, as

Wash. Rev. Code ch. 246, § 2).

Business health care coalitions continue to press

for APCD expansion. Despite large-scale voluntary

efforts in California (see “CHPI,” supra Section I.B),

the Pacific Business Group on Health recently went

on the record in support of legislation to create a new

“California Health Care Cost and Quality Database”

that includes, among other elements, mandatory

claims data submissions. See S. 26, 2015-2016 Reg.

Sess. (Ca. 2015) (introduced May 28, 2015), available

at https:/Megiscan.com/CA/bill/SB26/2015; Pac. Bus.

Grp. on Health Letter to Bill Sponsor Sen. Ed Her-

nandez (Apr. 17, 2015), available at

http://www.pbgh.org/storage/documents/PBGH_SB2

6_SupportLetterwAmend_pdf (supporting S. 26 with

the addition of amendments, “[i]nformation on how

well care is provided and how much it costs is im-

portant to improving quality and addressing cost

containment in California”).

Broader health data transparency efforts, includ-

ing Medicare claims data releases, as called for in

the Patient Protection and Affordable Care Act (“Af-

fordable Care Act”) have also garnered support from

high-profile business groups. See Pub. L. No. 111-

148, § 10332, 124 Stat. 119, amended by the Health

Care and Education Reconciliation Act of 2010, Pub.

25

L. No. 111—152, 124 Stat. 1029; see infra Section

I1.A. “The U.S. Chamber of Commerce and our

member companies have long advocated in

support of the release of medical claims data to

facilitate performance reporting that would reflect

provider quality and improve transparency while en-

suring beneficiary privacy.” Letter from Randel K.

Johnson & Katie Mahoney for Dep’t of Health &

Human Servs, Ctrs. for Medicare & Medicaid Servs.

(“CMS”), U.S. Chamber of Commerce, Comment Let-

ter Re: Proposed Rule Regarding the Availability of

Medicare Data for Performance Measurement, RIN

0938-AQ17 (Aug. 8, 2011), available at

http://www.regulations.gov/#!documentDetail;D=CM

S-2011-0122-0079 (supporting “broader and richer

uses” of Medicare claims data). !°

Beyond their roles in advocacy and as data con-

sumers, employers and business groups provide

hands-on support and leadership for APCDs and

other health data aggregation programs. As ex-

plained above, many states’ APCD authorizing stat-

utes call for advisory committees and other govern-

ance structures, populated, in part, by employers

and business groups. See supra Section I.B; see, e.g.,

10T¢t seems incongruous that the U.S. Chamber of Commerce

would advocate for greater release of public payer claims data

to improve health data transparency, while below, as amicus, it

argued that similar claims data releases by employer-

sponsored self-funded plans and their third-party administra-

tors to state APCDs would have a “deleterious impact” on em-

ployers and could even result in employers decreasing the

health benefits they provide. Brief of Amicus Curiae Chamber

of Commerce of the U.S.A. in Support of Reversal at 2, 6, 10-11,

Liberty Mut. Ins. Co. v. Donegan, No. 12-4881 (2d Cir. Apr. 9,

2013), ECF No. 64.

26

Ark. APCD Statute (specifying Healthcare Transpar-

ency Initiative Board members must include repre-

sentatives of self-insured and small employers); Co-

lo. Rev. Stat. § 25.5-1-264 (APCD Advisory Commit-

tee must include representatives of both small and

large employers). Board membership rolls for private

health data aggregation programs—typically time-

consuming volunteer activities for busy businesspeo-

ple—provide further evidence of the priority placed

on fostering greater data transparency. See, e.g.,

CHPI, Board of Directors,

http://www.chpis.org/about/board.aspx (last visited

Sept. 3, 2015); Maine Health Management Coali-

tion, ll Committees and Workgroups,

http://$www.mehmc.org/about-us/committees-

workgroups/ (last visited Sept. 3, 2015) (describing

its thirteen-member Board of Directors as including

seven employers/plan sponsors).

That employers and business groups support the

public good provided by APCDs and other health da-

ta programs comes as no surprise. They recognize

that transparency produces better informed employ-

er-purchasers and employee-consumers, while ena-

bling data-driven cost containment, advocacy, and

policymaking. In addition to public reporting and re-

search studies, some creative businesses have sought

to benefit even more directly by making their own

APCD data release requests. For example, the Maine

APCD has apparently accepted at least two data re-

1! The Maine Health Management Coalition has received mul-

tiple data releases from Maine's APCD. See Maine Health Data

Organization, Current Data Requests,

https:/Amhdo. maine. gov/datarequest.aspx (last visited Sept. 3,

2015).

27

lease requests in support of self-insured employer

reinsurance activities. See Maine Health Data Or-

ganization, Current Data MRequests 12-13,

https://mhdo.maine.gov/datarequest.aspx (last visit-

ed Sept. 3, 2015) (explaining data requests by Inte-

grated Benefit Solutions, LLC and the Human Capi-

tal Resource Group).

Individual employers, like Liberty Mutual, inevi-

tably benefit from the increased transparency pro-

vided by APCDs and other health data aggregation

programs. They should not be allowed to hide behind

an overly expansive reading of ERISA pre-emption

that this Court has previously rejected and free ride

on others’ data.

Il. Liberty Mutual Is Out Of Step With The

Trend In Federal, State, And Private Sec-

tor Initiatives Demanding Increased

Transparency And Measurability In

Health Care.

While the appropriate role of the federal govern-

ment in reforming the individual and small group

health insurance markets may continue to be debat-

ed for some time, federal and state policymakers,

health care industry leaders, and policy experts have

found common ground for more than a decade on the

need to improve patient outcomes and reduce the

rate of rising health care costs in the United States.

In recognition of the need to realign economic incen-

tives across the health care sector, Congress and the

Administration have undertaken bipartisan efforts

to reform Medicare’s payment systems—a key driver

of reforms in the nation’s other public and private

health care payment systems. The success of these

28

efforts depends in significant part on the availability

of data from the broadest possible cross-section of

the community to facilitate the measurement of cost,

quality, and performance of our health care system.

The most commonly available and standardized

data for such purposes are payers’ claims and eligi-

bility data. Such data plays a growing role in helping

federal, state, and local governments, and private

sector stakeholders, meet the challenges of improv-

ing “population health”! because of its capacity to

provide a holistic view of health care consumers’ in-

teractions with various components of a community's

health care system, including information about the

demographics of consumers receiving care, care set-

\2 As health reform efforts have taken hold in the United States,

health policy experts have begun using the term “population

health” to refer to “the health outcomes of a group of individu-

als, including the distribution of such outcomes within the

group.” David Kindig and Greg Stoddart, What is Population

Health?, Am. J. Pub. Health, March 2003, at 380, available at,

http://ajph. aphapublications.org/doi/pdf/10.2105/AJPH.93.3.380;

see also David Kindig, What Are We Talking About When We

Talk About Population Health?, Health Affairs Blog (April 6,

2015), http://healthaffairs.org/blog/20 15/04/06/what-are-we-

talking-about-when-we-talk-about-population-health/ (urging

that “population health” be used to refer to geographic popula-

tions, and that terms such as “population health management”

and “population medicine” describe “activities limited to clinical

populations and a narrower set of health outcome determi-

nants”); N.Y. State Dep’t of Health, Background and Context

for Conducting Literature Review,

http://www.health.ny.gov/statistics/chac/usefulcha/background.

htm (last visited Sept. 3, 2015) (The population health per-

spective includes a focus on resource allocation and accounta-

bility, implying the need for measures of health outcomes and

evidence linking interventions to those outcomes”).

29

tings, types and patterns of care, and, given the re-

imbursement purpose for the data, the cost of care.

Providers have been submitting electronic claims

data in a standardized format for over a decade in

response to HIPAA and its implementing regulations

governing “standard transactions.” See supra, Sec-

tion I.A. In contrast, the electronic storage and

availability of detailed clinical data was not signifi-

cantly advanced until the passage of the Health In-

formation Technology for Economic and Clinical

Health (HITECH”) Act, enacted under Title XIII of

the American Recovery and Reinvestment Act of

2009 (‘ARRA”), Pub. L. No. 111—5, 123 Stat. 115.5

Clinical data in electronic health records

(“EHRs”) can provide a more fulsome picture of a

particular patient, help identify medical conditions,

and facilitate analysis of the health status of a pro-

vider group’s full patient population. However, while

electronic health records hold great promise for

broader population health management, particularly

when effectively integrated with claims data, the

availability of EHRs for such purposes remains lim-

ited. Unlike claims and eligibility data, the clinical

data contained in electronic health records are not

yet sufficiently standardized or shared across organ-

izational, vendor, and geographic boundaries to

permit population-wide analytics. Moreover, com-

pared to long-studied claims data, as found in Ver-

mont’s and other APCDs, the level of clinical detail

\8 Despite the broad wording found in Vt. Stat. Ann. tit. 18, §

9410, Vt. Regulation H-2008-01 (Pet. App. 107-141), at issue

here, is focused on health plan (j.e., payer) claims and eligibility

data.

30

found in EHRs, including physician notes, may raise

further privacy concerns.

A. The Affordable Care Act And The

Medicare Access And CHIP Reauthor-

ization Act Of 2015 Are Only The Most

Recent Examples Of Bipartisan Fed-

eral Support For Greater Health Data

Transparency.

In health care reform legislation enacted over the

past fifteen years,'* Congresses led by both parties

have sought to leverage the purchasing power of

Medicare to drive reform in the health care sector as

a whole. Since passage of the Affordable Care Act,

efforts have accelerated among public and private

purchasers of health care, including employers, to

become active purchasers of care at lower cost and

higher value. The Secretary of HHS’s announcement

in January 2015 that Medicare would shift 50 per-

14 See, e.g., the Medicare, Medicaid, and SCHIP Benefits Im-

provement and Protection Act of 2000, Pub. L. No. 106-554,

114 Stat. 2763 (establishing one of the first Medicare pay-for-

performance initiatives). Sections 646, 649, & 721 of the Medi-

care Prescription Drug, Improvement, and Modernization Act

of 2003, Pub. L. No. 108-173, 117 Stat. 2066 (creating pro-

grams promoting the use of health information technology and

pay-for-performance models to improve the care of chronically

ill Medicare beneficiaries); Section 5001(b) of the Deficit Reduc-

tion Act of 2005, Pub. L. No. 109-171, 120 Stat. 4, and Section

131(d) of the Medicare Improvements for Patients and Provid-

ers Act of 2008, Pub. L. No. 110-275, 122 Stat. 2494 (authoriz-

ing hospital value-based purchasing programs). See also Exec.

Order No. 13,335, 69 Fed. Reg. 24,059-61 (Apr. 27, 2004) (es-

tablishing the HHS Office of the National Coordinator for

Health Information Technology under the Bush Administra-

tion).

31

cent of its provider payments into alternative pay-

ment arrangements such as accountable care organi-

zations or bundled payments by 2018 was promptly

followed by public commitments from representa-

tives of health care payer, provider, and purchaser

organizations (including the Pacific Business Group

on Health) to have 75 percent of their respective

businesses operating under value-based payment ar-

rangements that focus on the “Triple Aim” of better

health, better care, and lower costs by January 2020.

Press Release, Health Care Transformation Task

Force, Major Health Care Players Unite to Accelerate

Transformation of U.S. Health Care System (Jan. 28,

2015), available at

http://www.hcttf.org/releases/2015/1/28/major-

health-care-players-unite-to-accelerate-

transformation-of-us-health-care-system.

Four months later, a Republican-led Congress

expanded Medicare data-sharing provisions in the

Medicare Access and CHIP Reauthorization Act of

2015 (“MACRA”), Pub. L. No. 114-10, 129 Stat. 87,

which President Obama signed into law on April 16,

2015. MACRA not only converts Medicare’s payment

structure for physicians to a pay-for-performance

model, it also expands HHS’s ability to share stand-

ardized extracts of Medicare Part A, B, and D claims

data with qualified public and private entities for

purposes of “assisting providers of services and sup-

pliers in developing and participating in quality and

patient care improvement activities, including devel-

oping new models of care.” Jd at § 105 (a)(2)(B).

Section 10332 of the Affordable Care Act had es-

tablished the “Qualified Entity” program to allow the

Secretary of HHS to provide Medicare claims data

32

under Parts A, B, and D to Qualified Entities for the

evaluation of the performance of providers of ser-

vices and suppliers—and requires recipients to pub-

lish their analyses. 42 U.S.C. § 1395kk(e). MACRA §

105(a) expands the program and, beginning July 1,

2016, allows certain Qualified Entities—including

employers—to use Medicare claims data to conduct

“private analyses” and provide or sell such data for

private use.!° MACRA leaves unchanged the expec-

tation established in Affordable Care Act § 10332

that Qualified Entities will not rely solely on Medi-

care data to conduct performance measurements, but

will include claims data from other sources. 42

U.S.C. § 1395kk(e)(4)(B)(Giii); see also 42 C.F.R. §§

401.703(h), 401.709(b)(2) (establishing a conditional

approval process for applicants that do not have ac-

cess to other claims data at the time of their applica-

tion to become a “Qualified Entity’).

Employers, as defined in ERISA § 3(5), are ex-

pressly eligible to receive Medicare claims data

analyses for purposes of providing health insurance

to their employees and retirees. MACRA §§

105(aX1)(B)G) & (9)(A)Gii). Passage of provisions

such as the Qualified Entity data-sharing program

reflects Congress’s intent to minimize “information

silos” in the health care sector and to spur broader

data sharing as a means of facilitating delivery and

payment system reform at the federal and state lev-

els, and in the private health care sector.

16 Insurers may not receive such analyses from Qualified Enti-

ties unless they are providing the Qualified Entity with their

own claims data. MACRA §§ 105(a)(1)(B) Gi) & (9)(A)(iv).

33

In further recognition of the importance of the

states’ role in reform as laboratories of innovation,

Congress authorized HHS’s Centers for Medicare &

Medicaid Services (“CMS”) to establish the State In-

novation Models initiative under Affordable Care Act

§ 3021. Social Security Act, §1115A(b)(2)(B)(xi), 42

U.S.C. § 1315a. The State Innovation Models pro-

gram allows CMS to award grants to states to design

and test innovative, state-based multi-payer health

care delivery and payment systems that will foster

broader innovation and health system transfor-

mation to improve population health across commu-

nities covered by both public and private payers.

A central premise of the State Innovation Models

grant program is that states are in the best position

to enlist all stakeholders in the community in con-

tributing to public and private reform efforts. In its

announcement of cooperative agreement funding op-

portunities for “Round 1” State Innovation Models

grants in August 2012, CMS’s Center for Medicare &

Medicaid Innovation (the “Innovation Center”) de-

clared:

States are key partners in developing

and testing community-centered health

systems and proving that they can de-

liver significantly improved cost, quality,

and population health performance re-

sults for Medicare, Medicaid, and CHIP

beneficiaries. States have policy and

regulatory authorities, as well as ongo-

ing relationships with private payers,

health plans, and providers, that can

help drive and accelerate performance

of payment and service delivery models

34

across the spectrum of public and pri-

vate payers. The Innovation Center in-

tends to provide States with funding to

design and test models that use the full

range of their policy authorities and

their ability to convene a broad array of

stakeholders, both private and public, to

enhance and accelerate the develop-

ment of innovative health system mod-

els that result in better health, better

care and reduced costs through im-

provement.

CMS, Center for Medicare & Medicaid Innovation, State

Innovation Models: Funding for Model Design and

Testing Assistance 2, Cooperative Agreement,

Amended Announcement, Funding Opportunity No.

CMS-1G1-12-001 (Aug. 23, 2012), available at

http:/Annovation.cms.gov/Files/x/StateInnovation_F

OA._pdf; see also Amanda Van Vleet & Julia Paradise,

Kaiser Family Found., The State Innovation Models

(SIM) Program: An Overview (Dec 09, 2014), availa-

ble at http://kff.org/medicaid/fact-sheet/the-state-

innovation-models-sim-program-an-overview/.

Vermont’s “Blueprint for Health” is an example of

the very type of state-led innovation effort the State

Innovation Models program is designed to encourage.

Vermont was among the first six states to receive a

State Innovation Models grant. See CMS, State In-

novation Models Initiative: General Information,

http:/Annovation.cms.gov/initiatives/state-

innovations/ (last visited Sept. 3, 2015). Vermont law

defines the “Blueprint” as a “program for integrating

a system of health care for patients, improving the

health of the overall population, and improving con-

35

trol over health care costs by promoting health

maintenance, prevention, and care coordination and

management.” S. 88, 2009-2010 Sess. (Vt. 2010)

(amending Vt. Stat. Ann. Tit. 18, ch. 13).

The Affordable Care Act also reflects Congres-

sional intent that states have adequate means to

perform their traditional regulatory role of evaluat-

ing health care premium rate increases. Affordable

Care Act § 1003 directed the HHS Secretary, “in con-

junction with the States,” to establish a process for

annually reviewing health insurers’ rate increases.

42 U.S.C. § 300gg-94. To strengthen states’ rate re-

view processes, the Affordable Care Act provided

$250 million in grants to enhance states’ conduct of

“vigorous reviews that assure cost estimates use ver-

ifiable medical trend data and realistic administra-

tive cost projections.” CMS, Rate Review Works: Ear-

ly Achievements of Health Insurance Rate Review

Grants, available at

https://www.cms.gov/CCIIO/Resources/Files/Downlo

ads/rate_review_report_092011.pdf; see also Sabrina

Corlette et al., Georgetown Univ.’s Health Policy

Inst., Cross-Cutting Issues: Monitoring State Imple-

mentation of the Affordable Care Act in 10 States:

Rate Review (Sept. 1, 2012).

Forty-three states, including Vermont and the

District of Columbia, have received rate review

grants. CMS, Ctr. for Consumer Info. & Ins. Over-

sight, State Effective Rate Review Programs,

https://www.cms.gov/CCIIO/Resources/F act-Sheets-

and-F AQs/rate_review_fact_sheet.html (last visited

Sept. 3, 2015). Data that reflects a broad cross-

section of health care consumers, including the sig-

nificant segment of individuals, and their families,

36

covered by employer-sponsored self-funded plans, is

an important success factor of these federally-funded

rate review programs. See id. (explaining that in the

course of rate reviews, states should consider, among

other factors, cost trends and changes in utilization).

B. The States Have A Long History Of

Aggregating Health Data To The Ben-

efit Of Their Citizens.

States have long collected, aggregated, and ana-

lyzed a wide variety of health data in order to carry

out their population health responsibilities. Exam-

ples of such data historically have included disease

registry data; vital statistics and demographic data;

coroners’ reports; clinical laboratory utilization and

test results; reports of disease, epidemic, and indi-

vidual case investigations; data on hospital and post-

acute care admissions, lengths-of-stay, and discharg-

es; health care facility survey data; injury and occu-

pational illness data; school absentee data; and in-

formation on potential disease vectors and contami-

nation sources in the local environment. Univ. of DL

at Chi., School of Public Health, Principles of Epi-

demiology Course, Lesson 5 Public Health Surveil-

lance, avaulable at

http://www.uic.edu/sph/prepare/courses/ph490/resou

rces/epilesson05.pdf.

For over a decade, a growing number of states

have recognized that a key element in improving

overall population health is understanding the cost,

quality, and utilization of health care for their resi-

dents by harnessing the valuable information con-

tained in payers’ claims and eligibility data. The

move toward using claims data to inform quality im-

37

provement and cost containment efforts began in

earnest when Maine established the first statewide

APCD in 2003. By the end of 2008, Kansas, Mary-

land, Massachusetts, and New Hampshire also had

established APCDs. By the end of 2010, Minnesota,

Tennessee, Utah, and Vermont had enacted legisla-

tion to create their own APCDs. Jo Porter et al.,

Robert Wood Johnson Found., The Basics of All-

Payer Claims Databases: A Primer for States (Janu-

ary 2014), available at

https://www.nahdo.org/sites/nahdo.org/files/publicati

ons/The%20Basics%200f%20All-

Payer%20Claims%20Databases. pdf.

At present, more than thirty states have estab-

lished, are implementing, or have expressed strong

interest in comprehensive, multi-payer databases.

Id. These databases may include private health in-

surers’ claims, along with data from Medicaid, chil-

dren’s health insurance and state employee health

benefit programs, prescription drug plans, dental in-

surers, and employer-sponsored self-funded plans

with Medicare claims data now becoming available

through the Qualified Entity program (and CMS’s

other programs that permit sharing Medicare data

with state agencies). !®

While enormously valuable for studying health

care cost, utilization, and other population health

issues, claims data stand in contrast to the detailed

clinical information, including physician notes, as

found in electronic health records. These claims data

aggregation programs further protect individual pri-

16 See supra Section II].A regarding the Qualified Entity pro-

gram.

38

vacy by following strict data protection and data re-

lease governance protocols, including the use of bind-

ing data use agreements. See, e.g., 10 Colo. Code

Reg. 2505-5, § 1.200.5 (requiring HIPAA adherence

and implementation of a multi-stakeholder data re-

lease review committee to advise Colorado’s APCD

regarding data release requests).

C. Private Sector Health Data Initiatives

Demonstrate Feasibility But To Date

Provide An Incomplete View.

A wide variety of health care performance data is

available from a number of sources, including state

and federal agencies, national accrediting bodies, re-

search groups, professional associations, health

plans, employers, vendors that aggregate data from

multiple plans or employers, and organizations such

as the California Public Employees’ Retirement Sys-

tem (“CalPERS”), the Pacific Business Group on

Health, the Leapfrog Group, Health Action Council

Ohio, the New Hampshire Purchasers Group on

Health, and the Maine Health Management Coali-

tion. The Leapfrog Group, for example, collects and

publishes quality and safety measure data, endorsed

by the National Quality Forum, from over 1,500 hos-

pitals that voluntarily participate in its surveys.

Leapfrog Group, LHRP Details for Hospa.,

http://www.leapfroggroup.org/Hospitals/Competitive

Benchmarking/4751817. In many parts of the coun-

try, local health care coalitions are starting to collect

and report physician performance data derived from

networks of local health plans, employers, and phy-

sician organizations. Gordon Mosser et al., Network

for Reg’ Healthcare Improvement, Regional Coali-

39

tions for Healthcare Improvement: Definition, Les-

sons, and Prospects 18, available at

http://www.improvingchroniccare.org/downloads/nrh

i.pdf.

The Health Care Cost Institute (“HCCI”), a non-

profit organization with nationwide research objec-

tives, is undertaking some of the more ambitious

private sector initiatives to gather and leverage

health care claims data. HCCI, About HCCI,

http://www.healthcostinstitute.org/about (last visited

Sept. 3, 2015). Through research and access to large

payer claims data sets, HCCI seeks to offer answers

to critical questions about health care spending and

utilization. Demonstrating the value created by col-

laboration between such private efforts and

statewide APCDs, last year HCCI published a report

analyzing health care trends of employer-sponsored

insured Vermonters younger than 65 and comparing

them with national patterns, using data provided by

Vermont's APCD. HCCI, 2007-2011 Vermont Health

Care Cost and Utilization Report, Executive Sum-

mary 1, avauable at

http:/ /www.healthcostinstitute.org/ files / 2007-

2011VermontHCCUR_DecemberRevision%20 12-1 1-

14.pdf.

Efforts such as these are important contributors

as the country shifts to value-based purchasing, and

should be encouraged.!? However, these national ef-

17 HCCI’s database of claims and eligibility data does include

data attributable to persons covered by employer-sponsored

self-funded plans. However, it is unclear whether this model

may be executed more broadly given that the sources of this

data are primarily large national health insurance carriers that

have funded HCCI and that also act as third-party administra-

40

forts on the part of payers do not include sufficient

population in many individual states to permit state-

specific analyses. The private organizations also can

have limited ability to release financial data, given

disclosure prohibitions in the data submission

agreements that are part of the voluntary nature of

their structure. Moreover, private sector efforts do

not obviate the need for mandatory submissions

from all payers in the marketplace—including, em-

ployers—to meet states’ broader population health

responsibilities and their key role in cost contain-

ment. State-mantated APCDs that aggregate fully-

insured and employer-sponsored self-funded claims,

as well as Medicaid and Medicare data, are essential

to providing the most comprehensive picture possible

so that states such as Vermont may achieve the

public health missions their legislators have as-

signed them, e.g., to assess “the capacity and distri-

bution” of health care resources in the state, inform

health care policy, evaluate the effect of intervention

programs on improving patient outcomes, compare

“costs between various treatment settings and ap-

proaches,” provide information to consumers and

purchasers, and improve “the quality and affordabil-

ity of patient health care and health care coverage.”

Vt. Stat. Ann. tit. 18, § 9410(a)(1) (Pet. App. 92).

CONCLUSION

For these reasons, the Second Circuit decision

should be reversed.

tors for such self-funded plans. See financial statements pre-

sented at http:/Awww.healthcostinstitute.org/about.

41

Respectfully submitted,

Stephen P. Nash*

Melodi M. Gates

Kristine Blackwood

Bryna Shmerling Hummel

SQUIRE PATTON BOGGS

(US) LLP

1801 California Street,

Suite 4900

Denver, Colorado 80202

303-830-1776

stephen. .nash@squirepb.com

Counsel for Amici Curiae

September 4, 2015 *Counsel of Record