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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2014

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0342%3A20. Public record. Not legal advice.