Appendix — NYSA-ILA Welfare Fund v. Dunston

Supreme Court brief1993

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Supreme Court of the United States

OCTOBER TERM, 1993

NYSA-ILA WELFARE FUND, by its Trustees, JOHN BOWERS,

ALBERT CERNADAS, FRANK LONARDO, THOMAS POPOLA,

JAMES CAPO, JOSEPH N. BARBERA, BART DiMATTINA,

and RICHARD H. O’NEILL,

Petitioner,

v.

FRANCIS J. DUNSTON, in her capacity as New Jersey Commissioner of Health;

NEW JERSEY STATE DEPARTMENT OF HEALTH;

NEW JERSEY HOSPITAL RATE SETTING COMMISSION;

AND COLUMBUS HOSPITAL, EAST ORANGE GENERAL HOSPITAL,

ST. JAMES HOSPITAL, and UNIVERSITY HOSPITAL, individually and as

Class Representatives of Hospitals in the State of New Jersey;

and NEW JERSEY HOSPITAL ASSOCIATION, as Class Representative

of Hospitals in the State of New Jersey,

Respondents.

APPENDIX TO PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Thomas W. Gleason C. Peter Lambos

Ernest L. Mathews, Jr.* Donato Caruso*

Kevin Marrinan LAMBOS & GIARDINO

GLEASON & MATHEWS 29 Broadway, 9th Floor

26 Broadway, 17th Floor New York, NY 10006

New York, NY 10004 (212) 943-2470

(212) 425-3240

Co-Counsel to Petitioners

(* Counsel of Record)

BEST AVAILABLE COPY

TABLE OF CONTENTS

Page

Opinion of the United States Court of Appeals for the Third Circuit,

SE PO WE sicsncecedoniacsicnenaeetel ee ee ee la

Judgment of the United States Court of Appeals for the Third Circuit,

SO SNE OR, TI sricinsicinssssivinniesnccuiciaticrmieiens tila eee 45a

Opinion of the United States Court of Appeals for the Third Circuit,

Sur Petition for Rehearing, Dated June et ota OMEN AED 62a

Opinion and Order of the United States District Court for the District

of New Jersey, Dated May 27, 1992 ......ccccsssssssssssssssssssscssessseecessececcscscc. 64a

la

Filed May 14, 1993

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 92-5317/5319/5320/

534 1/5343/5345/5352/5354/5355

UNITED WIRE, METAL AND MACHINE HEALTH AND

WELFARE FUND; JACK STOLL; ESTHER BORJA; JAVIER

RESTREPO; UNITED FOOD AND COMMERCIAL WORKERS

INTERNATIONAL UNION LOCAL 464A, AFL-CIO GROUP

REIMBURSEMENT WELFARE PLAN; FRANK LACATENA;

DOLORES LACATENA; NEW JERSEY CARPENTERS

WELFARE FUND; LOCAL #807 LABOR-MANAGEMENT

HEALTH FUND; TRUSTEES OF THE LOCAL #807 LABOR-

MANAGEMENT HEALTH FUND; PROSPER ALEXANDER;

MARIE ALEXANDER; DISTRICT COUNCIL OF

IRONWORKERS OF NORTHERN NEW JERSEY WELFARE

FUND; ARCHIE G. FERGUSON; RONALD W. JENSEN;

JOHN J. IRVINE; WALTER PHILLIPS; MICHAEL J.

MCDERMOTT; SAMUEL PACICH; ALBERT J. IRWIN;

NICHOLAS J. ANDRETTA, SR.; GARY UGARO; WALTER F.

STEINMETZ; JOHN D. MULVANY; MICHAEL W.

FEATHERSON; FRANCIS E. ARNY; JOHN J. CLARK, SR.;

RONALD W. WILLIAMS; DANIEL J. PEREZ: KEITH E.

ZDEP; EDWARD WEIDLER; LOUIS ROCCO; RAYMOND J.

RODGERS; FRANCIS J. AKESSON; DONALD J. BANTA, SR.;

CHARLES W. BIRD; DAVID F. BROWN; CLIFFORD

CROOKS; ROBERT T. CUSICK; JAMES P. FITZGERALD;

JOSEPH A. FUSARO; CHARLES GAMBA; RICHARD

GOUGEON; JOHN KEATING; GERARD MCCLOUD;

ROBERT MCGEE; ALEXANDER MCLELLAN; JOHN

MURPHY; LAURENCE O’BRIEN; PETER 0’ CONNER; RAUL

RODRIGUEZ; ROBERT SCHWEITZER; ROBERT SICKLES;

ANDREW L. SMITH; RICHARD SPARKS; GEORGE SUDAK;

EDWARD TEDESCO; JAMES TOAL; ENOCH P. MCMAHON;

LOCAL UNION 400; IBEW WELFARE FUND;

2a

BRIAN HRUSKA; WILLIAM MARSH; CHARLES WORK;

HAROLD RUTLEDGE; RALPH ALLEN; THOMAS VADAS;

VINCENT WORTH; TIMOTHY HILL; RONALD RAMSEY;

JOHN IRELAND; JAMES MARTIN; MICHAEL ALMASI;

BEVERLY A. RUBY; PETER NAMOTKA; DANIEL

KENNEDY; GEORGE COLE; WALTER DAVIES; ROBERT

HERMANN; FRANK HERMANN; CHARLES KELLER;

DENNIS JOHNSON; CONNIE J. KOEHLER; FRANK O’DAY;

VINCENT LA STELLA; DONALD MCNEIL; JEAN-LOUIS

POULIOT; NICHOLAS AEMISEGO; ROBERT STAHNKE;

PHILIP CERZA; GARY GIORGIO; EDWARD OSOWSKI;

GLENN HALVORSEN; WILLIAM STADELMAN; DANIEL

JULIO, JR.; FRANCIS ALEXANDER; LEONARD DAHL;

MICHAEL DEVINE; JOSEPH GEORGE; RALPH JENSEN;

DONALD LA BRUTTO; NORMAN GRAMLICH; JUAN

ROMERO; JOSEPH PIWOSKI; HARRY PEASE, JR.; EUGENE

O’ROURKE; PAUL NIEDZINSKI; BERNARD WALL;

STEPHEN KOJAC; CHARLES KRUPKA; WILLIAM

MCCORMACK; MINOR KENNARD; STEPHEN J. SANGLE;

DONALD SCHIRALDO; JOHN GACINA, III; BRIAN

MCCARTHY; CHARLES MCNALLY; ROBERT CZAJOWSKI;

BRIAN WOODALL; JEFFREY STAHNKE; JOHN RYAN;

RALPH ROSAMILIA, SR.; DANIEL MUGAN; EDWARD

MIRONSKI; MICHAEL MIDDINGS; ANDREW MAHASKY;

WALTER JELINSKY; ALBERT GAECHTER; LOUIS DI

MASCIO; ELLIOTT ROSEMAN; TRUSTEES OF THE

OPERATING ENGINEERS LOCAL 825 WELFARE FUND;

RICHARD HORNECKER; TEAMSTERS LOCAL 11 BENEFIT

PLAN; TRUSTEES OF THE TEAMSTERS LOCAL 11

BENEFIT PLAN; KATLUSKA BAIDAL; WILLIAM BARTEL;

GUNTER BLOHM; ANGELO BUINNO; BETTY J. CAIRNS;

FRANK CLOSE; JOSE CRUZ; SANTOS GARCIA; KAREN

GENSURE; DOROTHY LARSON; RICHARD LITCHFIELD;

SANDRA MARINO; JOHN MATUSZKIEWICZ; GEORGE

MCCLAUGHLIN; OLGA MONTES; FERNANDO PEREZ;

SANTO RAMOS; MARTHA SARA; ROXEEN SCALA;

EDMUND SCOTT; CHARLIE TAYLOR; MELISSA TURI,

SANGPO TSULDIN; COSMO VISENTINI; NYSA-ILA

WELFARE FUND; JOHN BOWERS; ALBERT CERNADAS;

FRANK LONARDO; THOMAS POPOLA; JAMES CAPO;

JOSEPH N. BARBERA; BART DIMATTINA; RICHARD H.

ee ae |

3a

O’NEILL; LABORERS INTERNATIONAL UNION OF NORTH

AMERICA LOCAL 415 HEALTH AND WELFARE FUND;

SHEET METAL WORKERS LOCAL UNION NO. 25

WELFARE FUND; JEFFREY STAJEK; JAMES LUCIANO;

JOHN A. FREUDENREICH, SR.; THOMAS SMIECH; JOSEPH

MCCALLION; DANIEL SMITH, JR.; JAMES MCKAY; MARK

COX; TRUSTEES OF THE TEAMSTERS LOCAL 641

WELFARE FUND; CARLOS ROCHA; GEORGE KOESTER;

CARMELA FERENS; KHOONRAJIE RAGHUBANS; PHILLIP

SAVITTIERI; EAR PATTERSON; ROBERT REEDER; LOCAL

1245, LOCAL 1245 HEALTH FUND; ANTHONY RIZZO:

JOSEPH ABBATE; JOSEPH MASSOUD; RALPH

MASTRANGELO; TRUSTEES OF THE WELFARE TRUST

FUND, LOCAL UNION NO. 475; WILLIE A. BARNES;

HERMAN GEIGER; VINSTON LEE KING; KEVIN E. KLINE;

ROBERT L. ROSA; WILLIAM BRENNAN; JAMES MURPHY,

JR.; PATRICIA MCELLIGOTT; KEVIN MCCORMICK:

PATRICK RYAN, JR.; ANTHONY E. SMITH; ROBERT

LAVERATT; JOHN S. WITTEK: JOHN MCQUILKEN; JOHN

MONTESANO; ROY E. FRANK; JOHN O’NEILL, JR.; FRANK

ROBINSON; DALE SCHAEFER; JOHN J. SERRA; DONALD

SHERIDAN; WENCESLAO SOTO; MICHAEL J. RUSSO;

JOSEPH P. MURPHY, JR.; CALVIN R. SUTTON, III;

RONALD J. ZAKARZEWSKI; FRANK WHITNEY, SR.; JACK

NACHTIGALL; LAWRENCE PARKIN; EDISON RODRIQUEZ;

WILLIAM MORAN; VINCENT DOFFONT; GEORGE STOUT;

BRIAN LUBECK; AMERICO GUGLIELMO; DAVID VADAS;

CHRISTOPHER ANDREWSKI; DAVID JENKINS; ARTHUR

ACKERMAN; KENNETH FINTON; RAMON LORENZO;

WESLEY SANDERSON; CHARLES NEWMAN, III;

LEONARD IAROSSI; GEORGE ROSSI; WILLIAM

SKIECZIUS; JOHN HANCOCK; EDWARD THORNE; JOSEPH

TAGLIADIA; MICHAEL MACHANSKA; STEVE PARLACASK

Vv.

MORRISTOWN MEMORIAL HOSPITAL; FRANCES J.

DUNSTON; NEW JERSEY COMMISSIONER OF HEALTH:

NEW JERSEY STATE DEPARTMENT OF HEALTH; NEW

JERSEY HOSPITAL RATE SETTING COMMISSION; NEW

JERSEY COMMISSIONER OF HEALTH; FRANCES

DUNSTON; MEMORIAL HOSPITAL OF BURLINGTON

COUNTY; THE MEDICAL CENTER OF OCEAN COUNTY;

da

KIMBALL MEDICAL CENTER; MERCER MEDICAL

CENTER; OUR LADY OF LOURDES HOSPITAL;

PRINCETON MEDICAL CENTER; HOSPITAL OF SALEM

COUNTY; NEWCOMB MEDICAL CENTER; RIVERVIEW

MEDICAL CENTER; COMMUNITY MEDICAL CENTER;

SHORE MEMORIAL HOSPITAL; BURDETTE TOMLIN

MEMORIAL HOSPITAL; CHRIST HOSPITAL; NEWARK

BETH ISRAEL MEDICAL CENTER; ST. JOSEPH’S

HOSPITAL; WAYNE GENERAL HOSPITAL; SOUTH JERSEY

HOSPITAL SYSTEM; COOPER HOSPITAL; WEST JERSEY

HEALTH SYSTEMS; ATLANTIC CITY MEDICAL CENTER;

UNION MEMORIAL HOSPITAL; ELIZABETH GENERAL

HOSPITAL; ENGLEWOOD HOSPITAL; ROBERT WOOD

JOHNSON UNIVERSITY HOSPITAL; BARNERT MEMORIAL

HOSPITAL; PASSAIC GENERAL HOSPITAL; RAHWAY

HOSPITAL; VALLEY HOSPITAL; HOLY NAME HOSPITAL;

ST. PETER’S MEDICAL CENTER; SOMERSET MEDICAL

CENTER; OVERLOOK HOSPITAL; ST. ELIZABETH

HOSPITAL; DOVER GENERAL MEDICAL CENTER;

HUNTERDON MEDICAL CENTER; CHILTON MEMORIAL

HOSPITAL; KESSLER MEMORIAL HOSPITAL; FREEHOLD

AREA HOSP.; KENNEDY MEMORIAL HOSPITAL;

UNIVERSITY HOSPITAL; UNDERWOOD MEMORIAL

HOSPITAL; JERSEY CITY MEDICAL CENTER; ST.

JOSEPH’S HOSPITAL; ST. BARNABAS MEDICAL CENTER;

RARITAN BAY MEDICAL CENTER; CLARA MAASS

MEDICAL CENTER; ST. CLARES/RIVERSIDE MEDICAL

CENTER; JOHN F. KENNEDY MEDICAL CENTER;

HACKETTSTOWN COMMUNITY HOSPITAL; ZURBRUGG

MEMORIAL HOSPITAL; JERSEY SHORE MEDICAL

CENTER; MONMOUTH MEDICAL CTR; NEWTON

MEMORIAL HOSPITAL; UNIVERSITY OF MEDICINE &

DENTISTRY OF NEW JERSEY; DEBORAH HEART AND

LUNG CENTER; HOSPITAL CENTER AT ORANGE; DOVER

GENERAL HOSPITAL; WEST JERSEY HEALTH SYSTEM;

RARITAN BAY MEDICAL CENTER; HACKENSACK

MEDICAL CENTER; SOUTH AMBOY MEMORIAL

HOSPITAL; THE MOUNTAINSIDE HOSPITAL; ST. FRANCIS

HOSPITAL; BAYONNE HOSPITAL; MUHLENBERG

HOSPITAL; CENTRASTATE (FAH) HOSPITAL, ST. JAMES

HOSPITAL; KENNEDY MEMORIAL HOSPITAL AT SADDLE

5a

BROOK; ADMINISTRATOR OF THE NEW JERSEY HEALTH

CARE TRUST FUND; NEW JERSEY DEPARTMENT OF

HUMAN SERVICES (DIVISION) OF MEDICAL ASSISTANCE

AND HEALTH SERVICES; ELIZABETH GENERAL

MEDICAL CENTER; DOVER GENERAL MEDICAL CENTER;

IRVINGTON GENERAL HOSPITAL; UNION HOSPITAL;

WARREN HOSPITAL, COLUMBUS HOSPITAL; EAST

ORANGE GENERAL HOSPITAL, FRANCIS DUBEAU;

LILLIAN DUBEAU; BAYSHORE COMMUNITY HOSPITAL;

NEW JERSEY HOSPITAL ASSOCIATION; BERGEN PINES

COUNTY HOSPITAL; COMMUNITY MEMORIAL

HOSPITAL; GREENVILLE HOSPITAL; MONTCLAIR

COMMUNITY (HOSPITAL) PALISADES GENERAL

HOSPITAL; PASSAIC BETH ISRAEL HOSPITAL; RARITAN

BAY MEDICAL CENTER/PERTH AMBOY DIVISION;

RIVERVIEW MEDICAL CENTER; SOUTHERN OCEAN

COUNTY HOSPITAL; ST. MARY’S HOSPITAL; THE

GENERAL HOSPITAL CENTER AT PASSAIC; WALLKILL

VALLEY HOSPITAL AND HEALTH CENTERS; ST. MARY’S

HOSPITAL (PASSAIC); UNITED HOSPITAL; PASCACK

VALLEY HOSPITAL; WEST HUDSON HOSPITAL; JOHNSON

UNIVERSITY HOSPITAL; ADMINISTRATOR OF THE NEW

JERSEY HEALTH CARE TRUST FUND; NEW JERSEY

DEPARTMENT OF HUMAN SERVICES DIVISION OF

MEDICAL ASSISTANCE AND HEALTH SERVICES; NEW

JERSEY HOSPITAL; NEW JERSEY HOSPITAL

ASSOCIATION,

Intervenor-Defendants

(Newark New Jersey District Consolidated Lead Civil

No. 90-02639)

UNITED WIRE, METAL AND MACHINE HEALTH AND

WELFARE FUND; ESTHER BORJA

V.

ST. MARY’S HOSPITAL HOSPITAL; NEW JERSEY

COMMISSIONER OF HEALTH; NEW JERSEY STATE

DEPARTMENT OF HEALTH; NEW JERSEY HOSPITAL RATE

SETTING COMMISSION; FRANCES J. DUNSTON;

6a

(Newark New Jersey District Civil No. 90-03640)

UNITED WIRE, METAL AND MACHINE HEALTH AND

WELFARE FUND; JAVIER RESTREPO

Vv.

ST. JOSEPH’S HOSPITAL AND MEDICAL CENTER;

FRANCES J. DUNSTON, in her capacity as New Jersey

Commissioner of Health; NEW JERSEY STATE DEPARTMENT

OF HEALTH; NEW JERSEY HOSPITAL RATE SETTING

COMMISSION

(Newark New Jersey District Civil No. 91-00073)

UNITED FOOD AND COMMERCIAL WORKERS

INTERNATIONAL UNION, LOCAL 464A, AFL-CIO GROUP

REIMBURSEMENT WELFARE PLAN; FRANK LACATENA;

DOLORES LACATENA

V.

WAYNE GENERAL HOSPITAL; FRANCES J. DUNSTON;

NEW JERSEY COMMISSIONER OF HEALTH; NEW JERSEY

STATE DEPARTMENT OF HEALTH; NEW JERSEY

HOSPITAL RATE SETTING COMMISSION

(Newark New Jersey District Civil No. 91-00336)

DISTRICT COUNCIL OF IRONWORKERS OF NORTHERN

NEW JERSEY WELFARE FUND; ARCHIE G. FERGUSON;

RONALD W. JENSEN; JOHN J. IRVINE, WALTER PHILLIPS;

MICHAEL J. MCDERMOTT; SAMUEL PACICH; ALBERT J.

IRWIN, NICHOLAS J. ANDRETTA, SR.; GARY UGARO;

WALTER F. STEINMETZ; JOHN D. MULVANEY; MICHAEL

W. FEATHERSON; FRANCIS E. ARNY; JOHN J. CLARK,

SR.; RONALD W. WILLIAMS; DANIEL J. PEREZ; KEITH E.

ZDEP; EDWARD WEIDLER; LOUIS ROCCO; RAYMOND J.

RODGERS; FRANCIS J. AKESSON; DONALD J. BANTA, SR;

CHARLES W. BIRD; DAVID BROWN; CLIFFORD CROOKS;

ROBERT T. CUSICK; JAMES P. FITZGERALD; JOSEPH A.

FUSARO; CHARLES GAMBA; RICHARD GOUGEON; JOHN

KEATING; GERARD MCCLOUD; ROBERT MCGEE;

ALEXANDER MCLELLAN; JOHN MURPHY; LAURENCE

O’BRIEN; PETER O’CONNER; RAUL RODRIGUEZ; ROBERT

SCHWEITZER; ROBERT SICKLES; ANDREW L. SMITH;

a

7a

RICHARD SPARKS; GEORGE SUDAK; EDWARD TEDESCO;

JAMES TOAL; ENOCH P. MCMAHAN

v.

FRANCES J. DUNSTON, in her capacity as New Jersey

Commissioner of Health; NEW JERSEY STATE DEPARTMENT

OF HEALTH; NEW JERSEY HOSPITAL RATE SETTING

COMMISSION; DEBORAH HEART AND LUNG CENTER;

HUNTERDON MEDICAL CENTER, ST. FRANCIS

HOSPITAL; HOSPITAL CENTER AT ORANGE; ST. PETERS

MEDICAL CENTER; ST. CLARES/RIVERSIDE MEDICAL

CENTER; JOHN F. KENNEDY MEDICAL CENTER; DOVER

GENERAL HOSPITAL; ST. BARNABAS MEDICAL CENTER;

VALLEY HOSPITAL; OVERLOOK HOSPITAL; RAHWAY

HOSPITAL; NEWTON MEMORIAL HOSPITAL; WEST

JERSEY HEALTH SYSTEM; RARITAN BAY MEDICAL

CENTER; HACKENSACK MEDICAL CENTER; CLARA

MAASS MEDICAL CENTER; HOLY NAME HOSPITAL;

NEWARK BETH ISRAEL MEDICAL CENTER; BAYONNE

HOSPITAL; CHILTON MEMORIAL HOSPITAL; ST.

JOSEPH’S HOSPITAL; MUHLENBERG HOSPITAL;

COMMUNITY MED CENTER; CHRIST HOSPITAL; SOUTH

AMBOY MEMORIAL HOSPITAL; CENTRASTATE (FAH)

HOSPITAL; WAYNE GENERAL HOSPITAL; PRINCETON

MEDICAL CENTER; ST. JAMES HOSPITAL,a/k/a

CATHEDRAL HEALTH SERVICES, INC.; MOUNTAINSIDE

HOSPITAL; PASSAIC GENERAL HOSPITAL; NEW JERSEY

HOSPITAL ASSOCIATION

Intervenor/Defendant

(Newark New Jersey District Civil No. 91-02190)

NEW JERSEY CARPENTERS WELFARE FUND

.

FRANCES J. DUNSTON, in her capacity as New Jersey

Commissioner of Health; NEW JERSEY STATE DEPARTMENT

OF HEALTH; NEW JERSEY HOSPITAL RATE SETTING

COMMISSION; SOUTH JERSEY HOSPITAL SYSTEM;

COOPER HOSPITAL; WEST JERSEY HEALTH SYSTEMS;

ATLANTIC CITY MEDICAL CENTER; MEMORIAL

HOSPITAL OF BURLINGTON COUNTY; THE MEDICAL

CENTER OF OCEAN COUNTY; KIMBALL MEDICAL

CENTER; MERCER MEDICAL CENTER; OUR LADY OF

8a

LOURDES; PRINCETON MEDICAL CENTER; HOSPITAL OF

SALEM COUNTY; NEWCOMB MEDICAL CENTER;

RIVERVIEW MEDICAL CENTER; COMMUNITY MEDICAL

CENTER; SHORE MEMORIAL HOSPITAL; BURDETTE

TOMLIN MEMORIAL; CHRIST HOSPITAL; MORRISTOWN

MEMORIAL HOSPITAL; NEWARK BETH ISRAEL MEDICAL

_ CENTER; WAYNE GENERAL HOSPITAL; UNION

MEMORIAL HOSPITAL; ELIZABETH GENERAL HOSPITAL;

ENGLEWOOD HOSPITAL, ROBERT WOOD JOHNSON

UNIVERSITY HOSPITAL; BARNERT MEMORIAL

HOSPITAL; PASSAIC GENERAL HOSPITAL; RAHWAY

HOSPITAL; THE VALLEY HOSPITAL; HOLY NAME

HOSPITAL; ST. PETER’S MEDICAL CENTER; SOMERSET

MEDICAL CENTER; OVERLOOK HOSPITAL; ST.

ELIZABETH HOSPITAL; DOVER GENERAL

MEDICAL CENTER; HUNTERDON MEDICAL CENTER;

CHILTON MEMORIAL HOSPITAL; KESSLER MEMORIAL

HOSPITAL; FREEHOLD AREA HOSPITAL; KENNEDY

MEMORIAL HOSPITAL; UNIVERSITY HOSPITAL;

UNDERWOOD MEMORIAL HOSPITAL; JERSEY CITY

MEDICAL CENTER; ST. JOSEPH’S HOSPITAL; ST.

BARNABAS MEDICAL CENTER; RARITAN BAY MEDICAL

CENTER; CLARA MAASS MEDICAL CENTER; ST.

CLARE’S/RIVERSIDE MEDICAL CENTER; JOHN F.

KENNEDY MEDICAL CENTER; HACKETTSTOWN

COMMUNITY HOSPITAL; ZURBRUGG MEMORIAL

HOSPITAL; JERSEY SHORE MEDICAL CENTER;

MONMOUTH MEDICAL CENTER; NEWTON MEMORIAL

HOSPITAL; NEW JERSEY HOSPITAL, NEW JERSEY

HOSPITAL ASSOCIATION

Intervenor/Defendant

(Newark New Jersey District Civil No. 91-03280)

LOCAL #807 LABOR-MANAGEMENT HEALTH FUND;

TRUSTEES OF THE LOCAL #807 LABOR-MANAGEMENT

HEALTH FUND; PROSPER ALEXANDER; MARIE

ALEXANDER

¥.

UNIVERSITY HOSPITAL; UNIVERSITY OF MEDICINE &

DENTISTRY OF NEW JERSEY; FRANCES J. DUNSTON, in

9a

her capacity as New Jersey Commissioner of Health; NEW

JERSEY STATE DEPARTMENT OF HEALTH; NEW JERSEY

HOSPITAL RATE SETTING COMMISSION

(Newark New Jersey District Civil No. 91-03286)

LOCAL UNION 400, IBEW WELFARE FUND; BRIAN

HRUSKA; WILLIAM MARSH; CHARLES WORK; HAROLD

RUTLEDGE; RALPH ALLEN; THOMAS VADAS; VINCENT

WORTH; TIMOTHY HILL, RONALD RAMSEY; JOHN

IRELAND; JAMES MARTIN

v.

FRANCES J. DUNSTON, in her capacity as New Jersey

Commissioner of Health; NEW JERSEY STATE DEPARTMENT

OF HEALTH; NEW JERSEY HOSPITAL RATE SETTING

COMMISSION; THE MEDICAL CENTER OF OCEAN

COUNTY; RIVERVIEW MEDICAL CENTER; COMMUNITY

MEDICAL CENTER; JERSEY SHORE MEDICAL CENTER;

KIMBALL MEDICAL CENTER; MONMOUTH MEDICAL

CENTER NEW JERSEY HOSPITAL ASSOCIATION

Intervenor/Defendant

(Newark New Jersey District Civil No. 91-03897)

OVERLOOK HOSPITAL

V.

FRANCES DUBEAU; LILLIAN DUBEAU

(Newark New Jersey District Civil No. 91-03910)

LABORERS INTERNATIONAL UNION OF NORTH

AMERICA LOCAL 415 HEALTH AND WELFARE FUND

Vv.

FRANCES J. DUNSTON. in her capacity as New Jersey

Commissioner of Health; NEW JERSEY STATE DEPARTMENT

OF HEALTH; NEW JERSEY HOSPITAL RATE SETTING

COMMISSION

(Newark New Jersey District Civil No. 91-04078)

NYSA-ILA WELFARE FUND, by its Trustees; JOHN BOWERS,

Trustee; ALBERT CERNADAS, Trustee; FRANK LONARDO,

Trustee; THOMAS POPOLA, Trustee; JAMES CAPO, Trustee;

10a

JOSEPH N. BARBERA, Trustee; BART DIMATTINA, Trustee;

RICHARD H. O’NEILL, Trustee

v.

FRANCES J. DUNSTON, in her capacity as New Jersey

Commissioner of Health; NEW JERSEY STATE DEPARTMENT

OF HEALTH; NEW JERSEY HOSPITAL RATE SETTING

COMMISSION; COLUMBUS HOSPITAL; EAST ORANGE

GENERAL HOSPITAL ST. JAMES HOSPITAL; UNIVERSITY

HOSPITAL, Individually and as Class Representatives of

Hospitals in the State of New Jersey; NEW JERSEY HOSPITAL

ASSOCIATION,

as Class representative of Hospital in the State of New Jersey

(Newark New Jersey District Civil No. 91-04259)

SHEET METAL WORKERS LOCAL UNION NO. 25

WELFARE FUND; JEFFREY STAJEK; JAMES LUCIANO;

JOHN A. FREUDENREICH, SR.; THOMAS SMIECH; JOSEPH

MCCALLION; DANIEL SMITH, JR.; JAMES MCKAY;

MARK COX

v.

FRANCES J. DUNSTON, in her capacity of New Jersey

Commissioner of Health; NEW JERSEY STATE DEPARTMENT

OF HEALTH; NEW JERSEY HOSPITAL RATE SETTING

COMMISSION; ADMINISTRATOR OF THE NEW JERSEY

HEALTH CARE TRUST FUND; NEW JERSEY DEPARTMENT

OF HUMAN SERVICES (DIVISION) OF MEDICAL

ASSISTANCE AND HEALTH SERVICES; NEW JERSEY

HOSPITAL ASSOCIATION; ST. BARNABAS MEDICAL

CENTER; HOLY NAME HOSPITAL; HACKENSACK

MEDICAL CENTER; WEST HUDSON HOSPITAL;

OVERLOOK HOSPITAL; JOHN F. KENNEDY MEDICAL

CENTER; HUNTERDON MEDICAL CENTER; MORRISTOWN

MEMORIAL HOSPITAL; IRVINGTON GENERAL HOSPITAL;

CLARA MAASS MEDICAL CENTER

(Newark New Jersey District Civil No. 91-04700)

TRUSTEES OF THE OPERATING ENGINEERS LOCAL 825

WELFARE FUND; RICHARD HORNECKER

v.

FRANCES J. DUNSTON, in her capacity as New Jersey

Commissioner of Health; NEW JERSEY STATE DEPARTMENT

lla

OF HEALTH; NEW JERSEY HOSPITAL RATE SETTING

COMMISSION; ADMINISTRATOR OF THE NEW JERSEY

HEALTH CARE TRUST FUND, NEW JERSEY DEPARTMENT

OF HUMAN SERVICES, DIVISION OF MEDICAL

ASSISTANCE AND HEALTH SERVICES

(Newark New Jersey District Civil No. 91-05362)

TEAMSTERS LOCAL 11 BENEFIT FUND; TRUSTEES OF

THE TEAMSTERS LOCAL 11 BENEFIT PLAN; KATLUSKA

BAIDAL; WILLIAM BARTELL; GUNTER BLOHM; ANGELO

BUINNO; BETTY J. CAIRNS; FRANK CLOSE; JOSE CRUZ;

SANTOS GARCIA; KAREN GENSURE; DOROTHY LARSON;

RICHARD LITCHFIELD; SANDRA MARINO; JOHN

MATUSZKIEWICZ; GEORGE MCCLAUGHLIN; OLGA

MONTES; FERNANDO PEREZ; SANTO RAMOS: MARTHA

SARA; ROXEEN SCALA; EDMUND SCOTT; CHARLIE

TAYLOR; MELISSA TURI; SANGPO TSULDIN: COSMO

VISENTINI

Vv.

BAYSHORE COMMUNITY HOSPITAL; CHILTON

MEMORIAL HOSPITAL; CLARA MAASS MEDICAL

CENTER; DOVER GENERAL HOSPITAL; ELIZABETH

GENERAL MEDICAL CENTER; ENGLEWOOD HOSPITAL;

HOLY NAME HOSPITAL; IRVINGTON GENERAL

HOSPITAL; JERSEY CITY MEDICAL CENTER; PASSAIC

GENERAL HOSPITAL; ST. FRANCIS HOSPITAL; ST.

PETER’S MEDICAL CENTER; SOMERSET MEDICAL

CENTER; UNION HOSPITAL; UNITED HOSPITAL;

UNIVERSITY HOSPITAL; VALLEY HOSPITAL; WARREN

HOSPITAL; FRANCES J. DUNSTON, in her Capacity as New

Jersey Commissioner of Health; NEW JERSEY STATE

DEPARTMENT OF HEALTH; NEW JERSEY HOSPITAL RATE

SETTING COMMISSION

(Newark New Jersey District Civil No. 92-00085)

TRUSTEES OF THE WELFARE TRUST FUND, LOCAL

UNION NO. 475; WILLIE A. BARNES; HERMAN GEIGER:

VINSTON LEE KING; KEVIN E. KLINE; ROBERT L. ROSA;

WILLIAM BRENNAN; JAMES MURPHY, JR.; PATRICIA

MCELLIGOTT; KEVIN MCCORMICK; PATRICK RYAN, JR.;

12a

ANTHONY E. SMITH; ROBERT LAVERATT; JOHN S.

WITTEK; JOHN MCQUILKEN; JOHN MONTESANO; ROY E.

FRANK; JOHN O’NEILL, JR.; FRANK ROBINSON; DALE

SCHAEFER; JOHN J. SERRA; DONALD SHERIDAN;

WENCESLAO SOTO; MICHAEL J. RUSSO; JOSEPH P.

MURPHY, JR.; CALVIN R. SUTTON, III; RONALD J.

ZAKARZEWSKI; FRANK WHITNEY, SR.; JACK

NACHTIGALL; LAWRENCE PARKIN; EDISON RODRIGUEZ;

WILLIAM MORAN; VINCENT DOFFONT

v.

FRANCES J. DUNSTON, in her capacity as New Jersey

Commissioner of Health; NEW JERSEY STATE DEPARTMENT

OF HEALTH; NEW JERSEY HOSPITAL RATE SETTING

COMMISSION; ADMINISTRATOR OF THE NEW JERSEY

HEALTH CARE TRUST FUND; NEW JERSEY DEPARTMENT

OF HUMAN SERVICES, DIVISION OF MEDICAL

ASSISTANCE AND HEALTH SERVICES; WEST HUDSON

HOSPITAL; UNIVERSITY OF MEDICINE & DENTISTRY;

OVERLOOK HOSPITAL; MORRISTOWN MEMORIAL

HOSPITAL; UNION HOSPITAL; RIVERVIEW MEDICAL

CENTER; NORTHERN OCEAN HOSPITAL SYSTEM;

COMMUNITY MEDICAL CENTER; HOSPITAL CENTER AT

ORANGE; HUNTERDON MEDICAL CENTER; WARREN

HOSPITAL; CENTRASTATE MEDICAL CENTER;

SOMERSET MEDICAL CENTER; ROBERT WOOD JOHNSON

UNIVERSITY; THE MEDICAL CENTER OF OCEAN

COUNTY; JERSEY SHORE MEDICAL CENTER;

COLUMBUS HOSPITAL; JOHN F. KENNEDY MEDICAL

CENTER; CLARA MAASS MEDICAL CENTER

(Newark New Jersey District Civil No. 92-00426)

TEAMSTERS LOCAL 641 WELFARE FUND; CARLOS

ROCHA; GEORGE KOESTER; CARMELA FERENS;

KHOONRAJIE RAGHUBANS; PHILLIP SAVITTIERI; EARL

PATTERSON; ROBERT REEDER

v.

FRANCES J. DUNSTON, in her capacity as New Jersey

Commissioner of Health; NEW JERSEY STATE DEPARTMENT

OF HEALTH; NEW JERSEY HOSPITAL RATE SETTING

COMMISSION; MEDICAL CENTER OF OCEAN COUNTY;

ST. BARNABAS MEDICAL CENTER; CLARA MAASS

13a

MEDICAL CENTER; ST. ELIZABETH HOSPITAL; PASSAIC

GENERAL HOSPITAL

(Newark New Jersey District Civil No. 92-00526)

LOCAL 1245 HEALTH FUND; LOCAL 1245 BAKERY AND

SPECIALTY HEALTH FUND; JAMES ARBOLINO;

ANTHONY ROCCO; HAROLD POLSKY; NEVIO MANCIINI:

WILLIE SCONIERS; IRENE HICKEY; KATHLEEN

RODRIGUEZ; WILLIAM CLACK WORTHY; EDWARD

NELSON; PATRICIA CONRAD; RONALD COZZO; HOLLY

ANN CULBERT; JOACHIM SCHAFFRANIETZ; HUBERT

CHASE; ROBERT BAUMAN; RUSSELL SCHWARTZ: JEAN

JACQUES KERVAN; ARTHUR BEYER

¥.

FRANCES J. DUNSTON, in her capacity as New Jersey

Commissioner of Health; NEW JERSEY STATE DEPARTMENT

OF HEALTH; NEW JERSEY HOSPITAL RATE SETTING

COMMISSION; DOVER GENERAL HOSPITAL; THE

MEDICAL CENTER OF OCEAN COUNTY; SAINT

BARNABAS MEDICAL CENTER; UNION HOSPITAL; JOHN

F. KENNEDY MEDICAL CENTER; ENGLEWOOD

HOSPITAL; MORRISTOWN MEMORIAL HOSPITAL;

CENTRASTATE; SAINT PETER’S MEDICAL CENTER;

SAINT MARY’S HOSPITAL; MEADOWLANDS HOSPITAL

AND MEDICAL CENTER; JERSEY SHORE MEDICAL

CENTER; KENNEDY MEMORIAL HOSPITAL; PASSAIC

GENERAL HOSPITAL

(Newark New Jersey District Civil No. 92-00728)

ANTHONY RIZZO; JOSEPH ABBATE; JOSEPH MASSOUD;

RALPH MASTRANGELO, as Trustees of the Local 945, 1.B.T.

Welfare Fund

V.

BARNERT MEMORIAL HOSPITAL CENTER; BAYONNE

HOSPITAL; BAYSHORE COMMUNITY HOSPITAL; BERGEN

PINES COUNTY HOSPITAL; CENTRASTATE MEDICAL

CENTER; CHILTON MEMORIAL HOSPITAL; CHRIST

HOSPITAL; CLARA MAASS MEDICAL CENTER;

COLUMBUS HOSPITAL; COMMUNITY MEMORIAL

HOSPITAL; DOVER GENERAL HOSPITAL & MEDICAL

l4a

CENTER; ELIZABETH GENERAL MEDICAL CENTER;

GREENVILLE HOSPITAL; HACKETTSTOWN COMMUNITY

HOSPITAL, HOLY NAME HOSPITAL; IRVINGTON

GENERAL HOSPITAL; JERSEY SHORE MEDICAL CENTER;

JOHN F. KENNEDY MEDICAL CENTER; KENNEDY

MEMORIAL HOSPITALS AT SADDLE BROOK; KIMBALL

MEDICAL CENTER; MERCER MEDICAL CENTER;

MONTCLAIR COMMUNITY (HOSPITAL); MORRISTOWN

MEMORIAL HOSPITAL; NEWTON MEMORIAL HOSPITAL;

OVERLOOK HOSPITAL; PALISADES GENERAL HOSPITAL,

PASCACK VALLEY HOSPITAL; PASSAIC BETH ISRAEL

HOSPITAL; RAHWAY HOSPITAL; RARITAN BAY MEDICAL

CENTER/PERTH AMBOY DIVISION; RIVERVIEW MEDICAL

CENTER; ROBERT WOOD JOHNSON UNIVERSITY

HOSPITAL; SOUTHERN OCEAN COUNTY HOSPITAL; ST.

MARY’S HOSPITAL (PASSAIC); ST. JOSEPH’S HOSPITAL &

MEDICAL CENTER; ST. FRANCIS MEDICAL CENTER; ST.

ELIZABETH HOSPITAL; ST. PETER’S MEDICAL CENTER;

THE GENERAL HOSPITAL CENTER AT PASSAIC; UNION

HOSPITAL; UNIVERSITY HOSPITAL; UNIVERSITY OF

MEDICINE & DENTISTRY OF NEW JERSEY; VALLEY

HOSPITAL; WALLKILL VALLEY HOSPITAL AND HEALTH

CENTERS; WARREN HOSPITAL; WAYNE GENERAL

HOSPITAL; FRANCES J. DUNSTON, in her capacity as New

Jersey Commissioner of Health; NEW JERSEY STATE

DEPARTMENT OF HEALTH; NEW JERSEY HOSPITAL RATE

SETTING COMMISSION

(Newark New Jersey District Civil No. 92-00849)

NEWCOMB MEDICAL CENTER

v.

JENNIS CARPENTER; ALICE CARPENTER, his wife, jointly,

severally and in the alternative

Defendants/Third Party

Plaintiffs

v.

FRANCES J. DUNSTON; NEW JERSEY STATE

DEPARTMENT OF HEALTH; NEW JERSEY HOSPITAL RATE

SETTING COMMISSION; ADMINISTRATOR OF THE NEW

JERSEY HEALTH CARE TRUST FUND; NEW JERSEY

DEPARTMENT OF HUMAN SERVICES, DIVISION OF

el

15a

MEDICAL ASSISTANCE AND HEALTH SERVICES

Third Party Defendants

(Newark New Jersey District Civil No. 92-01282)

NEWCOMB MEDICAL CENTER

Vv.

SHANA TRIPP; CHARLES TRIPP, jointly, severally and in the

alternative

Defendants/Third Party

Plaintiffs

Vs

NEW JERSEY STATE DEPARTMENT OF HEALTH; NEW

JERSEY HOSPITAL RATE SETTING COMMISSION:

ADMINISTRATOR OF THE NEW JERSEY HEALTH CARE

TRUST FUND; NEW JERSEY DEPARTMENT OF HUMAN

SERVICES, DIVISION OF MEDICAL ASSISTANCE AND

HEALTH SERVICES; FRANCES J. DUNSTON, in her capacity

as New Jersey Commissioner of Health

Third Party Defendants

(Newark New Jerseys District Civil No. 92-01454)

NEWCOMB MEDICAL CENTER

v.

FRED KUEKEN

Defendant/Third Party

Plaintiff

v.

FRANCES J. DUNSTON; NEW JERSEY STATE

DEPARTMENT OF HEALTH; NEW JERSEY HOSPITAL RATE

SETTING COMMISSION; ADMINISTRATOR OF THE NEW

JERSEY HEALTH CARE TRUST FUND; NEW JERSEY

DEPARTMENT OF HUMAN SERVICES, DIVISION OF

MEDICAL ASSISTANCE AND HEALTH SERVICES

Third Party Defendants

(Newark New Jersey District Civil No. 92-01455)

New Jersey Hospital Association; Bayshore Community Hospital;

Monmouth Medical Center; Pascack Valley Hospital; Riverview

Medical Center; Kennedy Memorial Hospitals at Saddle Brook,

Inc.; William B. Kessler Memorial Hospital; St. Francis Hospital;

l6a

South Jersey Hospital System; Helene Fuld Medical Center;

Newton Memorial Hospital; The Medical Center of Ocean

County; Bayonne Hospital; Kennedy Memorial Hospitals-

University Medical Certer; South Amboy Memorial Hospital;

Underwood Memonial Hospital; Muhlenberg Regional Medical

Center; Englewood Hospital; Zurbrugg Memorial Hospital; St.

Mary Hospital; Community Medical Center; Hunterdon Medical

Center; St. Michael’s Medical Center; The Mercer Medical

Center; St. Peter’s Medical Center; Jersey Shore Medical Center;

Irvington General Hospital; John F. Kennedy Hospital; Our Lady

of Lourdes Medical Center; Overlook Hospital; Raritan Bay

Medical Center; St. Elizabeth Hospital; Wayne General Hospital;

Barnert Hospital; Atlantic City Medical Center; Dover General

Hospital & Medical Center; Holy Name Hospital; The Hospital at

Orange; St. Clare’s/Riverside Medical Center; Clara Maas

Medical Center; Deborah Heart & Lung Center; Rahway

Hospital; West Jersey Health System; Hackensack Medical

Center; Newark Beth-Israel Medical Center; St. James Hospital;

St. Joseph’s Hospital & Medical Center; Christ Hospital; Chilton

_ Memorial Hospital; East Orange General Hospital; Columbus

Hospital; Cooper Hospital/University Medical Center; Memorial

Hospital of Burlington County Memorial Health Alliance;

Medical Center at Princeton; St. Joseph’s Hospital; Shore

Memonial Hospital; Robert Wood Johnson University Hospital;

Burdette Tomlin Memorial Hospital; Somerset Medical Center;

Mountainside Hospital; Union Hospital; United Hospitals Medical

Center at Passaic; and Morristown Memorial Hospital,

Appellants

On Appeal From the United States District Court For the

District of New Jersey

(D.C. Civil Action Nos. 90-02639, 90-03640, 91-00073,

91-00336, 91-02190, 91-03280, 91-03286, 91-03897, 91-03910,

91-04078, 91-04259, 91-04700, 91-05362, 92-00085, 92-00426,

92-00526, 92-00728, 92-00849, 92-01282, 92-01454, 92-01455)

Argued September 18, 1992

BEFORE: STAPLETON, SCIRICA, and NYGAARD, Circuit

Judges

(Opinion Filed May 14, 1993)

nena nea

17a

Robert J. Del Tufo

Attorney General of New Jersey

Edward J. Dauber

Executive Asst. Attorney General

Benjamin Clarke (Argued)

Senior Deputy Attorney General

Michael J. Haas

Todd A. Wigder

Deputys Attorney General

R.J. Hughes Justice Complex

CN 112

Trenton, New Jersey 08625

Attorneys for State Appellants

Frank R. Ciesla (Argued)

Elizabeth Dusaniwsky

Girodano, Halleran & Ciesla

125 Half Mile Rd.

P.O. Box 190

Middletown, NJ 07748

Attorneys for Appellant New

Jersey Hospital Association and

the Appellant Hospitals

Harold Kreiger (Argued)

Sanford Browde

Kreiger & Browde

921 Bergen Avenue

P.O. Box 6669

Jersey City, NY

Attorneys for Plaintiffs-

Appellees, Local 464A,

United Food and Commercial

Workers Union Group

Reimbursement Welfare Plan,

Frank Lacatena and

Dolores Lacatena

Albert G. Kroll

25 Pompton Avenue

Suite 309

Verona, NJ

Attorney for New Jersey

18a

Carpenters Welfare Fund and

District Council of Ironworkers

of Northern New Jersey Welfare

Fund

Donato Caruso (Argued)

C. Peter Lambos

Lambos & Giardino

29 Broadway, 9th Floor

New York, NY 10006

Ernest L. Mathews, Jr.

Kevin Marrinan

Law Offices of Thomas W. Gleason

26 Broadway, 17th Fl.

New York, NY 10004

Co-Counsel to Plaintiffs-Appellees-

Cross-Appellants

NYSA-ILA Welfare Fund and Its

Trustees

Ronald E. Wiss (Argued)

Herbert New

1373 Broad Street

Clifton, NJ 07012

Attorneys for Appellee-Cross-

Appellant

Local 807 Labor-Management Health

Fund

David A. Schrader

Wolff & Samson, P.A. e

280 Corporate Center

5 Becker Farm Road

Roseland, NJ 07068

Attorneys for Plaintiff-Appellees

United Wire, Metal & Machine

Health and Welfare Fund and

Operating Engineers

Local 825 Welfare Fund

19a

Thomas V. Jardine

Jardine & Pagano

11 Cleveland Place

Springfield, NJ 07081

Attorney for District

Council of Ironworkers of Northern

New Jersey Welfare Fund, et al.

OPINION OF THE COURT

STAPLETON, Circuit Judge:

Appellees, several self-insured employee benefit plans and a

number of individual participants in those plans (“the plans”),

brought this action seeking an injunction against the application to

them of New Jersey’s then current statutory scheme for setting hos-

pital rates. They also sought restitution of monies paid under pro-

test pursuant to that statutory scheme. Appellees argue both that

the New Jersey statute was preempted by the Employee Retirement

Income Security Act of 1974, 29 U.S.C. § 1002 et seg., as amended

(“ERISA”), and that the statute worked an unconstitutional taking

of property without just compensation. Appellants are numerous

New Jersey hospitals, various agencies and officials of the state of

New Jersey and, as an intervening party, the New Jersey Hospital

Association (“the defendants”).

The district court entered summary judgment in favor of the

plans on their ERISA preemption claim and enjoined the enforce-

ment of the statute as it applied to them. The injunction was stayed,

pending this appeal. The district court also entered summary judg-

ment in favor of the defendants on the plans’ constitutional claims,

and declined to reach the question of restitution. The defendants

appeal, and the plans cross-appeal.

We will reverse the summary judgment on the ERISA preemp-

tion claim and vacate the injunction. We will affirm the summary

judgment on the constitutional claims, and remand the case to the

district court with instructions that judgment be entered for the

defendants.

20a

I.

The statutory and regulatory regime in question is found in the -

New Jersey Health Care Facilities Planning Act of 1971, as

amended by the Health Care Cost Reduction Act of 1978, N.J. Stat.

Ann. 26:2H-1 et seg, (both shal! be collectively referred to as

“Act”) and the attending regulations. N.J. Admin. Code 8:31B

et seq.

In 1978, New Jersey enacted a revised rate setting system. Chap-

ter 83, the dual purpose of which was to “contain the rising costs of

health care services, and to ensure the financial solvency of hospi-

tals.” N.J. Stat. Ann. 26:2H-1. Under this prospective rate-setting

system, various medical procedures are divided into “diagnostic re-

lated groups” (“DRGs”), and a rate is assigned to each DRG. A

particular hospital’s DRG rate consists of a weighted average of the

costs incurred by the hospital in treating a given condition and the

average cost incurred by hospitals throughout the state to treat that

condition. The system thus penalizes hospitals that incur costs

greater than the state wide average and rewards hospitals that pro-

vide more efficient service for a particular DRG. Patients in the

same DRG at a particular hospital pay the same bill regardless of

the duration of their stays and the demands they make on the re-

sources of the hospital.

The DRG rate is the base rate under New Jersey’s system. A

patient’s bill will have other components, and it is these compo-

nents that the plans challenge as inconsistent with ERISA. Hospi-

tals in New Jersey are required by law to provide treatment for pa-

tients who cannot pay their bills. N.J. Admin. Code 8:436-5.2(c).

Emergency services for the indigent are required by federal law as

well. Thus, one cost of doing business for New Jersey hospitals is

the cost of providing “uncompensated care.” In order to pay for this

care and to provide financial relief to those hospitals that provide

more than their share of uncompensated care, a state wide charge is

added to the DRG, and the resulting revenue is distributed in pro-

portion to the uncompensated care provided by each hospital.

An additional surcharge is designed to compensate hospitals for

the losses they incur when treating patients covered by Medicare.

Hospitals that treat Medicare patients can charge those patients only

the amount allotted by the federal Medicare agency for the particu-

lar treatment provided. Medicare now provides reimbursement at

levels below the DRG rates. To enable New Jersey hospitals to

make up for the resulting revenue shortfall, the current New Jersey

2la

system allows hospitals to include in their billings to non-Medicare

patients an amount necessary to recover the difference between the

Medicare rate of payment and the DRG rate.

Chapter 83 also grants discounts to certain classes of payors.

The relevant section provides in part:

All payment rates shall be equitable for each payor or class of

payors without discrimination or individual preference except

for quantifiable economic benefits rendered to the institution

or to the health care delivery system taken as a whole. In ad-

dition to other such benefits which the commission may con-

sider, it shall consider the following, if found to be quantifi-

able: (1) degree of promptness and volume of payments to

hospitals so that hospitals are provided with funds for current

financing of their services, and (2) broad provision of health

insurance coverages which are not self-supporting. In deter-

mining the quantifiable economic benefits to which consider-

ation shal! be given in approving payment rates, the commis-

sion may consider overall financial benefits to society which

are provided by programs offered by a payor or class of

payors.

26:2H-18b N.J. Stat. Ann. Pursuant to this provision, the commis-

sion granted a 2.2% discount to high-volume plans such as Blue

Cross and granted an 11% discount to plans with open enrollment.

Patients who do not belong to plans that received these discounts

are billed at an increased rate to allow hospitals to recover the in-

come lost by virtue of the discount. One of the plaintiff plans has

applied for a discount under this portion of Chapter 83, but the

commission has not yet ruled on its application.’

' Individuals and third party payors can challenge a bill, through appeal, for such

things as an alleged incorrect assignment of a DRG. Only an uninsured individual

whose DRG bill exceeds his or her itemized medical costs by $250 may appeal “in

exceptional cases of DRG assignments which, although technically correct, may

produce grossly inequitable or excessive payments . . . . Upon demonstration, by

substantial evidence, that application of the DRG system would result in inequita-

ble consequences for the patient, the qualified utilization review organization may

direct that payment be based on an alternative to the DRG rate (for example,

charges).” N.J. Admin. Code 8:31B-3.78(a)viii. Unlike the surcharges to offset the

costs of indigent care, Medicare, and payor discounts, the provision of Chapter 83

that allows some uninsured individuals to reduce their bills does not result in a

specific surcharge that is added to the bills of other paying customers. This equita-

ble over-ride for some uninsured individuals does not single out participants in

ERISA plans for special treatment. It is not available to any individual who is

entitled to reimbursement of medical expenses from any third party payor.

22a

At the threshold of our consideration we must determine whether

this case is moot. The regulatory scheme we have just described

was superseded by new state legislation on January 1, 1993. As we

have noted, however, the plans seek not only an injunction against

enforcement of the (now superseded) Act, but also restitution of

monies paid by appellees pursuant to the Act while it was in effect.

If the Act is infirm for either of the reasons asserted, the claim of

restitution remains viable even though an injunction is no longer

necessary. In order to adjudicate the merits of the restitution claim,

we must determine if the monies were paid pursuant to an unlawful

statutory scheme.? We thus turn our attention to an evaluation of

the lawfulness of the Act.

III.

For the reasons set forth by the district court in its opinion, we

find that the extra costs paid by the plans pursuant to the Act do not

constitute an unlawful taking of property without just compensa-

tion. See, United Wire, Health & Welfare Fund v. Morristown, 794

=. Supp. 524, 540-42 (D.N.J. 1992).

In Penn Central Transporiation Co. v. New York City, 438 U.S.

104 (1978), the Supreme Court utilized a three prong analysis to

determine whether a governmental regulation constituted a taking.

The Penn Central analysis directs our attention to (i) the character

(Continued)

The record does not disclose how many uninsured individuals have filed appeals

under the equitable over-ride provision, and we find no record basis for the sugges-

tion that the “transparent goal ... of this appeal process” is to impose “the lion's

share of [the cost of caring] for the uninsured” on New Jersey's ERISA plans.

Dissenting Op., pp. 39, 41.

2 The plans assert that 29 U.S.C. § 1132(a) and federal common law give them a

right to recover the amounts they have paid to the hospitals under protest. The

district court did not expressly determine whether § 1132(a) or the federal common

law provided a right to restitution under the circumstances of this case. Its opinion,

however, states that it “declines to exercise its pendent and supplemental jurisdic-

tion over plaintiffs’ restitution claims,” 793 F.Supp. at 542, perhaps indicating that

the district court may have viewed state law as providing the plaintiffs’ only possi-

ble remedy. In view of our ultimate conclusion that chapter 83 is not preempted,

we have no occasion to reach this issue. It is sufficient for our purposes to note

that a case or controversy remains between the parties; the preemption issue is not

moot because the plaintiffs make a claim for restitution, and an essential element

of that claim is that ERISA’s preemption provision has been violated.

ii

23a

of the governmental action; (ii) the economic impact of the regula-

tion on the claimant; and (iii) the extent to which the regulation has

interfered with investment backed expectations. Penn Central at

124. Regarding the character of the government action, we con-

clude that New Jersey “does not physically invade or permanently

appropriate any of the [plan’s] assets for its own use,” but rather

“adjusts the benefits and burdens of economic life to promote the

common good”. Connolly y. Pension Guaranty Corp., 475 U.S.

211, 225 (1986). Similarly, the economic impact of the Act upon

the appellees indicates that no taking has occurred. While appellees _

have been deprived of money by operation of the Act, the determi-

nation of the amount owed was not randomly generated, but was

rather “directly related to the individual [appellee’s] hospital bill.”

United Wire, 793 F.Supp. at 542. Finally, given the historically

heavy and constant regulation of health care in New Jersey, we can-

not say that the Act interfered with the plans’ “investment backed

expectations.” We thus affirm the district court’s summary judg-

ment for the defendants on the constitutional claim.

IV.

Whether the Act is preempted by ERISA is a somewhat thornier

question. Section 514(a) of ERISA provides that, with some excep-

tions that do not apply in this case, ERISA “shall supersede any and

all State laws insofar as they may now or hereafter relate to any

employee benefit plan” covered by ERISA. It is undisputed that the

plans are covered by ERISA, and so the question to be determined

is whether the Act “relate[s] to” the plans in a way that necessitates

preemption. We find that the Act does not relate to the plans in a

way that triggers ERISA’s preemption clause.

The preemption clause of ERISA is notable for its breadth, and

manifests Congress’s intention to establish pension plan regulation

as an exclusively federal concern. Alessi v. Raybestos-Manhattan,

Inc., 451 U.S. 504 (1981). The Supreme Court has noted that a

state law “relates to” an ERISA governed plan, within the meaning

of § 514(a)’s preemptive reach, “if it has a connection with or refer-

ence to such a plan.” Shaw v. Delta Airlines, 463 U.S. 85, 97

(1983). The Court in Shaw noted, however, that “{s]ome state ac-

tions may affect employee benefit plans in too tenuous, remote, or

peripheral a manner to warrant a finding that the law “relates to”

the plan. 463 U.S. at 100, n. 21.

24a

In determining whether the New Jersey scheme of regulating

hospital rates is preempted by ERISA, “as in any preemption analy-

sis, ‘the purpose of Congress is the ultimate touchstone.’ ” Metro-

politan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 747 (1985)

(quoting Malone v. White Motor Corp., 435 U.S. 497, 504 (1978)).

The Supreme Court discussed at length the Congressional intent be-

hind the ERISA preemption clause in Fort Halifax Packing Co. v.

Coyne, 482 U.S. 1 (1987). In Fort Halifax the Court was faced with

the question of whether ERISA preempted a Maine statute requir-

ing employers, in the event of a plant closing, to provide a one-time

severance payment to employees not covered by an express contract

providing for severance pay. In the course of holding that the

Maine statute was not preempted, the Court explained the Congres-

sional intent behind ERISA’s preemption clause:

[A]n employer that makes a commitment systematically to pay

certain benefits undertakes a host of obligations, such as de-

termining the eligibility of claimants, calculating benefit

levels, making disbursements, monitoring the availability of

funds for benefit payment, and keeping appropriate records in

order to comply with applicable reporting requirements. The

most efficient way to meet these responsibilities is to establish

a uniform administrative scheme, which provides a set of

standard procedures to guide processing of claims and dis-

bursement of benefits. Such a system is difficult to achieve,

however, if a benefit plan is subject to differing regulatory re-

quirements in differing States. A plan would be required to

keep certain records in some States but not in others; to make

certain benefits available in some States but not in others; to

process claims in a certain way in some States but not in

others; and to comply with certain fiduciary standards in some

States but not in others.

see eee &

It is thus clear that ERISA’s pre-emption provision was

prompted by recognition that employers establishing and

maintaining employee benefit plans are faced with the task of

coordinating complex administrative activities. A patch-work

scheme of regulation would introduce considerable inefficien-

cies in benefit program operation, which might lead those em-

ployers with existing plans to reduce benefits, and those with-

out such plans to refrain from adopting them. Pre-emption

25a

ensures that the administrative practices of a benefit plan will

be governed by only a single set of regulations.

Fort Halifax, 482 U.S. at 9, 11. It is with this Congressional pur-

pose in mind that one must read the myriad of ERISA preemption

cases that have been decided in the courts since ERISA was

adopted. It informs the following analysis of these cases.

A tule of law relates to an ERISA plan if it is specifically de-

signed to affect employee benefit plans, if it singles out such plans

for special treatment,‘ or if the rights or restrictions it creates are

predicated on the existence of such a plan.’ Because we are here

dealing with a statute of general applicability that is designed to

establish the prices to be paid for hospital services, which does not

single out ERISA plans for special treatment, and which functions

without regard to the existence of such plans, the cases which have

cordoned off this area of preemption are inapplicable.®

* See, e.g., Bricklayers Local 33 v. America’s Marble Source, 950 F.2d 114 (3d

Cir. 1991) (ERISA preempts a New Jersey statute that regulates the payment of

fringe benefits); McMahon v. McDowell, 794 F.2d 100 (3d Cir. 1986) (ERISA

preempts a Pennsylvania statute that allowed employees to collect unpaid ERISA

plan benefits directly from the officers of a company, thus adding to the employee

plans another means of collecting benefits), cert. denied, 479 U.S. 971 (1986).

* See, e.g., Mackey v. Lanier Collection Agency and Service, Inc., 486 U.S. 825

(1988) (a portion of Georgia’s garnishment statute “which singles out ERISA plan,

by express reference, for special treatment is preempted.” /d., at 838, n. 12:

McCoy v. Massachusetts Institute of Technology, 950 F.2d 13, 19 (ist Cir. 1991)

(ERISA preempts a Massachusetts lien statute which “expressly singles out ERISA

plans for special treatment.”), cert. denied, 112 S.Ct. 1939 (1992).

* E.g., District of Columbia v. Greater Washington Bd. of Trade, 113 S.Ct. 580

(1992) (ERISA preempts a District of Columbia statute that required employers

who provide health insurance for their employees to provide equivalent health in-

surance coverage for injured employees eligible for workers’ compensation bene-

fits); Ingersoll-Rand Co. v. McClendon, 111 S.Ct. 478 (1990) (ERISA preempts

employee's state law wrongful discharge claim where claim was based on allega-

tion that discharge was motivated by employer’s desire to avoid making contribu-

tions to employee's pension fund).

* As the plans correctly point out, the Supreme Court has declared that the phrase

“relates to” in § 514(a) is used “in the normal sense of the phrase” and has cited

the definition of “Relate” found in Black’s Law Dictionary. That definition in-

cludes “to refer to” as one accepted meaning. Shaw v. Delta Air Lines, Inc., 463

U.S. 85, 97, n. 16 (1983). Nevertheless, we disagree with the plans’ argument that

Chapter 83 is preempted simply because it expressly refers to “self-funded union”

plans as one example of a “third party payor”. Where, as here, a reference to an

ERISA plan can be excised without altering the legal effect of a statute in any way,

we believe the reference should be regarded as without legal consequence for

§ 514(a) purposes. Thus, for example, a state statute providing that “no employer,

including an ERISA plan, shall discriminate on grounds of race or gender” would

not be preempted despite its reference to an ERISA plan. See footmote 11 infra.

sical

26a

This does not end our inquiry, however. A state rule of law may

be preempted even though it has no such direct nexus with ERISA

plans if its effect is to dictate or restrict the choices of ERISA plans

with regard to their benefits, structure, reporting and administra-

tion, or if allowing states to have such rules would impair the ability

of a plan to function simultaneously in a number of states.’

New Jersey’s scheme may increase the charges billed to ERISA

plan participants for hospital services. This will mean that for any

plan which commits to pay all or some lesser percentage of a par-

ticipant’s hospital costs will be called upon to pay more in benefits

than it otherwise would. This effect is no different in kind, how-

ever, from any state regulation that increases the cost of goods or

services that hospitals consume and pass on in hospital costs, i.e.,

utility costs, the wages of its employees, waste disposal costs, etc.

New Jersey’s scheme does not direct ERISA plans to structure their

(Continued)

We also disagree with the dissenting opinion’s suggestion that a statute should

be preempted solely because the participation of ERISA plans is required as a mat-

ter of economics in order for the statute to meet its social goals. This is not what

we understand the Supreme Court to have meant in Greater Washington Board of

Trade when it held that statutes predicated on the existence of ERISA plans “relate

to” such plans. The statute in that case could not be applied without reference to

the “coverage levels set forth in ERISA plans.” As we understand it, it is of no

legal consequence if removing ERISA plans from the scene would diminish the

likelihood that the statute would meet its social goals. Rather, the test for preemp-

tion in this regard is whether the existence of ERISA plans is necessary for the

statute to be meaningfully applied. Greater Washington Board of Trade, 113 S.Ct.

at 583-84.

7 See, e.g., FMC Corp. v. Holiday, 111 S.Ct. 403, 408 (1990) (ERISA preempts a

Pennsylvania antisubrogation statute which prevented Pennsylvania plans “from

being structured in a manner requiring reimbursement in the event of recovery

from a third party”); Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504 (1981)

(ERISA preempts New Jersey statute insofar as that statute prevents ERISA plans

from decreasing benefits by the amount a recipient is awarded in worker’s com-

pensation subsequent to retirement); Hampton Industries Inc. v. Sparrow, 981 F.2d

726 (4th Cir. 1992); (ERISA preempts a North Carolina antisubrogation statute);

National Elevator Industry, Inc. v. Calhoun, 957 F.2d 1555, 1561 (10th Cir. 1992)

(ERISA preempts administrative interpretation of Oklahoma’s prevailing wage

statute insofar as it determines rates of pay and “may be used to effect change in

the administration, structure and benefits of an ERISA plan”), cert. denied, 113

S.Ct. 406; Michigan Carpenters Council v. C. J. Rogers, Inc., 933 F.2d 376 (6th

Cir. 1991) (ERISA preempts Michigan state corporate reorganization statute that

allows employers unilaterally to alter their obligation to ERISA plans), cert. de-

nied, 112 S.Ct. 585 (1991); Arkansas Blue Cross & Blue Shield v. St. Mary’s Hos-

pital, 947 F.2d 1341 (8th Cir. 1991) (ERISA preempts Arkansas statute regulating

the assignment of benefits to health care providers), cert. denied, 112 S.Ct. 2305

(1992).

27a

benefits or conduct their internal affairs in any particular way. Nor

does it deprive ERISA plans of any alternative they would other-

wise have in these areas. Finally, since the cost of hospital services

will necessarily vary from region to region, we fail to see how state

regulation of hospital pricing like that chosen by New Jersey is

likely to make interstate operation of an ERISA plan more difficult.

Where there is no direct nexus between a state statute and ERISA

plans, no effect on the manner of such plans’ conducting business

or their ability to operate in interstate commerce, statutes have been

upheld despite the fact that they may have the indirect ultimate ef-

fect of increasing plan costs. In Mackey v. Lanier Collection

Agency and Service, Inc., 486 U.S. 825 (1988), for example, the

court held that Georgia’s general statute authorizing garnishment of

obligations due debtors could be utilized by creditors of ERISA

plan participants to require the application of plan benefits to sat-

isfy participants’ personal debts. Georgia garnishment law as so

applied was found not to be preempted by § 514(a) despite the fact

that “benefit plans subjected to garnishment ... incur substantial

administrative burdens and costs” in responding to garnishment

summons.

The most helpful case in the present context is Rebaldo v.

Cuomo, 749 F.2d 133 (2d Cir. 1984), where the court sustained

against a preemption challenge a New York statute setting the rates

that hospitals in that state had to charge patients, including those

who were participants in self-insured employee benefit plans. The

court, after noting the obvious “fact that ERISA plan members and

managers are bound to engage in myriad transactions that Congress

never considered when it drafted § 514,” made the following obser-

vations that seem equally pertinent here:

A preemption provision designed to prevent state interference

with federal control of ERISA plans does not require the crea-

tion of a fully insulated legal world that excludes these plans

from regulation of any purely local transaction.

see ee 4 &

The purchase of hospital service is like the purchase of public

utility service, or of any other service or commodity whose

price is controlled by the State. Insofar as the regulation of

hospital rates affects a plan’s cost of doing business, it also

may be analogized to State labor laws that govern working

conditions and labor costs, to rent control laws that determine

28a

what employee benefit plans pay or receive for rental prop-

erty, and even to such minor costs as the Thruway, bridge and

tunnel tolls that are charged to plans’ officers or employees.

In short, if ERISA is held to invalidate every State action that

may increase the cost of operating employee benefit plans,

those plans will be permitted a charmed existence that never

was contemplated by Congress. Where, as here, a State stat-

ute of general application does not affect the structure, the ad-

ministration, or the type of benefits provided by an ERISA

plan, the mere fact that the statute has some economic impact

on the plan does not require that the statute be invalidated.

Moreover, such indirect economic impact as may result

from State control over hospital rates does not run counter to

ERISA’s aim of national uniformity in plan regulation. See

Shaw v. Delta Air Lines, Inc., supra, 103 S.Ct. at 2890 n. 20.

There is no valid reason why employee benefit plans cannot

be subject to nationally uniform supervision despite dissimi-

larities in their costs of doing business. Indeed, if statutes

such as section 2807-a(6)(b) of New York’s Public Health

Law are held to be preempted by ERISA, every hospital will

be able to set its own rates for ERISA plans, and appellee does

not contend that these rates are, or will be, uniform, even as

between hospitals in the same iocality.

749 F.2d at 138-9.

The plans insist that Rebaldo is no longer “good law” in light of

the Supreme Court’s subsequent decision in Jngersoll-Rand Co. v.

McClendon, 111 S.Ct. 478 (1990). While we agree that a portion of

the Rebaldo court’s analysis was rejected in Ingersoll-Rand, the

above-quoted reasoning remains persuasive and we are confident

that Rebaldo would have been decided in the same way if the court

had had the benefit of the teachings of Jngersoll-Rand.®

* We thus find ourselves unpersuaded by the Southern District of New York’s

recent opinion in 7ravelers Insurance Co. v. Cuomo, 813 F. Supp. 996, which sug-

gested that Rebaldo has been entirely eroded by opinions of the Supreme Court.

The opinion proceeds from what appears to us to be a misconstruction of the Su-

preme Court’s opinion in FMC Corp. v. Holliday, 111 S. Ct. 403 (1990). The

court in that case seems to understand FMC to have been concerned with present-

ing uniform costs of doing business to plan administrators. By our reading, how-

ever, FMC was concerned to prevent a state statute from forcing decisions regard-

ing the internal design and structure of benefit plans (e.g. who may collect, and

how, and from whom).

29a

In Ingersoll-Rand, the Supreme Court addressed the issue of

whether § 514(a) preempts a state cause of action in favor of an

employee terminated to prevent the vesting of his or her pension

benefits. It was confronted with an argument that the phrase “relate

to any employment benefit plan” should be read in the context of

§ 514 as a whole and that the wording of §514(c)(2) indicates that

§ 514 preempts only a state law which “purports to regulate, . . .

directly or indirectly, the terms and conditions of employee benefits

plans.” 29 U.S.C. §1144(c)(2).° If § 514(c)(2) did so limit the

scope of § 514, the state cause of action at issue would not be pre-

empted because it did not purport to regulate the terms and condi-

tions of ERISA plans. The Supreme Court determined, however,

that §514 preemption was not so limited and that it extended to a

state cause of action predicated on the existence of an employee

benefit plan. Since one of the elements of the state cause of action

was the existence of such a plan, the Supreme Court had “no diffi-

culty in concluding” that it was preempted. Jd. at 483. It explained,

... We are not dealing here with a generally applicable statute

that makes no reference to, or indeed functions irrespective of,

the existence of an ERISA plan. Nor is the cost of defending

this lawsuit a mere administrative burden. Here, the existence

of a pension plan is a critical factor in establishing liability

under the State’s wrongful discharge law. As a result, this

cause of action relates not merely to pension benefits, but to

the essence of the pension plan itself.

While the court in Rebaldo did suggest that § 514(c)(2) could be

read to limit the scope of § 514 preemption," this was not the

touchstone of its analysis. Unlike the court in Ingersoll-Rand, the

Rebaldo court was “dealing ... with a generally applicable statute

that makes no reference to, [and] functions irrespective of, the exis-

tence of an ERISA plan.” /d. at 483, and that affects such plans only

by increasing their costs of doing business. As the above-quoted

portions of the opinion bear witness, it was the absence of a direct

nexus to ERISA plans and the limited nature of the statute’s impact

on such plans that put the pricing regulation in Rebaldo beyond the

scope of § 514 preemption."!

. Section 514(c)(2) reads in full:

The term “State” includes a State, any political subdivisions thereof, or

any agency or instrumentality of either, which purports to regulate, directly

30a

In summary, we, too, have before us a generally applicable law

which (1) is not intended to regulate the affairs of ERISA plans, (2)

neither singles out such plans for special treatment nor predicates

rights or obligations on the existence of an ERISA plan, and (3)

does not have either the effect of dictating or restricting the manner

in which ERISA plans structure or conduct their affairs or the effect

of impairing their ability to operate simultaneously in more than

one state. We have found no case that has held such a law to be

preempted by § 514(a), and we decline to so hold.

As we analyze the issue before us, we are not troubled, as was the

district court, by what the plans refer to as the cost shifting aspects

of New Jersey’s program. The district court accepted the plans’

argument that New Jersey was requiring them to act in a manner

inconsistent with their obligation under ERISA to apply fund assets

only for the benefit of fund participants. Were this the case, New

Jersey’s statute would, of course, be preempted as applied to the

plans. But plaintiffs purport to understand ERISA to impose upon

them a burden which would be an intolerable one and which we are

confident Congress never intended ERISA plans to bear.

The plans argue that their fiduciary duty to apply fund assets

only for the benefit of fund beneficiaries forbids them from paying

for hospital services received by those beneficiaries if any portion

of the price paid can be viewed as attributable to the cost of provid-

ing services to others, such as indigent and Medicare patients. As

(Continued)

or indirectly, the terms and conditions of employee benefit plans covered by

this subchapter.

29 U.S.C. § 1144(c\(2).

© The infirmity of this portion of the Rebaldo opinion is noted by the Court of

Appeals for the Second Circuit in Smith v. Dunham-Bush, Inc., 959 F.2d 6, 9 n. 3

(2d Cir. 1992).

'! The reasoning of the court in Rebaldo parallels that in Lane v. Goren, 743 F.2d

1337 (9th Cir. 1984) which held that the application of California’s anti-discrimi-

nation laws to the employment practices of an ERISA plan’s trustees is not pre-

empted by ERISA. The court so held because the California law affected the trus-

tees only in their “capacity as an employer, and in a way that all other employers

were affected,” Jd. at 1340, because the only effect was to increase the trustee’s

costs of doing business. The court noted:

That argument does not withstand scrutiny. So too, for example, do state

law and municipal ordinances regulating zoning, health, and safety increase

the operational costs of ERISA trusts, but no one could seriously argue that

they are preempted.

See, also, Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 97 n. 17 (1983) (New York’s

anti-discrimination law as applied to ERISA plans is not preempted “insofar as it

prohibits employment discrimination in hiring, promotion, salary, and the like”).

i nciiiiiiiiialiihitsiiaiiaaiaiihitt a iaatee

3la

the plans appear to us to concede, however, it would be impossible

to have a requirement that ERISA plans must “look through” to the

pricing structure of every health care provider to assure that the

price of the services rendered a particular patient directly correlates

with the costs of those services. We think an ERISA plan meets its

ERISA responsibilities when it pays whatever portion of the price

charged by the health care provider the plan has assumed.

First, the plans do not challenge the base DRG rate feature of

New Jersey’s price control program even though it is inherent in

this approach that a patient having an appendectomy who winds up

in intensive care for two weeks pays the same amount as another

patient who has an appendectomy and leaves the hospital the fol-

lowing day. The plans do not challenge this aspect of the plan be-

cause they acknowledge that it is not feasible in any real sense to

isolate the costs attributable to any particular patient. The plans

understandably add that if they have enough appendectomy patients

over the years the costs they pay on behalf of others theoretically

will be offset by the costs other pay on behalf of plan participants.

It nevertheless remains true that the portions of the New Jersey

scheme unchallenged by the plans recognize the prohibitive transac-

tions costs associated with matching any particular disbursement of

fund assets to cover a hospital bill with the actual costs of treating

that particular patient.

More importantly, there are many forms of state regulation under

the police power which result in increases in the cost of doing busi-

ness and corresponding increases in prices where the beneficiaries

of the regulation are not those who are paying the increased prices.

States have recently begun to regulate the disposal of medical

wastes, for example, in order to protect those who otherwise would

be adversely affected by socially irresponsible disposal. Such regu-

lations can significantly increase a hospital’s cost of doing business

and, accordingly, its billings to plan participants. We are confident,

however, that ERISA was not intended to foreclose a state regula-

tion of this kind. New Jersey’s decisions to require hospitals to

treat indigents and to treat Medicare patients for the Medicare reim-

bursement seem to us to be similar exercises of its police power.

In short, we are unwilling to attribute to Congress and §514 an

intent to frustrate the efforts of a state, under its police power, to

| regulate health care costs. In particular, we are unwilling to infer

32a

from ERISA’s prohibition against applying fund assets for the ben-

efit of others a Congressional intent to foreclose health care cost

regulation of the kind here challenged.

v.

Having concluded that the challenged portions of Chapter 83 are

not preempted by § 514(a) and are not unconstitutional, we will re-

verse the judgment of the district court, vacate the injunction, and

remand with instructions that judgment be entered for the

defendants. '?

NYGAARD, Circuit Judge, dissenting.

This is a close case because it tests the outer limits of ERISA

preemption. Although my decision is made more difficult because

the New Jersey regulatory scheme (the “Act”) is admirable for its

intended purpose and goals, I think Congress intended to preempt

these kinds of statutes. The issue is: Whether a statute of pur-

ported general applicability “relates to,” in the ordinary and broad

sense of that term, ERISA plans if it disproportionately impacts

upon ERISA plans, presupposes the existence of ERISA plans, and

depends on funds extracted from ERISA plans to implement its leg-

islative mandate. Because I believe that the district court correctly

concluded that such a statute is preempted, see United Wire, Metal

& Machine Health and Welfare Fund v. Morristown Memorial

Hosp., 793 F.Supp. 524, 531-37 (D.N.J. 1992), I respectfully

dissent.

I,

Congress enacted ERISA to subject employee benefit plans to a

uniform system of federal laws governing disclosure, reporting,

standards of conduct, remedies, sanctions, and access to federal

courts. Since uniformity cannot be achieved if ERISA plans are

subject to varying state regulations, Congress preempted “any and

all State laws insofar as they . . . relate to any employee benefit

plans.” ERISA § 514(a), 29 U.S.C. § 1144(a) (emphasis added).

12 It appears that there are plaintiff plans which have not asserted a claim for

restitution. As to any such plaintiff, the passage of the new statute rendered its

case moot. The district court should dismiss the claims of any such plaintiffs be-

fore entering judgment for the defendants on the remaining claims.

ee

33a

Section 514(a) is deliberately expansive and “conspicuous for its

breadth.” FMC Corp. v. Holliday, 498 U.S. 52, 111 S.Ct. 403, 407

(1990). It is “virtually unique” among federal preemption statutes,

Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463

U.S. 1, 24 n.26, 103 S.Ct. 2841, 2854 n.26, as it is “one of the

broadest preemption clauses ever enacted by Congress.” Evans v.

Safeco Life Ins. Co., 916 F.2d 1437, 1439 (9th Cir. 1990).

The term “relate to” must be given a “broad common-sense

meaning.” Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 107 S.Ct.

1549, 1553 (1987). A state law relates to an ERISA plan “in the .

normal sense of the phrase, if it has a connection with or reference

to such a plan.” Shaw v. Delia Air Lines, Inc., 463 U.S. 85, 103

S.Ct. 2890, 2900 (1983). Any connection may trigger preemption,

and preemption is not limited to laws relating to the specific sub-

jects covered by ERISA. Pilot Life, 481 U.S. at 47-48; Shaw, 103

S.Ct. at 2900. That a state law may be “consistent with ERISA’s

substantive requirements” or was enacted to “effectuate ERISA’s

underlying purposes” does not save it from preemption. Metropoli-

tan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 105 S.Ct. 2380,

2388-89 (1985); Mackey v. Lanier Collection Agency & Serv., 486

U.S. 825, 108 S.Ct. 2182, 2185 (1988). A state law may relate to a

benefit plan even if it is not specifically designed to affect such

plans, or its effect is only indirect. Pilot Life, 107 S.Ct. at 1552-53;

Shaw, 103 S.Ct. at 2900; Alessi v. Raybestos-Manhattan, Inc., 451

U.S. 504, 101 S.Ct. 1895, 1907 (1981); Ingersoll-Rand Co. v. Mc-

Clendon, 498 U.S. 133, 111 S.Ct. 478, 483 (1990).

Since no law exists in a vacuum and arguably many laws could be

held to “relate to” ERISA plans, without some limits Section 5 14(a)

could become a legal blackhole with an attractive force no state law

could resist. Hence, some laws are said to affect ERISA plans in

“too tenuous, remote, or peripheral a manner to warrant a finding

that [they] relate to’ the plan.” Shaw, 103 S.Ct. at 2901 n.21. See,

e.g., Mackey, 108 S.Ct. at 2191 (garnishment statute of general ap-

plicability is not preempted). The task then is to determine the pre-

cise relationship between the Act and ERISA plans. Mackey, 108

S.Ct. at 2186.

Il.

The declared public policy of the Act is to “contain the rising

costs of health care services, and to ensure the financial solvency of

hospitals.” N.J.S.A. § 26:2H-1. The linchpin in this scheme is the

34a

DRG rate, which is a statistical average of costs incurred by hospi-

tals to perform a particular medical procedure. The DRG is the rate

hospitals must bill for particular services. Thus, it functions as both

a price cap and an incentive to reduce costs.

The plans do not challenge the validity of the DRG rate scheme,

but only attack three surcharge components incorporated into the

DRG. They are costs for uncompensated care and bad debts.

Medicare cost shifts, and costs related to discounts given to certain

payer groups. Only hospital patients, not the general public, pay

these costs. The New Jersey scheme is, quite simply, a cost-shifting

mechanism whereby those who do not have deep pockets or are fa-

vored by the law are given discounts or free services. Since these

discounts and services cause state-mandated financial losses to hos-

pitals, the Act remunerates hospitals by shifting these losses

through the DRG resulting in additional 19.7% and 7% surcharges

in uncompensated and Medicare costs shifts to those with deep

pockets — commercial insurers and ERISA plans.

ERISA plans play a critical role in this scheme, to the point

where without them it would fall apart. They comprise a major

segment of the paying hospital service users who subsidize those

favored by the Act. The structure of the scheme indicates in not-so-

subtle ways that the New Jersey legislature was well aware of the

pivotal role ERISA plans would play in its scheme. Upon pain of

not receiving reimbursements for their uncompensated care costs,

the Act requires hospitals to screen patients to determine whether

they are covered by a commercial insurer or a “union welfare plan.”

N.J.S.A. § 26:2H-18.31(c)(2). Also, under the appeal policy ex-

isting at the time, while individual patients as well as third-party

payors could have appealed mistakes in the assignment of a particu-

lar DRG, only individual patients could have appealed an assign-

ment of a DRG that was technically correct but may have been ex-

cessive. “The third-party payer (commercial insurer, self-funded

union, etc.)” was specifically excluded from appealing a correct but

excessive charge. A vast majority of appeals, about 85%, were

based on excessive charges, and only about 1% of them were de-

nied. Thus, the goal is transparent and little explanation is needed

to see what this appeal process was designed to do.

In October 1990, the New Jersey Governor’s Commission on

Health Care Cost submitted a report that plainly concluded: “Only a

portion of New Jersey businesses, those who purchase insurance for

their workers, pay the lion’s share of caring for the uninsured.” It

35a

summarized the impact on employee benefit plans: “It was apparent

that rapidly rising health insurance costs were a significant burden

to both the business community and the labor force in this State

with the potential to negatively affect New Jersey citizens . . . that

the Uncompensated Care Trust Fund while affording access to hos-

pital services was unfairly financed on the backs of those who had

health insurance... .”

Last, the State concedes that the scheme is not “viable”’without

money from the plans as they “represent a major segment of the

bill-paying public, to the point that it is impossible to devise a via-

ble hospital rate-setting scheme if that segment is excluded or ex-

empted from the scheme.” Br. 2 (emphasis added). This concession

dispels any doubt that the effect of the Act is to reach into the deep

pockets of ERISA funds.

The Act provides a conduit by which money is transferred from,

among others, ERISA plans to hospitals. Rather than spend its own

general funds, New Jersey implemented a money transfer scheme

where ERISA plans subsidize the medical bills of those who are

favored by law. One affidavit accurately concluded: “Indeed, if the

State of New Jersey were to assume the uncompensated care and

the Medicare cost shift as social obligations from its general reve-

nues, for example, the average hospital bill would decrease on a pro

rata basis by this amount and these shifts would no longer be re-

flected in New Jersey hospital bills.”

Ill.

The majority believes that the connection between the Act and

ERISA plans is too tenuous and remote “fbJecause we are here

dealing with a statute of general applicability that is designed to

establish the prices to be paid for hospital services, which does not

single out ERISA plans for special treatment, and which functions

without regard to the existence of such plans . . . ."Majority type-

script at 27. The majority relies in part on Mackey v. Lanier Col-

lection Agency & Serv., 108 S.Ct. 2182 (1988), to suggest that

where there is no direct nexus, or where a statute does not directly

affect the administration of ERISA plans, the statute is not pre-

empted despite any “indirect ultimate effect of increasing plan

costs.” Majority typescript at 29.

In Mackey the issue was whether a generally applicable Georgia

garnishment statute was preempted by ERISA. The Court first rec-

ognized that a statute need not specifically single out, mention, or

36a

have a direct nexus to ERISA plans to be preempted. 108 S.Ct. at

2186, citing Pilot Life, 107 S.Ct. at 1552-53, and Shaw, 103 S.Ct. at

2900. The Court held, however, that the statute was not preempted.

In light of certain ERISA provisions, one of which provides a plan

may “sue or be sued” as an entity, 29 U.S.C. § 1132(d)(1), the

Court reasoned that money judgments against ERISA plans must be

collectable in some way and that garnishment is one permissible

method. 108 S.Ct. at 2188 & n.9, citing FHA v. Burr, 309 U.S.

242, 60 S.Ct. 488, 491 (1940) (where Congress provides that an

entity may “sue or be sued” all civil processes incident to legal pro-

ceedings including “garnishment and attachment” may apply).

Thus, Mackey does not stand for the proposition that a generally

applicable statute should not be preempted even though it may re-

sult in some “indirect economic impact.” It stands for the proposi-

tion that where Congress intended for state law to apply to ERISA,

that law will not be preempted even though it may otherwise relate

to ERISA plans by placing indirect financial or administrative bur-

dens on them.!

The majority nowhere shows how any provision in or the struc-

ture of ERISA suggests that Congress did not intend these kinds of

statutes to be preempted. See Malone v. White Motor Corp., 435

U.S. 497, 504 (1978) (“purpose of Congress is the ultimate touch-

stone”). Where Congress adopts a broad preemption provision, the

“task of discerning congressional intent is considerably simplified.”

Ingersoll-Rand, 111 S.Ct. at 482.

Although any connection may suffice, the task is made easier

when the statute refers to or specifically singles out ERISA plans.

The Act requires hospitals to ask patients whether they belong to a

“union welfare plan,” and it expressly excludes “self-funded union”

plans from appealing hospital bills. The majority, however, brushes

these references aside by concluding that they “can be excised with-

out altering the effect of [the]statute in any way,” and therefore they

“should be regarded as without legal consequence for § 514(a) pur-

poses.” Majority typescript at 27 n.6.

' Without the congressional intent derived specifically from the structure of

ERISA, Mackey would probably have been decided differently. Both the majority

and the dissent in Mackey observed that the garnishment law subjected the plans to

“substantial” and “significant administrative burdens and costs.” See 108 S.Ct. at

2186, 2192. Because “plans face the repetitious and costly burden of monitoring

controversies involving hundreds of beneficiaries and participants in various

States.” /d. at 2193, Justices Kennedy, Blackmun, O’Conner, and Scalia

dissented.

37a

The majority underestimates the significance of these references.

New Jersey has implicitly classified all hospital users into two

groups: those who are able to pay and those who are not. This sim-

ple dichotomy then determines “whether the patient is eligible for

participation in a public assistance program,” N.J.S.A. § 26:2H-18-

31(c){3), whether one must pay the three surcharges, and whether

and what one may appeal. A large segment of the small percentage

of patients who are able to fully pay for medical services are plan

beneficiaries, and hence New Jersey requires hospitals to ask

whether a patient belongs to a “union welfare plan.” Thus, the con-

clusion that the references to ERISA plans in the Act “can be ex-

cised without altering the effect of [the] statute in any way” is with-

out support.

Even assuming, arguendo, that the Act does not expressly single

out ERISA plans for special treatment, it does so as applied. One

cannot ignore the practical consequences produced by this statute, a

consequence that according to the report commissioned by the State

resulted in ERISA plans having paid “the lion’s share of caring for

the uninsured.” See Mackey, 108 S.Ct. at 2185 (it is “virtually

taken [] for granted that state laws which are ‘specifically designed

to affect employee benefit plans’ are pre-empted under § 514(a)”).

Moreover, the assumption that the Act “functions without regard

to the existence of such plans” is puzzling in light of the State’s

concession that the Act is not “viable” without ERISA plans. The

Act was designed with ERISA funds in mind. In this sense, it has

been eminently successful; the financial drain on ERISA funds has

been enormous. The surcharges are paid not by the general public

at large, but by the less than 25% of the population who use hospital

services. Of those 25%, about 75% receive the uncompensated care

assessments challenged here. ERISA plan participants comprise

only about 15% of the hospital patients, but pay about 40% of the

more than $1.1 billion shortfall generated by the state-mandated

cost shifts.

In Ingersoll-Rand Co. v. McClendon, 111 S.Ct. 478 (1990), an

employee sued in Texas state court, alleging that he was fired be-

cause his employer did not want to contribute to his pension fund.

He sought damages under various tort and contract theories, but did

not plead an ERISA cause of action. The Texas Supreme Court

recognized a cause of action for wrongful discharge based upon

“the employer’s desire to avoid contributing to or paying benefits

under the employee’s pension fund.” The Supreme Court reversed

38a

and held that the cause of action is preempted because it was pre-

mised on the existence of a pension plan. It reasoned that “to pre-

vail, a plaintiff must plead, and the court must find, that an ERISA

plan exists and the employer had a pension-defeating motive in ter-

minating the employment. Because the court’s inquiry must be di-

rected to the plan, this judicially created cause of action ‘relates to’

an ERISA plan.” Jd. at 483.

Similar to the Texas cause of action, the New Jersey statute is

predicated on the existence of ERISA plans and its mandates cannot

be carried out without ERISA funds. See /d. at 484 (“there simply

is no cause of action if there is no plan”) (emphasis in original).

Also, the costs associated with the New Jersey regulatory scheme

are not qualitatively the same as those in either Mackey or Inger-

soll-Rand. In Mackey, the four dissenting Justices opined that the

administrative burdens of allowing ERISA benefits to be garnished

were so “significant” as to warrant preemption of a generally appli-

cable garnishment statute. 108 S.Ct. at 2192. In Jngersoll-Rand, a

unanimous Supreme Court noted that the litigation costs of defend-

ing against a cause of action predicated upon the existence of an

ERISA plan were substantial. 111 S.Ct. at 483. No one will dis-

pute that these costs pale in comparison to the hundreds of millions

of dollars extracted from ERISA funds under the Act. And while

the majority may classify these costs as “the limited nature of the

statute’s impact on such plans,” I do not.

One may argue that nothing in the Act establishes the level of

benefits or structure plan benefits to include these shifted costs and

that each plan is free to cover all, some or none of these costs. This

argument is unpersuasive. In General Elec. Co. v. New York Dep’t

of Labor, 891 F.2d 25 (2d Cir. 1989), a New York labor law of

general application provided that wages and “supplements”

(nonwage benefits which included ERISA plans) on a public works

contract must at least equal the prevailing rate and benefits paid in

the locality. Where the cost of a benefit provided by an ex-locality

contractor did not match those of a similar prevailing local benefit,

the statute required the contractor either to bring the benefit into

conformity with the local benefit, or to make up the difference

through cash payments to its employees. Nothing in the statute,

however, required a contractor to alter the benefits to match those in

the locality, and the contractor was free to pay cash instead. But the

Court of Appeals for the Second Circuit held that ERISA pre-

empted the labor law. It reasoned that the law clearly related to

39a

ERISA plans in that to conform to the statute contractors had to

maintain “schedules of supplements and wages and to make its

books and records pertaining to wages, supplernents and hours of

labor available for inspection.”’/d. at 29-30.

The Act is analogous to the New York labor statute because it

requires ERISA plans either to pay the surcharges or to restructure

their benefits to avoid them. Since no one likes to pay for benefits

or services one did not receive or benefit from, it is reasonable to

expect that some plans may change their terms to exclude these

costs, just as it was reasonable to expect that some New York con-

tractors would restructure ERISA plans instead of paying cash ben-

efits. Implicit, then, is the assumption that an ERISA plan, if it

does not want to pay for the direct cost of services provided to

nonbeneficiaries, “structure all its benefit payments in accordance

with New Jersey [hospital rates], or to adopt different payment for-

mulae for employees inside and outside of the State.” See Fort Hal-

ifax, 107 S.Ct. at 2217; Alessi, 101 S.Ct. at 1907. This is the pre-

cise reason why Congress enacted such a broad preemption

provision: so that employee benefit plans would not be subject to

the vagaries of state regulations. Jngersoll-Rand, 111 S.Ct. at 484;

Fort Halifax, 107 S.Ct. at 2217.

Because New Jersey has asked ERISA plans to carry ¢’ ~ brunt of

the burden of keeping hospitals financially afloat and, in fact, to

largely subsidize its venture into hospital price regulation, and be-

cause the State admits that result before this court, I agree with the

district court’s conclusion that there is a definite, palpable connec-

tion between the Act and the plan. See United Wire, 793 F.Supp. at

531-37.

IV.

Much attention in this appeal has been focused on Rebaldo v.

Cuomo, 749 F.2d 133 (2d Cir. 1984). The New York statute pro-

vided that the state must establish for each hospital an “inpatient

revenue cap,” which was a price cap with additional allowances

made for bad debts and charity care. The statute allowed certain

programs, like Blue Cross, to get discounts, but certain ERISA

plans did not qualify. The Court of Appeals for the Second Circuit

first reasoned that because Section 514(c)(2) defines “State” as any

agency, instrumentality or political subdivision that “purports to

40a

regulate, directly or indirectly, the terms and conditions of em-

ployee benefit plans.” 29 U.S.C. § 1144(c)(2), this restriction modi-

fies Section 514(a)’s broad preemption provision. 749 F.2d at 137.

The court held that where “a State statute of general application

does not affect the structure, the administration, or the type of bene-

fits provided by an ERISA plan, the mere fact that the statute has

some economic impact on the plan does not require that the statute

be invalidated.” Jd. at 139. This holding is now infirm as the Su-

preme Court has since rejected the view that the definition of

“State” restricts the scope of Section 514(a). Ingersoll-Rand, 111

S.Ct. at 484?

The Rebaldo court justified its holding with an economic/policy

argument. It reasoned that the regulation of hospital rates are anal-

ogous to any state regulations that increase the cost of doing busi-

ness for hospitals. 749 F.2d at 138. Thus, for example, the court

opined that ERISA plans could not contend that they are exempt

from price increases as a result of increased labor, utility, or rent

costs, or from such minor costs as the bridge and tunnel tolls that

are charged to plan officers or employees. Jd. Moreover, it opined

that since ERISA plans can be subject to nationally uniform super-

vision despite dissimilarities in hospital prices, any “indirect eco-

nomic impact” would be consistent with ERISA’s aim of national

uniformity in plan regulation. Jd. at 139.

Recently, even this economic rationale, for whatever worth it had,

has been eroded. Although the Rebaldo court suggested that “State

labor laws that govern working conditions and labor costs . . . that

[have] some economic impact on the plan”would not be preeiapted,

id. at 138-39, the Court of Appeals for the Second Circuit has since

retreated from this position and has preempted a generally applica-

ble statute governing labor costs that imposed upon ERISA plans

indirect financial and administrative burdens. General Electric,

891 F.2d at 29-30.’

2 Although the majority recognizes that Jngersoll-Rand overruled Rebaldo, at

least in part, it distinguishes Jngersoll-Rand on the basis that the Rebaldo court

dealt with “‘a generally applicable statute that makes no reference to, [and] func-

tions irrespective of, the existence of an ERISA plan.’” Majority typescript at 32,

quoting /ngersoll-Rand, 111 S.Ct. at 483. Of course, that is the question here.

3 Indeed, although Judge Van Graafeiland authored both Rebaldo and General

Electric, the dissent in General Electric considered Rebaldo controlling:

The majority does not attempt to distinguish Rebaldo and Aetna Life nor,

in my view, could it sensibly do so. Like the statutes we upheld in those

decisions, New York’s prevailing wage statute is a law of general application

ee

4la

Despite the Supreme Court’s rejection of the holding in Rebaldo

and the Court of Appeals for the Second Circuit’s implicit rejection

of what appears to be the rest, the majority nonetheless relies heav-

ily on it. Faced with Section 514(a)’s sweeping preemption provi-

sion and the cause-and-effect financial connection between the Act

and ERISA funds, the majority justifies its decision by reasoning

that the Act is analogous to any number of state laws that may indi-

rectly increase the cost of doing business, such as regulations gov-

erning labor, utility, or rent costs. Majority typescript at 29. It

suggests as an example that regulations concerning the disposal of

medical waste would not be preempted though their implementation

may net higher medical bills as a result of the increased cost of

doing business. Jd. at 33.

I agree with the majority insofar as ERISA plans do not lead a

“charmed existence.” Rebaldo, 749 F.2d at 139. They are, of

course, not exempt from paying rent, tolls, or even the many over-

head costs associated with hospital management. The DRG takes

into account both direct costs, such as hospital employees’ salaries

and benefits, and indirect costs, such as institutional overhead ex-

penses for management, research, education and maintenance. The

plans, however, do not argue that the entire DRG system is incom-

patible with ERISA; they do not argue that they must only pay the

“actual costs” for medical services; they do not argue that any laws

that increase the cost of doing business for hospitals do not apply to

them; nor do they argue that they are entitled to pay to the penny

only their pro rata share of overhead and incidental costs. They

argue instead that the three surcharges differ from ordinary over-

head costs in two important ways: first, plan participants derive no

benefit from these surcharges; second, these surcharges are not eq-

uitably distributed to the general population, or to the State, or to

even hospital users, but are placed squarely on the shoulders of

commercial insurers and ERISA plans. As a result, they contend

(Continued)

whose tangential effects on employee benefits plans are negligible and

wholly incidental to the law’s primary purpose.

891 F.2d at 31.

The rejection of Rebaldo is understandable. It is not so much attributable to

inconsistent decision making as to the court’s recognition that ERISA preemption

is as broad as the statute would suggest. The Court of Appeals for the Second

Circuit decided Rebaldo in 1984, without the benefit of, among other cases. Hol-

liday, Pilot Life, Metropolitan Life, Mackey, and Ingersoll-Rand

42a

that they are forced to subsidize nonparticipant patients with

ERISA funds.

The majority largely ignores these distinctions, choosing instead

to sweep all state-mandated costs under the general penumbra of

“overhead” costs. When states regulate, for example, utility, labor,

education or medical sanitation, they increase the cost of doing bus-

iness. To remain solvent and be able to provide services, businesses

must be able to incorporate into prices these increases. In a market-

based system, each consumer will pay for costs attributable to run-

ning the business, so overhead is part of the indirect costs associ-

ated with the purchase of goods and services. Since it is adminis-

tratively impossible to isolate the precise actual costs attributable to

any particular patient, many of the direct and indirect costs incorpo-

rated into the DRG such as overhead for management and mainte-

nance are proper. The plans do not contend otherwise.

The surcharges are a different story, however. They are not indi-

rect costs associated with any hospital services to plan benefi-

ciaries. They are the direct cost of hospital services rendered to

other patients, which have then been shifted to ERISA plans. One

can argue, as the appellants do, that even businesses incorporate

losses involved in stolen merchandises and bad debts into their

prices. But the issue is not whether ERISA protects plans from the

imposition of these kinds of costs because ERISA preempts only

“state law” and not private action, or whether ERISA plans are enti-

tled to nationally uniform hospital prices because that is impossible.

The issue is whether state regulations have interfered with the oper-

ation of ERISA plans to the point where the plans have suffered

large financial losses.

The argument that plans are affected the same way without regu-

lations is based on questionable applications of economic assump-

tions. In a free market system, as well as most regulated systems,

no business would knowingly sell to one who cannot in full or in

part pay, whereas here New Jersey requires hospitals to provide

services regardless of the ability to pay and then places the losses

squarely on a small class of patients. Without the Act, the financial

calculus and its effects on ERISA funds would change drastically.

Since each hospital will have different rates depending in part upon

their total losses, with urban hospitals, for example, incurring more

losses from indigent care and bad debts, the plans would be free to

select hospitals with the lowest prices. And even if hospitals dis-

tribute their losses by overcharging ERISA plans, the plans would

el

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43a

have an alternative: they would normally be free to negotiate with

various hospitals for group rates just as some groups under the Act

are able to negotiate lower rates (the difference of which ERISA

funds have been forced to defray). Under the Act, however, the

plans are in effect precluded from negotiating group rates because,

as the State concedes, the Act takes away any incentive to negotiate

when it prohibits hospitals from passing on to other patients any

revenue shortfall caused by a digression from the DRG rates. But

see Majority typescript at 29-30 (“Nor does [the Act] deprive

ERISA plans of any alternative they would otherwise have in these

areas.”’),

Moreover, in both market-based and regulated systems, busi-

nesses generally pass losses to all customers. Here, the object of

the Act is to pass hospital losses inequitably to a small segment of

hospital consumers. The surcharges are neither paid by the State

nor the public at large; they are not even paid by all hospital users.

The State created these surcharges with the specific intention that,

in essence, only a small group of the hospital users — a large ma-

jority of whom comprise ERISA beneficiaries — would pay for

them. While the plans do not derive any benefit, real or abstract,

from the surcharges, the Act takes a substantial chunk of money

belonging to ERISA beneficiaries, and all because New Jersey does

not want to expend its general funds to pay for the health care costs

of others who are less fortunate. As one affidavit summarized: “In

effect, New Jersey requires the hospitals to give the service but will

pay for it using other people’s money, i.¢., other users of the hospi-

tals rather than a broader base revenue source such as general

taxation.”

Thus, the surcharges here are anything but “ordinary” overhead

costs that indirectly increase the cost of doing business, and the ar-

gument that the Act simply sets prices does not sufficiently credit

the direct financial impact on ERISA plans. The majority is correct

insofar as states may regulate, for example, the disposal of medical

waste and allow hospitals to pass these costs off to patients; but if

States require hospitals to pass off these costs only or largely to

“commercial insurers and self-funded union plans,” such regula-

tions must be preempted.

V.

I fear that the majority gives States free reign to spend and exper-

iment with ERISA funds, held in trust for the many workers who

OOOO oooooorroeEeEeEeEeEeEeEeEeEeEeEeEe—uG0Gy707—”e_e.

|

44a

have labored long for their security, in the noble pursuit of health

care reforms so long as States exercise a minimum degree of imagi-

nation by couching their statutes in “generally applicable” terms.

When I consider the financial impact and other causal effect on

ERISA funds in a common sense manner, the connection between

ERISA plans and the Act is not too tenuous, remote or peripheral at

all. The Act refers specifically to ERISA plans, divests enormous

sums of money from ERISA plans, and is predicated on the exis-

tence of ERISA plans. In my opinion the Act “relates to” ERISA

plans when that term is construed in its ordinary and broad mean-

ing, and I dissent.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

45a

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 92-5317/5319/5320/

534 1/5343/5345/5352/5354/5355

UNITED WIRE, METAL AND MACHINE HEALTH AND

WELFARE FUND; JACK STOLL; ESTHER BORJA; JAVIER

RESTREPO; UNITED FOOD AND COMMERCIAL WORKERS

INTERNATIONAL UNION LOCAL 464A, AFL-CIO GROUP

REIMBURSEMENT WELFARE PLAN; FRANK LACATENA;

DOLORES LACATENA; NEW JERSEY CARPENTERS

WELFARE FUND; LOCAL #807 LABOR-MANAGEMENT

HEALTH FUND; TRUSTEES OF THE LOCAL #807 LABOR-

MANAGEMENT HEALTH FUND; PROSPER ALEXANDER:

MARIE ALEXANDER; DISTRICT COUNCIL OF

IRONWORKERS OF NORTHERN NEW JERSEY WELFARE

FUND; ARCHIE G. FERGUSON; RONALD W. JENSEN;

JOHN J. IRVINE; WALTER PHILLIPS; MICHAEL J.

MCDERMOTT; SAMUEL PACICH; ALBERT J. IRWIN;

NICHOLAS J. ANDRETTA, SR.; GARY UGARO; WALTER F.

STEINMETZ; JOHN D. MULVANY; MICHAEL W.

FEATHERSON; FRANCIS E. ARNY; JOHN J. CLARK, SR.;

RONALD W. WILLIAMS; DANIEL J. PEREZ; KEITH E.

ZDEP; EDWARD WEIDLER; LOUIS ROCCO; RAYMOND J.

RODGERS; FRANCIS J. AKESSON; DONALD J. BANTA, SR.;

CHARLES W. BIRD; DAVID F. BROWN; CLIFFORD

CROOKS; ROBERT T. CUSICK; JAMES P. FITZGERALD;

JOSEPH A. FUSARO; CHARLES GAMBA; RICHARD

GOUGEON; JOHN KEATING; GERARD MCCLOUD;

ROBERT MCGEE; ALEXANDER MCLELLAN; JOHN

MURPHY; LAURENCE O’BRIEN; PETER O’CONNER; RAUL

RODRIGUEZ; ROBERT SCHWEITZER; ROBERT SICKLES;

ANDREW L. SMITH; RICHARD SPARKS; GEORGE SUDAK;

EDWARD TEDESCO; JAMES TOAL; ENOCH P. MCMAHON;

LOCAL UNION 400; IBEW WELFARE FUND;

46a

BRIAN HRUSKA; WILLIAM MARSH; CHARLES WORK;

HAROLD RUTLEDGE; RALPH ALLEN; THOMAS VADAS;

VINCENT WORTH; TIMOTHY HILL; RONALD RAMSEY;

JOHN IRELAND; JAMES MARTIN; MICHAEL ALMASI;

BEVERLY A. RUBY; PETER NAMOTKA; DANIEL

KENNEDY; GEORGE COLE; WALTER DAVIES; ROBERT

HERMANN; FRANK HERMANN; CHARLES KELLER;

DENNIS JOHNSON; CONNIE J. KOEHLER; FRANK O’DAY;

VINCENT LA STELLA; DONALD MCNEIL; JEAN-LOUIS

POULIOT; NICHOLAS AEMISEGO; ROBERT STAHNKE;

PHILIP CERZA; GARY GIORGIO; EDWARD OSOWSKI];

GLENN HALVORSEN; WILLIAM STADELMAN; DANIEL

JULIO, JR.; FRANCIS ALEXANDER; LEONARD DAHL;

MICHAEL DEVINE; JOSEPH GEORGE; RALPH JENSEN;

DONALD LA BRUTTO; NORMAN GRAMLICH; JUAN

ROMERO; JOSEPH PIWOSKI; HARRY PEASE, JR.; EUGENE

©’ROURKE; PAUL NIEDZINSKI; BERNARD WALL;

STEPHEN KOJAC; CHARLES KRUPKA; WILLIAM

MCCORMACK; MINOR KENNARD; STEPHEN J. SANGLE;

DONALD SCHIRALDO; JOHN GACINA, III; BRIAN

MCCARTHY; CHARLES MCNALLY; ROBERT CZAJOWSKI;

BRIAN WOODALL; JEFFREY STAHNKE; JOHN RYAN;

RALPH ROSAMILIA, SR.; DANIEL MUGAN; EDWARD

MIRONSKI; MICHAEL MIDDINGS; ANDREW MAHASKY;

WALTER JELINSKY; ALBERT GAECHTER; LOUIS DI

MASCIO; ELLIOTT ROSEMAN; TRUSTEES OF THE

OPERATING ENGINEERS LOCAL 825 WELFARE FUND;

RICHARD HORNECKER; TEAMSTERS LOCAL 11 BENEFIT

PLAN; TRUSTEES OF THE TEAMSTERS LOCAL 11

BENEFIT PLAN; KATLUSKA BAIDAL; WILLIAM BARTEL;

GUNTER BLOHM; ANGELO BUINNO; BETTY J. CAIRNS;

FRANK CLOSE; JOSE CRUZ; SANTOS GARCIA; KAREN

GENSURE; DOROTHY LARSON; RICHARD LITCHFIELD;

SANDRA MARINO; JOHN MATUSZKIEWICZ; GEORGE

MCCLAUGHLIN; OLGA MONTES; FERNANDO PEREZ;

SANTO RAMOS; MARTHA SARA; ROXEEN SCALA;

EDMUND SCOTT; CHARLIE TAYLOR; MELISSA TURI,

SANGPO TSULDIN; COSMO VISENTINI; NYSA-ILA

WELFARE FUND; JOHN BOWERS; ALBERT CERNADAS;

FRANK LONARDO; THOMAS POPOLA; JAMES CAPO;

JOSEPH N. BARBERA; BART DIMATTINA; RICHARD H.

oi

ats

Dovid tisha Pew Rid ale BA eR cat

a ee RN ary ee IN SIs See Meee

Oh IER Ae BELL PRI Be LOL ak” alt Sy an a

OE nae

47a

O’NEILL; LABORERS INTERNATIONAL UNION OF NORTH

AMERICA LOCAL 415 HEALTH AND WELFARE FUND;

SHEET METAL WORKERS LOCAL UNION NO. 25

WELFARE FUND; JEFFREY STAJEK; JAMES LUCIANO;

JOHN A. FREUDENREICH, SR.; THOMAS SMIECH; JOSEPH

MCCALLION; DANIEL SMITH, JR.; JAMES MCKAY; MARK

COX; TRUSTEES OF THE TEAMSTERS LOCAL 641

WELFARE FUND; CARLOS ROCHA; GEORGE KOESTER;

CARMELA FERENS; KHOONRAJIE RAGHUBANS; PHILLIP

SAVITTIERI; EAR PATTERSON; ROBERT REEDER; LOCAL

1245, LOCAL 1245 HEALTH FUND; ANTHONY RIZZO;

JOSEPH ABBATE; JOSEPH MASSOUD; RALPH

MASTRANGELO; TRUSTEES OF THE WELFARE TRUST

FUND, LOCAL UNION NO. 475; WILLIE A. BARNES;

HERMAN GEIGER; VINSTON LEE KING; KEVIN E. KLINE;

ROBERT L. ROSA; WILLIAM BRENNAN; JAMES MURPHY,

JR.; PATRICIA MCELLIGOTT; KEVIN MCCORMICK;

PATRICK RYAN, JR.; ANTHONY E. SMITH; ROBERT

LAVERATT; JOHN S. WITTEK; JOHN MCQUILKEN; JOHN

MONTESANO; ROY E. FRANK; JOHN O’NEILL, JR.; FRANK

ROBINSON; DALE SCHAEFER; JOHN J. SERRA; DONALD

SHERIDAN; WENCESLAO SOTO; MICHAEL J. RUSSO;

JOSEPH P. MURPHY, JR.; CALVIN R. SUTTON, III;

RONALD J. ZAKARZEWSKI; FRANK WHITNEY, SR.; JACK

NACHTIGALL; LAWRENCE PARKIN; EDISON RODRIQUEZ;

WILLIAM MORAN; VINCENT DOFFONT; GEORGE STOUT;

BRIAN LUBECK; AMERICO GUGLIELMO; DAVID VADAS;

CHRISTOPHER ANDREWSKI; DAVID JENKINS; ARTHUR

ACKERMAN; KENNETH FINTON; RAMON LORENZO;

WESLEY SANDERSON; CHARLES NEWMAN, III;

LEONARD IAROSSI; GEORGE ROSSI; WILLIAM

SKIECZIUS; JOHN HANCOCK; EDWARD THORNE; JOSEPH

TAGLIADIA; MICHAEL MACHANSKA; STEVE PARLACASK

Vv,

MORRISTOWN MEMORIAL HOSPITAL; FRANCES J.

DUNSTON; NEW JERSEY COMMISSIONER OF HEALTH;

NEW JERSEY STATE DEPARTMENT OF HEALTH; NEW

JERSEY HOSPITAL RATE SETTING COMMISSION; NEW

JERSEY COMMISSIONER OF HEALTH; FRANCES

DUNSTON; MEMORIAL HOSPITAL OF BURLINGTON

COUNTY; THE MEDICAL CENTER OF OCEAN COUNTY;

48a

KIMBALL MEDICAL CENTER; MERCER MEDICAL

CENTER; OUR LADY OF LOURDES HOSPITAL;

PRINCETON MEDICAL CENTER; HOSPITAL OF SALEM

COUNTY; NEWCOMB MEDICAL CENTER; RIVERVIEW

MEDICAL CENTER; COMMUNITY MEDICAL CENTER;

SHORE MEMORIAL HOSPITAL; BURDETTE TOMLIN

MEMORIAL HOSPITAL; CHRIST HOSPITAL; NEWARK

BETH ISRAEL MEDICAL CENTER; ST. JOSEPH’S

HOSPITAL; WAYNE GENERAL HOSPITAL; SOUTH JERSEY

HOSPITAL SYSTEM; COOPER HOSPITAL; WEST JERSEY

HEALTH SYSTEMS; ATLANTIC CITY MEDICAL CENTER;

UNION MEMORIAL HOSPITAL; ELIZABETH GENERAL

HOSPITAL; ENGLEWOOD HOSPITAL; ROBERT WOOD

JOHNSON UNIVERSITY HOSPITAL; BARNERT MEMORIAL

HOSPITAL; PASSAIC GENERAL HOSPITAL; RAHWAY

HOSPITAL; VALLEY HOSPITAL; HOLY NAME HOSPITAL;

ST. PETER’S MEDICAL CENTER; SOMERSET MEDICAL

CENTER; OVERLOOK HOSPITAL; ST. ELIZABETH

HOSPITAL; DOVER GENERAL MEDICAL CENTER;

HUNTERDON MEDICAL CENTER; CHILTON MEMORIAL

HOSPITAL; KESSLER MEMORIAL HOSPITAL; FREEHOLD

AREA HOSP.; KENNEDY MEMORIAL HOSPITAL;

UNIVERSITY HOSPITAL; UNDERWOOD MEMORIAL

HOSPITAL; JERSEY CITY MEDICAL CENTER; ST.

JOSEPH’S HOSPITAL; ST. BARNABAS MEDICAL CENTER;

RARITAN BAY MEDICAL CENTER; CLARA MAASS

MEDICAL CENTER; ST. CLARES/RIVERSIDE MEDICAL

CENTER; JOHN F. KENNEDY MEDICAL CENTER;

HACKETTSTOWN COMMUNITY HOSPITAL; ZURBRUGG

MEMORIAL HOSPITAL; JERSEY SHORE MEDICAL

CENTER; MONMOUTH MEDICAL CTR; NEWTON

MEMORIAL HOSPITAL; UNIVERSITY OF MEDICINE &

DENTISTRY OF NEW JERSEY; DEBORAH HEART AND

LUNG CENTER; HOSPITAL CENTER AT ORANGE; DOVER

GENERAL HOSPITAL; WEST JERSEY HEALTH SYSTEM;

RARITAN BAY MEDICAL CENTER; HACKENSACK

MEDICAL CENTER; SOUTH AMBOY MEMORIAL

HOSPITAL; THE MOUNTAINSIDE HOSPITAL; ST. FRANCIS

HOSPITAL; BAYONNE HOSPITAL; MUHLENBERG

HOSPITAL; CENTRASTATE (FAH) HOSPITAL, ST. JAMES

HOSPITAL; KENNEDY MEMORIAL HOSPITAL AT SADDLE

ee

49a

BROOK; ADMINISTRATOR OF THE NEW JERSEY HEALTH

CARE TRUST FUND; NEW JERSEY DEPARTMENT OF

HUMAN SERVICES (DIVISION) OF MEDICAL ASSISTANCE

AND HEALTH SERVICES; ELIZABETH GENERAL

MEDICAL CENTER; DOVER GENERAL MEDICAL CENTER;

IRVINGTON GENERAL HOSPITAL; UNION HOSPITAL;

WARREN HOSPITAL, COLUMBUS HOSPITAL; EAST

ORANGE GENERAL HOSPITAL, FRANCIS DUBEAU;

LILLIAN DUBEAU; BAYSHORE COMMUNITY HOSPITAL;

NEW JERSEY HOSPITAL ASSOCIATION; BERGEN PINES

COUNTY HOSPITAL; COMMUNITY MEMORIAL

HOSPITAL; GREENVILLE HOSPITAL; MONTCLAIR

COMMUNITY (HOSPITAL) PALISADES GENERAL

HOSPITAL; PASSAIC BETH ISRAEL HOSPITAL; RARITAN

BAY MEDICAL CENTER/PERTH AMBOY DIVISION;

RIVERVIEW MEDICAL CENTER; SOUTHERN OCEAN

COUNTY HOSPITAL; ST. MARY’S HOSPITAL; THE

GENERAL HOSPITAL CENTER AT PASSAIC; WALLKILL

VALLEY HOSPITAL AND HEALTH CENTERS; ST. MARY’S

HOSPITAL (PASSAIC); UNITED HOSPITAL; PASCACK

VALLEY HOSPITAL; WEST HUDSON HOSPITAL; JOHNSON

UNIVERSITY HOSPITAL; ADMINISTRATOR OF THE NEW

JERSEY HEALTH CARE TRUST FUND; NEW JERSEY

DEPARTMENT OF HUMAN SERVICES DIVISION OF

MEDICAL ASSISTANCE AND HEALTH SERVICES; NEW

JERSEY HOSPITAL; NEW JERSEY HOSPITAL

ASSOCIATION,

Intervenor-Defendants

(Newark New Jersey District Consolidated Lead Civil

No. 90-02639)

UNITED WIRE, METAL AND MACHINE HEALTH AND

WELFARE FUND; ESTHER BORJA

Vv.

ST. MARY’S HOSPITAL HOSPITAL; NEW JERSEY

COMMISSIONER OF HEALTH; NEW JERSEY STATE

DEPARTMENT OF HEALTH; NEW JERSEY HOSPITAL RATE

SETTING COMMISSION; FRANCES J. DUNSTON;

50a

(Newark New Jersey District Civil No. 90-03640)

UNITED WIRE, METAL AND MACHINE HEALTH AND

WELFARE FUND; JAVIER RESTREPO

V.

ST. JOSEPH’S HOSPITAL AND MEDICAL CENTER;

FRANCES J. DUNSTON, in her capacity as New Jersey

Commissioner of Health; NEW JERSEY STATE DEPARTMENT

OF HEALTH; NEW JERSEY HOSPITAL RATE SETTING

COMMISSION

(Newark New Jersey District Civil No. 91-00073)

UNITED FOOD AND COMMERCIAL WORKERS

INTERNATIONAL UNION, LOCAL 464A, AFL-CIO GROUP

REIMBURSEMENT WELFARE PLAN; FRANK LACATENA;

DOLORES LACATENA

Vv.

WAYNE GENERAL HOSPITAL; FRANCES J. DUNSTON;

NEW JERSEY COMMISSIONER OF HEALTH; NEW JERSEY

STATE DEPARTMENT OF HEALTH; NEW JERSEY

HOSPITAL RATE SETTING COMMISSION

(Newark New Jersey District Civil No. 91-00336)

DISTRICT COUNCIL OF IRONWORKERS OF NORTHERN

NEW JERSEY WELFARE FUND; ARCHIE G. FERGUSON;

RONALD W. JENSEN; JOHN J. IRVINE, WALTER PHILLIPS;

MICHAEL J. MCDERMOTT; SAMUEL PACICH; ALBERT J.

IRWIN, NICHOLAS J. ANDRETTA, SR.; GARY UGARO;

WALTER F. STEINMETZ; JOHN D. MULVANEY; MICHAEL

W. FEATHERSON; FRANCIS E. ARNY; JOHN J. CLARK,

SR.; RONALD W. WILLIAMS; DANIEL J. PEREZ; KEITH E.

ZDEP; EDWARD WEIDLER; LOUIS ROCCO; RAYMOND J.

RODGERS; FRANCIS J. AKESSON; DONALD J. BANTA, SR;

CHARLES W. BIRD; DAVID BROWN; CLIFFORD CROOKS;

ROBERT T. CUSICK; JAMES P. FITZGERALD; JOSEPH A.

FUSARO; CHARLES GAMBA; RICHARD GOUGEON; JOHN

KEATING; GERARD MCCLOUD; ROBERT MCGEE;

ALEXANDER MCLELLAN; JOHN MURPHY; LAURENCE

O’BRIEN; PETER O’CONNER; RAUL RODRIGUEZ; ROBERT

SCHWEITZER; ROBERT SICKLES; ANDREW L. SMITH;

Sla

RICHARD SPARKS; GEORGE SUDAK; EDWARD TEDESCO;

JAMES TOAL; ENOCH P. MCMAHAN

v.

FRANCES J. DUNSTON, in her capacity as New Jersey

Commissioner of Health; NEW JERSEY STATE DEPARTMENT

OF HEALTH; NEW JERSEY HOSPITAL RATE SETTING

COMMISSION; DEBORAH HEART AND LUNG CENTER;

HUNTERDON MEDICAL CENTER; ST. FRANCIS

HOSPITAL; HOSPITAL CENTER AT ORANGE; ST. PETERS

MEDICAL CENTER; ST. CLARES/RIVERSIDE MEDICAL

CENTER; JOHN F. KENNEDY MEDICAL CENTER; DOVER

GENERAL HOSPITAL; ST. BARNABAS MEDICAL CENTER;

VALLEY HOSPITAL; OVERLOOK HOSPITAL; RAHWAY

HOSPITAL; NEWTON MEMORIAL HOSPITAL; WEST

JERSEY HEALTH SYSTEM; RARITAN BAY MEDICAL

CENTER; HACKENSACK MEDICAL CENTER; CLARA

MAASS MEDICAL CENTER; HOLY NAME HOSPITAL;

NEWARK BETH ISRAEL MEDICAL CENTER; BAYONNE

HOSPITAL; CHILTON MEMORIAL HOSPITAL; ST.

JOSEPH’S HOSPITAL; MUHLENBERG HOSPITAL;

COMMUNITY MED CENTER; CHRIST HOSPITAL; SOUTH

AMBOY MEMORIAL HOSPITAL; CENTRASTATE (FAH)

HOSPITAL; WAYNE GENERAL HOSPITAL; PRINCETON

MEDICAL CENTER; ST. JAMES HOSPITAL,a/k/a

CATHEDRAL HEALTH SERVICES, INC.; MOUNTAINSIDE

HOSPITAL; PASSAIC GENERAL HOSPITAL; NEW JERSEY

HOSPITAL ASSOCIATION

Intervenor/Defendant

(Newark New Jersey District Civil No. 91-02190) _

NEW JERSEY CARPENTERS WELFARE FUND

v.

FRANCES J. DUNSTON, in her capacity as New Jersey

Commissioner of Health; NEW JERSEY STATE DEPARTMENT

OF HEALTH; NEW JERSEY HOSPITAL RATE SETTING

COMMISSION; SOUTH JERSEY HOSPITAL SYSTEM:

COOPER HOSPITAL; WEST JERSEY HEALTH SYSTEMS;

ATLANTIC CITY MEDICAL CENTER; MEMORIAL

HOSPITAL OF BURLINGTON COUNTY; THE MEDICAL

CENTER OF OCEAN COUNTY; KIMBALL MEDICAL

CENTER; MERCER MEDICAL CENTER; OUR LADY OF

52a

LOURDES; PRINCETON MEDICAL CENTER; HOSPITAL OF

SALEM COUNTY; NEWCOMB MEDICAL CENTER;

RIVERVIEW MEDICAL CENTER; COMMUNITY MEDICAL 7

CENTER; SHORE MEMORIAL HOSPITAL; BURDETTE |

TOMLIN MEMORIAL; CHRIST HOSPITAL; MORRISTOWN

MEMORIAL HOSPITAL; NEWARK BETH ISRAEL MEDICAL

CENTER; WAYNE GENERAL HOSPITAL; UNION

MEMORIAL HOSPITAL; ELIZABETH GENERAL HOSPITAL;

ENGLEWOOD HOSPITAL, ROBERT WOOD JOHNSON

UNIVERSITY HOSPITAL; BARNERT MEMORIAL

HOSPITAL; PASSAIC GENERAL HOSPITAL; RAHWAY

HOSPITAL; THE VALLEY HOSPITAL; HOLY NAME

HOSPITAL; ST. PETER’S MEDICAL CENTER; SOMERSET

MEDICAL CENTER; OVERLOOK HOSPITAL; ST.

ELIZABETH HOSPITAL; DOVER GENERAL

MEDICAL CENTER; HUNTERDON MEDICAL CENTER;

CHILTON MEMORIAL HOSPITAL; KESSLER MEMORIAL

HOSPITAL; FREEHOLD AREA HOSPITAL; KENNEDY

MEMORIAL HOSPITAL; UNIVERSITY HOSPITAL;

UNDERWOOD MEMORIAL HOSPITAL; JERSEY CITY

MEDICAL CENTER; ST. JOSEPH’S HOSPITAL; ST.

BARNABAS MEDICAL CENTER; RARITAN BAY MEDICAL

CENTER; CLARA MAASS MEDICAL CENTER; ST.

CLARE’S/RIVERSIDE MEDICAL CENTER; JOHN F.

KENNEDY MEDICAL CENTER; HACKETTSTOWN

COMMUNITY HOSPITAL; ZURBRUGG MEMORIAL

HOSPITAL; JERSEY SHORE MEDICAL CENTER;

MONMOUTH MEDICAL CENTER; NEWTON MEMORIAL

HOSPITAL; NEW JERSEY HOSPITAL, NEW JERSEY

HOSPITAL ASSOCIATION

Intervenor/Defendant

(Newark New Jersey District Civil No. 91-03280)

LOCAL #807 LABOR-MANAGEMENT HEALTH FUND;

TRUSTEES OF THE LOCAL #807 L.sBOR-MANAGEMENT

HEALTH FUND; PROSPER ALEXANDER; MARIE

ALEXANDER

Vv.

UNIVERSITY HOSPITAL; UNIVERSITY OF MEDICINE &

DENTISTRY OF NEW JERSEY; FRANCES J. DUNSTON, in

53a

her capacity as New Jersey Commissioner of Health; NEW

JERSEY STATE DEPARTMENT OF HEALTH; NEW JERSEY

HOSPITAL RATE SETTING COMMISSION

(Newark New Jersey District Civil No. 91-03286)

LOCAL UNION 400, IBEW WELFARE FUND; BRIAN

HRUSKA; WILLIAM MARSH; CHARLES WORK; HAROLD

RUTLEDGE; RALPH ALLEN; THOMAS VADAS; VINCENT

WORTH; TIMOTHY HILL, RONALD RAMSEY; JOHN

IRELAND; JAMES MARTIN

v.

FRANCES J. DUNSTON, in her capacity as New Jersey

Commissioner of Health; NEW JERSEY STATE DEPARTMENT

OF HEALTH; NEW JERSEY HOSPITAL RATE SETTING

COMMISSION; THE MEDICAL CENTER OF OCEAN

COUNTY; RIVERVIEW MEDICAL CENTER; COMMUNITY

MEDICAL CENTER; JERSEY SHORE MEDICAL CENTER;

KIMBALL MEDICAL CENTER; MONMOUTH MEDICAL

CENTER NEW JERSEY HOSPITAL ASSOCIATION

Intervenor/Defendant

(Newark New Jersey District Civil No. 91-03897)

OVERLOOK HOSPITAL

v.

FRANCES DUBEAU; LILLIAN DUBEAU

(Newark New Jersey District Civil No. 91-03910)

LABORERS INTERNATIONAL UNION OF NORTH

AMERICA LOCAL 415 HEALTH AND WELFARE FUND

Vv.

FRANCES J. DUNSTON. in her capacity as New Jersey

Commissioner of Health; NEW JERSEY STATE DEPARTMENT

OF HEALTH; NEW JERSEY HOSPITAL RATE SETTING

COMMISSION

(Newark New Jersey District Civil No. 91-04078)

NYSA-ILA WELFARE FUND, by its Trustees; JOHN BOWERS,

Trustee; ALBERT CERNADAS, Trustee; FRANK LONARDO,

Trustee; THOMAS POPOLA, Trustee; JAMES CAPO, Trustee;

S4a

JOSEPH N. BARBERA, Trustee; BART DIMATTINA, Trustee;

RICHARD H. O’NEILL, Trustee

v.

FRANCES J. DUNSTON, in her capacity as New Jersey

Commissioner of Health; NEW JERSEY STATE DEPARTMENT

OF HEALTH; NEW JERSEY HOSPITAL RATE SETTING

COMMISSION; COLUMBUS HOSPITAL; EAST ORANGE

GENERAL HOSPITAL ST. JAMES HOSPITAL; UNIVERSITY

HOSPITAL, Individually and as Class Representatives of

Hospitals in the State of New Jersey; NEW JERSEY HOSPITAL

ASSOCIATION,

as Class representative of Hospital in the State of New Jersey

(Newark New Jersey District Civil No. 91-04259)

SHEET METAL WORKERS LOCAL UNION NO. 25

WELFARE FUND; JEFFREY STAJEK; JAMES LUCIANQ;

JOHN A. FREUDENREICH, SR.; THOMAS SMIECH; JOSEPH

MCCALLION; DANIEL SMITH, JR.; JAMES MCKAY;

MARK COX

v.

FRANCES J. DUNSTON, in her capacity of New Jersey

Commissioner of Health; NEW JERSEY STATE DEPARTMENT

OF HEALTH; NEW JERSEY HOSPITAL RATE SETTING

COMMISSION; ADMINISTRATOR OF THE NEW JERSEY

HEALTH CARE TRUST FUND; NEW JERSEY DEPARTMENT

OF HUMAN SERVICES (DIVISION) OF MEDICAL

ASSISTANCE AND HEALTH SERVICES; NEW JERSEY

HOSPITAL ASSOCIATION; ST. BARNABAS MEDICAL

CENTER; HOLY NAME HOSPITAL; HACKENSACK

MEDICAL CENTER; WEST HUDSON HOSPITAL;

OVERLOOK HOSPITAL; JOHN F. KENNEDY MEDICAL

CENTER; HUNTERDON MEDICAL CENTER; MORRISTOWN

MEMORIAL HOSPITAL; IRVINGTON GENERAL HOSPITAL;

CLARA MAASS MEDICAL CENTER

(Newark New Jersey District Civil No. 91-04700)

TRUSTEES OF THE OPERATING ENGINEERS LOCAL 825

WELFARE FUND; RICHARD HORNECKER

V.

FRANCES J. DUNSTON, in her capacity as New Jersey

Commissioner of Health; NEW JERSEY STATE DEPARTMENT

- ee ee ae ee ae

55a

OF HEALTH; NEW JERSEY HOSPITAL RATE SETTING

COMMISSION; ADMINISTRATOR OF THE NEW JERSEY

HEALTH CARE TRUST FUND, NEW JERSEY DEPARTMENT

OF HUMAN SERVICES, DIVISION OF MEDICAL

ASSISTANCE AND HEALTH SERVICES

(Newark New Jersey District Civil No. 91-05362)

TEAMSTERS LOCAL 11 BENEFIT FUND; TRUSTEES OF

THE TEAMSTERS LOCAL 11 BENEFIT PLAN; KATLUSKA

BAIDAL; WILLIAM BARTELL; GUNTER BLOHM; ANGELO

BUINNO; BETTY J. CAIRNS; FRANK CLOSE; JOSE CRUZ;

SANTOS GARCIA; KAREN GENSURE; DOROTHY LARSON;

RICHARD LITCHFIELD; SANDRA MARINO; JOHN

MATUSZKIEWICZ; GEORGE MCCLAUGHLIN; OLGA

MONTES; FERNANDO PEREZ; SANTO RAMOS: MARTHA

SARA; ROXEEN SCALA; EDMUND SCOTT: CHARLIE

TAYLOR; MELISSA TURI; SANGPO TSULDIN; COSMO

VISENTINI

V.

BAYSHORE COMMUNITY HOSPITAL; CHILTON

MEMORIAL HOSPITAL; CLARA MAASS MEDICAL

CENTER; DOVER GENERAL HOSPITAL; ELIZABETH

GENERAL MEDICAL CENTER; ENGLEWOOD HOSPITAL;

HOLY NAME HOSPITAL; IRVINGTON GENERAL

HOSPITAL; JERSEY CITY MEDICAL CENTER; PASSAIC

GENERAL HOSPITAL; ST. FRANCIS HOSPITAL; ST.

PETER’S MEDICAL CENTER; SOMERSET MEDICAL

CENTER; UNION HOSPITAL; UNITED HOSPITAL;

UNIVERSITY HOSPITAL; VALLEY HOSPITAL; WARREN

HOSPITAL; FRANCES J. DUNSTON, in her Capacity as New

Jersey Commissioner of Health; NEW JERSEY STATE

DEPARTMENT OF HEALTH; NEW JERSEY HOSPITAL RATE

SETTING COMMISSION

(Newark New Jersey District Civil No. 92-00085)

TRUSTEES OF THE WELFARE TRUST FUND, LOCAL

UNION NO. 475; WILLIE A. BARNES; HERMAN GEIGER;

VINSTON LEE KING; KEVIN E. KLINE; ROBERT L. ROSA;

WILLIAM BRENNAN; JAMES MURPHY, JR.; PATRICIA

MCELLIGOTT; KEVIN MCCORMICK; PATRICK RYAN, JR.;

56a

ANTHONY E. SMITH; ROBERT LAVERATT; JOHN S.

WITTEK; JOHN MCQUILKEN; JOHN MONTESANO; ROY E.

FRANK; JOHN O’NEILL, JR.; FRANK ROBINSON; DALE

SCHAEFER; JOHN J. SERRA; DONALD SHERIDAN;

WENCESLAO SOTO; MICHAEL J. RUSSO; JOSEPH P.

MURPHY, JR.; CALVIN R. SUTTON, III; RONALD J.

ZAKARZEWSKI; FRANK WHITNEY, SR.; JACK

NACHTIGALL; LAWRENCE PARKIN; EDISON RODRIGUEZ;

WILLIAM MORAN; VINCENT DOFFONT

Vv.

FRANCES J. DUNSTON, in her capacity as New Jersey

Commissioner of Health; NEW JERSEY STATE DEPARTMENT

OF HEALTH; NEW JERSEY HOSPITAL RATE SETTING

COMMISSION; ADMINISTRATOR OF THE NEW JERSEY

HEALTH CARE TRUST FUND; NEW JERSEY DEPARTMENT

OF HUMAN SERVICES, DIVISION OF MEDICAL

ASSISTANCE AND HEALTH SERVICES; WEST HUDSON

HOSPITAL; UNIVERSITY OF MEDICINE & DENTISTRY;

OVERLOOK HOSPITAL; MORRISTOWN MEMORIAL

HOSPITAL; UNION HOSPITAL; RIVERVIEW MEDICAL

CENTER; NORTHERN OCEAN HOSPITAL SYSTEM;

COMMUNITY MEDICAL CENTER; HOSPITAL CENTER AT

ORANGE; HUNTERDON MEDICAL CENTER; WARREN

HOSPITAL; CENTRASTATE MEDICAL CENTER;

SOMERSET MEDICAL CENTER; ROBERT WOOD JOHNSON

UNIVERSITY; THE MEDICAL CENTER OF OCEAN

COUNTY; JERSEY SHORE MEDICAL CENTER;

COLUMBUS HOSPITAL; JOHN F. KENNEDY MEDICAL

CENTER; CLARA MAASS MEDICAL CENTER

(Newark New Jersey District Civil No. 92-00426)

TEAMSTERS LOCAL 641 WELFARE FUND; CARLOS

ROCHA; GEORGE KOESTER; CARMELA FERENS;

KHOONRAJIE RAGHUBANS; PHILLIP SAVITTIERI; EARL

PATTERSON; ROBERT REEDER

v.

FRANCES J. DUNSTON, in her capacity as New Jersey

Commissioner of Health; NEW JERSEY STATE DEPARTMENT

OF HEALTH; NEW JERSEY HOSPITAL RATE SETTING

COMMISSION; MEDICAL CENTER OF OCEAN COUNTY;

ST. BARNABAS MEDICAL CENTER; CLARA MAASS

57a

MEDICAL CENTER; ST. ELIZABETH HOSPITAL; PASSAIC

GENERAL HOSPITAL

(Newark New Jersey District Civil No. 92-00526)

LOCAL 1245 HEALTH FUND; LOCAL 1245 BAKERY AND

SPECIALTY HEALTH FUND; JAMES ARBOLINO;

ANTHONY ROCCO; HAROLD POLSKY; NEVIO MANCIINI;

WILLIE SCONIERS; IRENE HICKEY; KATHLEEN

RODRIGUEZ; WILLIAM CLACK WORTHY; EDWARD

NELSON; PATRICIA CONRAD; RONALD COZZO; HOLLY

ANN CULBERT; JOACHIM SCHAFFRANIETZ; HUBERT

CHASE; ROBERT BAUMAN; RUSSELL SCHWARTZ; JEAN

JACQUES KERVAN; ARTHUR BEYER

Vv.

FRANCES J. DUNSTON, in her capacity as New Jersey

Commissioner of Health; NEW JERSEY STATE DEPARTMENT

OF HEALTH; NEW JERSEY HOSPITAL RATE SETTING

COMMISSION; DOVER GENERAL HOSPITAL; THE

MEDICAL CENTER OF OCEAN COUNTY; SAINT

BARNABAS MEDICAL CENTER; UNION HOSPITAL; JOHN

F. KENNEDY MEDICAL CENTER; ENGLEWOOD

HOSPITAL; MORRISTOWN MEMORIAL HOSPITAL;

CENTRASTATE; SAINT PETER’S MEDICAL CENTER;

SAINT MARY’S HOSPITAL; MEADOWLANDS HOSPITAL

AND MEDICAL CENTER; JERSEY SHORE MEDICAL

CENTER; KENNEDY MEMORIAL HOSPITAL; PASSAIC

GENERAL HOSPITAL

(Newark New Jersey District Civil No. 92-00728)

ANTHONY RIZZO; JOSEPH ABBATE; JOSEPH MASSOUD;

RALPH MASTRANGELO, as Trustees of the Local 945, I.B.T.

Welfare Fund

Vv.

BARNERT MEMORIAL HOSPITAL CENTER; BAYONNE

HOSPITAL; BAYSHORE COMMUNITY HOSPITAL; BERGEN

PINES COUNTY HOSPITAL; CENTRASTATE MEDICAL

CENTER; CHILTON MEMORIAL HOSPITAL; CHRIST

HOSPITAL; CLARA MAASS MEDICAL CENTER;

COLUMBUS HOSPITAL; COMMUNITY MEMORIAL

HOSPITAL; DOVER GENERAL HOSPITAL & MEDICAL

58a

CENTER; ELIZABETH GENERAL MEDICAL CENTER;

GREENVILLE HOSPITAL; HACKETTSTOWN COMMUNITY

HOSPITAL, HOLY NAME HOSPITAL; IRVINGTON

GENERAL HOSPITAL; JERSEY SHORE MEDICAL CENTER;

JOHN F. KENNEDY MEDICAL CENTER; KENNEDY

MEMORIAL HOSPITALS AT SADDLE BROOK; KIMBALL

MEDICAL CENTER; MERCER MEDICAL CENTER;

MONTCLAIR COMMUNITY (HOSPITAL); MORRISTOWN

MEMORIAL HOSPITAL; NEWTON MEMORIAL HOSPITAL;

OVERLOOK HOSPITAL; PALISADES GENERAL HOSPITAL,

PASCACK VALLEY HOSPITAL; PASSAIC BETH ISRAEL

HOSPITAL; RAHWAY HOSPITAL; RARITAN BAY MEDICAL

CENTER/PERTH AMBOY DIVISION; RIVERVIEW MEDICAL

CENTER; ROBERT WOOD JOHNSON UNIVERSITY

HOSPITAL; SOUTHERN OCEAN COUNTY HOSPITAL; ST.

MARY’S HOSPITAL (PASSAIC); ST. JOSEPH’S HOSPITAL &

MEDICAL CENTER; ST. FRANCIS MEDICAL CENTER; ST.

ELIZABETH HOSPITAL; ST. PETER’S MEDICAL CENTER;

THE GENERAL HOSPITAL CENTER AT PASSAIC; UNION

HOSPITAL; UNIVERSITY HOSPITAL; UNIVERSITY OF

MEDICINE & DENTISTRY OF NEW JERSEY; VALLEY

HOSPITAL; WALLKILL VALLEY HOSPITAL AND HEALTH

CENTERS; WARREN HOSPITAL; WAYNE GENERAL

HOSPITAL; FRANCES J. DUNSTON, in her capacity as New

Jersey Commissioner of Health; NEW JERSEY STATE

DEPARTMENT OF HEALTH; NEW JERSEY HOSPITAL RATE

SETTING COMMISSION

(Newark New Jersey District Civil No. 92-00849)

NEWCOMB MEDICAL CENTER

v.

JENNIS CARPENTER; ALICE CARPENTER, his wife, jointly,

severally and in the alternative

Defendants/Third Party

Plaintiffs

v.

FRANCES J. DUNSTON; NEW JERSEY STATE

DEPARTMENT OF HEALTH; NEW JERSEY HOSPITAL RATE

SETTING COMMISSION; ADMINISTRATOR OF THE NEW

JERSEY HEALTH CARE TRUST FUND; NEW JERSEY

DEPARTMENT OF HUMAN SERVICES, DIVISION OF

59a

MEDICAL ASSISTANCE AND HEALTH SERVICES

Third Party Defendants

(Newark New Jersey District Civil No. 92-01282)

NEWCOMB MEDICAL CENTER

V.

SHANA TRIPP; CHARLES TRIPP, jointly, severally and in the

alternative

Defendants/Third Party

Plaintiffs

v.

NEW JERSEY STATE DEPARTMENT OF HEALTH; NEW

JERSEY HOSPITAL RATE SETTING COMMISSION;

ADMINISTRATOR OF THE NEW JERSEY HEALTH CARE

TRUST FUND; NEW JERSEY DEPARTMENT OF HUMAN

SERVICES, DIVISION OF MEDICAL ASSISTANCE AND

HEALTH SERVICES; FRANCES J. DUNSTON, in her capacity

as New Jersey Commissioner of Health

Third Party Defendants

(Newark New Jerseys District Civil No. 92-01454)

NEWCOMB MEDICAL CENTER

v.

FRED KUEKEN

Defendant/Third Party

Plaintiff

v.

FRANCES J. DUNSTON; NEW JERSEY STATE

DEPARTMENT OF HEALTH; NEW JERSEY HOSPITAL RATE

SETTING COMMISSION; ADMINISTRATOR OF THE NEW

JERSEY HEALTH CARE TRUST FUND; NEW JERSEY

DEPARTMENT OF HUMAN SERVICES, DIVISION OF

MEDICAL ASSISTANCE AND HEALTH SERVICES

Third Party Defendants

(Newark New Jersey District Civil No. 92-01455)

New Jersey Hospital Association; Bayshore Community Hospital;

Monmouth Medical Center; Pascack Valley Hospital; Riverview

Medical Center; Kennedy Memorial Hospitals at Saddle Brook,

Inc.; William B. Kessler Memorial Hospital; St. Francis Hospital;

60a

South Jersey Hospital System; Helene Fuld Medical Center;

Newton Memorial Hospital; The Medical Center of Ocean

County; Bayonne Hospital; Kennedy Memorial Hospitals-

University Medical Center; South Amboy Memonial Hospital;

Underwood Memorial Hospital; Muhlenberg Regional Medical

Center; Englewood Hospital; Zurbrugg Memorial Hospital; St.

Mary Hospital; Community Medical Center; Hunterdon Medical

Center; St. Michael’s Medical Center; The Mercer Medical

Center; St. Peter’s Medical Center; Jersey Shore Medical Center;

Irvington General Hospital; John F. Kennedy Hospital; Our Lady

of Lourdes Medical Center; Overlook Hospital; Raritan Bay

Medical Center; St. Elizabeth Hospital; Wayne General Hospital;

Barnert Hospital; Atlantic City Medical Center; Dover General

Hospital & Medical Center; Holy Name Hospital; The Hospital at

Orange; St. Clare’s/Riverside Medical Center; Clara Maas

Medical Center; Deborah Heart & Lung Center; Rahway

Hospital; West Jersey Health System; Hackensack Medical

Center; Newark Beth-Israel Medical Center; St. James Hospital;

St. Joseph’s Hospital & Medical Center; Christ Hospital; Chilton

Memorial Hospital; East Orange General Hospital; Columbus

Hospital; Cooper Hospital/University Medical Center; Memorial

Hospital of Burlington County Memorial Health Alliance;

Medical Center at Princeton; St. Joseph’s Hospital; Shore

Memorial Hospital; Robert Wood Johnson University Hospital;

Burdette Tomlin Memorial Hospital; Somerset Medical Center;

Mountainside Hospital; Union Hospital; United Hospitals Medical

Center at Passaic; and Morristown Memorial Hospital,

Appellants

On Appeal From the United States District Court For the

District of New Jersey

(D.C. Civil Action Nos. 90-02639, 90-03640, 91-00073,

91-00336, 91-02190, 91-03280, 91-03286, 91-03897, 91-03910,

91-04078, 91-04259, 91-04700, 91-05362, 92-00085, 92-00426,

92-00526, 92-00728, 92-00849, 92-01282, 92-01454, 92-01455)

|

6la

Present: STAPLETON, SCIRICA, and NYGAARD,

Circuit Judges

JUDGMENT

This cause came to be heard on the record from the United States

District Court for the District of New Jersey and was argued by

counsel September 18, 1992.

On consideration whereof, it is now here ordered and adjudged

by this Court that the judgment of the said District Court entered

May 28, 1992 and amended by order entered June 5, 1992, be, and

the same is hereby reversed. The injunction is vacated and the cause

is remanded to the District Court with instructions that judgment be

entered for the defendants. All of the above in accordance with the

opinion of this Court.

ATTEST:

Acting Chief Deputy Clerk

Dated: May 14, 1993

62a

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 92-5317/5319/5320/534 1/5343/5345/5352/5354/5355

UNITED WIRE, METAL AND MACHINE HEALTH AND

WELFARE FUND, ET AL.

V.

MORRISTOWN MEMORIAL HOSPITAL, ET AL.

SUR PETITION FOR REHEARING

BEFORE: SLOVITER, Chief Judge, BECKER, STAPLETON,

MANSMANN, GREENBERG, SCIRICA, COWEN,

NYGAARD, ALITO, ROTH, and LEWIS,

Circuit Judges

The petition for rehearing filed by appellees The trustees of the

teamsters Local 11 Benefit Plan, Katulska Baidal, et al., New

Jersey Carpenters Welfare Fund, District Council of Iron Workers

of Northern New Jersey Welfare Fund, Local Union 400, IBEW

Welfare Fund, Teamsters Local 641 Welfare Fund, Local 1245

Health Fund, Local 1245 Bakery & Specialty Health Fund, Trustees

of the Welfare Trust Fund Local Union 475, et al., Teamsters Local

11 Benefit Plan, United Wire, Metal and Machine Health and Wel-

fare Fund, Operating Engineers Local 825 Welfare Fund, NYSA-

ILA Welfare Fund and Its Trustees, Local 807 and Trustees of Lo-

cal 807, United Food & Commercial Workers International Union

Local 464A, AFL-CIO Group Reimbursement Welfare Pian, Frank

Lacatena and Dolores Lacatena, Sheet Metal Workers Local Union

No. 25 Welfare Fund, Jeffrey Stajek, et al., Laborers International

Union of North America Local 415 Health & Welfare Fund and the

Hotel Employees and Restaurant Employees Welfare Fund, et al., in

the above-entitled case having been submitted to the judges who

participated in the decision of this Court and to all the other availa-

ble circuit judges of the circuit in regular active service, and no

judge who concurred in the decision having asked for rehearing,

and a majority of the circuit judges of the circuit in regular active

63a

service not having voted for rehearing by the court in banc, the peti-

tion for rehearing is denied. Judge Nygaard would have granted the

petition for rehearing.

By the Court,

/s/

Circuit Judge

Dated: JUNE 15, 1993

64a

United States District Court

FOR THE DISTRICT OF NEW JERSEY

UNITED WIRE, METAL & MACHINE

HEALTH AND WELFARE FUND,

et al.,

Plaintiffs,

MORRISTOWN MEMORIAL

HOSPITAL,

et al.,

Defendants.

Civil Action No.

90-2639

(Consolidated)

OPINION

APPEARANCES:

RONALD E. WISS, ESQ.

DAVID A. SCHRADER, ESQ.

WOLFF & SAMSON

280 Corporate Center

5 Becker Farm Road

Roseland, NJ 07068

and

ALBERT G. KROLL, ESQ.

25 Pompton Avenue, Suite 309

Verona, NJ 07044

and

THOMAS W. GLEASON,

ESQ.

26 Broadway, 17th Floor

New York, NY 10004

and

LOUiS PECHMAN, ESQ.

LAMBOS & GIARDINO

17 Academy Street

Newark, NJ 07102

and

DAVID GROSSMAN, ESQ.

SCHNEIDER, COHEN,

SOLOMON,

LEDER & MONTALBANO

1150 Raritan Road

Cranford, NJ 07016

(Attorneys for Plaintiffs)

BENJAMIN CLARKE, ESQ.

SENIOR DEPUTY

ATTORNEY GENERAL

EILEEN C.STOKLEY, ESQ.

DEPUTY ATTORNEY

GENERAL

OFFICE OF THE ATTORNEY

GENERAL

CN 112

Trenton, NJ 08625

(Attorneys for Defendants)

FRANK CIESLA, ESQ.

ELIZABETH

DUSANIEWSKY/J, ESQ.

GIORDANO, HALLERAN &

CIESLA

270 State Highway 35

Box 190

Middletown, NJ 07748

(Attorneys for Defendant/

Intervenor)

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WOLIN, District Judge

Currently before the Court are defendants’ and plaintiffs’ cross-

motions for summary judgment. Initially, this Court finds that the

Eleventh Amendment does not prevent this Court from deciding

any claims brought against the state agencies and the officials em-

ployed by the State of New Jersey. Likewise, this Court finds that

New Jersey’s hospital rate setting mechanism does not constitute a

tax, and therefore the Tax Injunctive Act does not foreclose this

Court from deciding the issues before it.

This Court will grant defendants’ motions for summary judg-

ment as to plaintiffs’ federal constitutional claims. This Court fur-

ther holds, however, that ERISA pre-empts certain provisions in-

cluded in New Jersey’s scheme for regulating hospital rates and the

regulations promulgated thereunder. Therefore, this Court finds that

New Jersey’s hospital rate setting scheme is unenforceable. Due to

the potential impact of its decision, this Court will stay its Order for

a period of ten days to afford the parties an opportunity to appeal

the Court’s ruling to the Third Circuit Court of Appeals.

I. INTRODUCTION

Several self-insured union employee welfare benefit plans (the

“Benefit Plans”) qualified under the Employee Retirement Security

Act 29 U.S.C. § 1002 et seg., as amended (“ERISA”) and their par-

ticipants (the “individual plaintiffs”) (collectively the “plaintiffs’’),

have brought an action in which they seek a declaration that con-

tained New Jersey’s scheme for setting hospital rates is invalid.'

Plaintiffs argue that this Court must strike down the method New

Jersey utilizes for determining hospital rates on both federal and

state constitutional grounds and because ERISA pre-empts the state

statute.

The gravamen of the complaint focuses on charges included

within the hospital billing procedure which are in excess of a pa-

tient’s “actual hospital costs.” These include: costs of care for the

indigent, charges to pay a hospital’s bad debts, subsidies for the

medicare program, and fees to reimburse hospitals for discounts

given by the hospitals to other types of benefit plans.

' This action was consolidated pursuant to order on January 31, 1992.

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This Court has jurisdiction over plaintiffs’ claims brought under

the United States Constitution, ERISA and the Taft-Hartley Act

pursuant to 28 U.S.C. § 1132. This Court has jurisdiction over

plaintiffs’ causes of action that arise under New Jersey’s Constitu-

tion under the principles of pendent jurisdiction and supplemental

jurisdiction, 28 U.S.C. § 1367.

In the exercise of its discretion, however, this Court declines to

consider the Carpenter’s Union’s claim that this Court should force

the Hospital Defendants to reimburse the charges paid by the Car-

penter’s Union under protest. The Court declines to exercise its

pendent jurisdiction and supplemental jurisdiction over this state

law claim in the interest of comity. The Carpenter’s Union argues

that the fees should be reimbursed because they were paid under

compulsion — the hospital rate setting regulation forces a hospital

to institute collection actions against parties who refuse to pay DRG

rates. The New Jersey State Court’s have never faced this issue.

Moreover, the Hospital Defendants commenced related actions,

which are currently pending in New Jersey, in which they seek re-

imbursement from plaintiffs who failed to pay the contested

charges. In view of the interrelatedness of these actions, this Court

will defer to the New Jersey State Courts.? Venue is proper in this

district under 28 U.S.C. § 1391.

Il. BACKGROUND

In 1971 New Jersey enacted the Health Care Facilities Planning

Act (the “Act”), a hospital rate setting scheme for Blue Cross and

certain federally funded programs such as Medicaid. L. 1971 c.

136 § 18. Rates were based primarily on a hospital’s actual costs

for each patient who participated in the programs encompassed by

the law. In 1978, New Jersey passed a statute that amended the

1971 legislation and, in part, mandated rate setting for all payors.

L. 1978 c. 83 (“Chapter 83”). Chapter 83 contained a dual purpose:

? In their brief in opposition to the hospital defendants motion for summary

judgment, piaintiffs concede that they are not asking this Court to apply its deci-

sion retroactively, but merely seek restitution because they paid the DRG rate

under protest and duress. Accordingly, the issue of when to apply a decision retro-

actively under federal law does not confront this court. Thus, this Court can refuse

to exercise its pendent jurisdiction over plaintiffs restitution claims.

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to “contain the nsing costs of health care services, and to ensure the

financial solvency of hospitals.”

Chapter 83 designed an interconnected regulatory system to em-

brace its purposes. Chapter 83 gave the Commissioner of Health

(the “Commissioner’) responsibility for overall supervision and ad-

ministration of the hospital rates. The Commissioner, in conjunc-

tion with the Health Care Administration Board (the “Board”), pro-

poses the rate schedule and determines, in accordance with the

statute, the types of charges that should be included in hospital

rates. Additionally, the law created the New Jersey Hospital Rate

Setting Commission (the “Commission”). The Commission ap-

proves hospital rates. N.J.S.A. 26:2H-4.1; 26:2H-18.1; 26:2H-18.9;

N.J.A.C. 8:31B-3.72; N.J.A.C. 8:31B-3.39. The New Jersey De-

partment of Health (the “DOH”) oversees the Commission and ad-

ministers the rates.

In order to help contain costs, Chapter 83 set hospital rates pro-

spectively, instead of upon actual cost. Under Chapter 83, various

procedures are divided into diagnostic related groups (“DRG”), and

a rate is assigned to each DRG. Instead of charging actual costs

incurred by a hospital for treating an individual patient, the hospital

has to charge the DRG rate which is designated for that classifica-

tion. Despite the calculation of bills without regard to actual costs,

a hospital bill still reflects a charge that previously represented ac-

tual costs. This charge is categorized as “total costs.” A “DRG”

charge also appears on a patient’s bill.

A particular hospital’s DRG rate consists of a weighted average

of the cost incurred by that specific hospital to treat a particular

illness and the average cost incurred by hospitals throughout the

state to treat the condition. Accordingly, this system penalizes a

hospital that incurs costs greater than that allocated to a particular

DRG category and rewards hospitals that provide more efficient |

services for a particular DRG.’

Additionally, as part of its DRG rate, a hospital must include a

charge for uncompensated care. Uncompensated care consists of

’ The costs incurred by a hospital include both direct costs and indirect costs.

Direct costs include salaries and fringe benefits provided to employees engaged in

the direct delivery of patient care, N.J.A.C. 8:31B-3.21, N.J.A.C. 8.31B-3.16. In-

direct costs consists of funds expended by a hospital in order to manage the hospi-

tal, to allow the hospital to engage in research and to provide for the maintenance

needed to upkeep a hospital.

:

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both care to the indigent and expenses that result from bad debts.

N.J.S.A. 26-2H 18.d; N.J.A.C. 8:31B-3.41; 8:31B-7.1. This charge

stems from a hospital’s mandate to admit anyone regardless of his

or her ability to pay.‘ Only hospital patients incur costs for uncom-

pensated care. In order to receive funds for uncompensated care a

hospital must determine whether a patient has any health insurance.

Furthermore, hospitals that treat patients who have Medicare can

recoup only the amount allotted by the Medicare system for the par-

ticular treatment. Medicare invariably pays less than the DRG rate

allocated for a particular condition. N.J.S.A. 26H-18.lc, however,

permits the Commissioner with the approval of the Board, “to ad-

just the DRG rate to account for costs incurred by statutes and regu-

lations that affect the delivery of health care.” Pursuant to this stat-

ute, the Commissioner, with the Board’s approval, enacted N.J.A.C.

8:31B:3.73. This regulation allows the hospitals to include in their

DRG rate an amount necessary to recover the difference between

the Medicare rate of payment and the DRG rate. These costs are

borne by non-medicare patients.

Moreover, Chapter 83 allows the Commission to decrease hospi-

tal costs for certain classes of payors. In particular, the Commis-

sion may grant a “payor differential” if it is supported by a “quanti-

fiable economic benefit such as the degree of promptness and

volume of payment to the hospital.” N.J.S.A. 26:2H-18b. Pursuant

to this provision, the Commission has granted a 2.2% discount to

plans such as Blue Cross. None of the Benefit Plans currently re-

ceive such a discount. Only the Carpenter’s Union Trust Fund (the

“Carpenter’s Union”), has requested such a discount. The Commis-

sion has not yet reached a decision as to the Carpenter’s Union’s

application.

In addition to the 2.2% discount the Commission grants an 11%

discount to plans with open enrollment. Because the Benefit Funds

‘ The 1978 Amendments mandated an inclusion in the DRG rate for uncompen-

sated care costs. The uncompensated care costs attributed to a particular hospital

was borne only by that hospital’s patients. In 1987 New Jersey again amended the

hospital rate setting system. Under the Amendments, hospitals throughout the

state shared equally in the cost of uncompensated care. Thus, the hospital bill of

each patient is increased by the same amount in order to compensate hospitals for

uncompensated care costs. Currently, a hospital increases a patient’s bill 19% for

uncompensated care. The New Jersey Health Care Trust Fund then distributes the

money collected for uncompensated care to each hospital according to that particu-

lar hospital’s needs.

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must limit their enrollment to union members and their families, the

Benefit Funds cannot receive this discount. The bills of patients

who did not belong to plans that received these discounts were in-

creased in order to supply hospitals with the reduced income they

lost because of the discounts. N.J.A.C. 8:31B-3.39.

Regulations, promulgated in accordance with the rate setting

scheme, contain an appeal process for individuals whose DRG costs

exceed their total costs by $250.00. Individuals who have third

party insurance that does not reimburse the hospital according to

DRG rates or that contains a deductible are not eligible to appeal.

Accordingly, none of the individual plaintiffs can avail themselves

of the appeal process.

The Benefit Plans do not provide the same type of payments for

hospital costs incurred by their members. For example, the District

Council of Ironworkers of Northern New Jersey Welfare Fund (the

“IWF”) Benefit Plan covers 95% of the actual hospital costs in-

curred by its members.° The NYSA-ILA Welfare Plan, however,

compensates the hospital for about 75% of the total fees charged to

its participants. Still, other Benefit Plans pay 100% of the DRG

charges.

Plaintiffs instituted their Second Amended Complaint against

certain New Jersey entities and administrators employed by New

Jersey who are associated with the rate setting provisions (the

“State Defendants”). Plaintiffs also sued various hospitals (the

“Hospital Defendants”) (with the State Defendants collectively the

“defendants”). The Hospital Defendants must charge DRG rates in

order to maintain the licenses that permit the hospitals to provide

health care.

* Prior to April 16, 1991, the IWF paid 95% of the DRG rate imposed by the

hospitals. Concurrent with its decision to reimburse only 95% of actual hospital

cost, the IWF instructed its members to submit only the 5% difference in total

costs to the hospitals. Mandated by the Act the hospitals have begun collection

procedures in state court to recoup the unpaid DRG charges. Following its deci-

sion to reimburse only 95% of total costs the IWF placed the difference between

95% of the DRG rate and 95% of total costs into an escrow account.

¢ Specifically, plaintiffs named the DOH, the Commission, the Administrator of

the New Jersey Health Care Trust Fund, the Department of Human Services Divi-

sion of Medical Assistance and Health Services and the Commissioner of Health

as defendants.

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In their complaint, plaintiffs allege that this Court must strike

down New Jersey’s hospital rate setting scheme for the following

reasons: (1) the scheme is pre-empted by § 501(a) of ERISA, 29

U.S.C. § 1132(a), and by § 186(c) of the Taft Hartley Act, 29

U.S.C. § 186(c)’; (2) it deprives plaintiffs of the due process and

equal protection rights guaranteed to them under the Constitutions

of the United States and the State of New Jersey; (3) it constitutes a

taking of property without just compensation under the United

States Constitution; (4) it imposes a special tax law in violation of

the New Jersey Constitution; and (5) it improperly delegates taxing

power to the Commissioner because it gives the Commissioner “un-

checked power” to establish hospital rates.

In addition to contesting each of the allegations asserted by plain-

tiffs, the defendants contend that this Court has no authority to hear

this case. First, the State Defendants assert that the Eleventh

Amendment protects them from the instant lawsuit. Second, the de-

fendants allege that if the hospital rates constitute a tax, the Tax

Injunctive Act prohibits this Court from hearing the instant motion.

III. DISCUSSION

A. State Immunity Under the Eleventh Amendment

The State Defendants allege that they have not consented to suit

and therefore, the Eleventh Amendment forecloses any action

against them. The Eleventh Amendment does not prohibit suits for

prospective injunctive relief and declaratory relief against state

agencies and state officials where plaintiffs contend that actions

‘taken by these agencies and officials, in their official capacity, have

violated the federal constitution or federal statutes. Geis v. Board of

Education of Parsippany-Troy Hills, 744 F.2d 575, 580 (1985).

This exception to immunity applies even if issuing the declaratory

or injunctive relief would reduce state funds. Edelman v. Jordan,

415 U.S. 651-52, 94 S. Ct. 1347 1358-59 (1974). Similarly, suits

that seek injunctive relief and assert that the state exceeded powers

granted to it by its own constitution are not prohibited by the Elev-

enth Amendment. Capitol Industries-Emi, Inc. v. Bennett, 681 F.2d

.

Plaintiffs have offered no support for their preemption claim brought under the

Taft-Hartley Act. Moreover, plaintiffs concede that preemption under § 186(c)

applies more narrowly than under § 501(a) of ERISA. Therefore, this Court rejects

plaintiffs preemption claim under the Taft-Hartley Act.

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1107, 1120 (9th Cir.), cert. denied, 459 U.S. 1087, 103 S. Ct. 570

(1982).

Because plaintiffs seek solely prospective injunctive and declara-

tory relief, the Eleventh Amendment does not bar their action com-

menced against any State Defendant. Moreover, even if this

Court’s ruling decreases funds available to the state with which they

can help defray the costs of medical expenses of its citizens, this

still does not foreclose this action against the State Defendants.

Likewise, the Eleventh Amendment does not preclude plaintiffs’

claim that the Legislature unconstitutionally delegated the taxing

power to the Commission.

B. Application of the Tax Injunction Act (the “TIA”)

Before this Court can consider the merits of the motions be-

fore it, the Court must decide whether the TIA bars any of plain-

tiffs claims. The TIA provides:

The district court shall not enjoin, suspend or restrain the

assessment, levy or collection of any tax under State law

where a plain, speedy and efficient remedy may be had

in the courts of such State.

28 U.S.C. § 1341. Accordingly, in order to determine whether an

action falls under the TIA the Court conducts a two-step analysis.

First, the Court must determine if the charge at issue constitutes a

tax. If the expense is a tax, then the Court must decide whether the

State provides a “plain speedy and efficient remedy.” 28 U.S.C §

13418

At the outset, this Court notes that the TIA clearly applies to the

types of claims and relief that plaintiffs seek. First, it is well settled

that actions for declaratory relief as well as for injunctive relief are

barred by the TIA. See Franchise Tax Board v. Alcoa Aluminum,

Lid., 493 U.S. 331, 110 S. Ct. 661 (1990). Additionally, the TIA

encompasses federal constitutional challenges to the imposition of a

state tax. See Hardwick v. Cuomo, 891 F.2d 1097, 1100 (3d Cir.

1989) (plaintiffs’ equal protection challenge to imposition of non-

resident tax barred by TIA).

* The Third Circuit has held that the TIA is a jurisdictional statute. Sipe v.

Amerada Hess Corp., 689 F.2d 396 (3d Cir. 1982). Hence, the Court cannot hear

any matters that fall within the scope of the TIA.

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Congress enacted the TIA in order to “prevent federal court inter-

ference with the assessment and collection of state taxes” by parties

who brought suits in federal court to enjoin a state or local govern-

ment’s collection of taxes. Hardwick, 891 F.2d at 1105. Congress

recognized tnat states had a “pressing need” to collect revenues. As

a result, state and local governments “would compromise [a party’s

claim] by taking less than the tax due.” Tramel v. Schrader, 505

F.2d 1310, 1315 (Sth Cir. 1975).

The difficult question faced by this Court is whether any of the

costs included in the DRG rate constitute a tax. Initially, this Court

finds that it must conduct its analysis under federal and not state

law. Robinson Protective Alarm Company v. Philadelphia, 581

F.2d 371, 374 (3d Cir. 1978) (“‘[T]ax under state law’ in 28 U.S.C.

§ 1341 should be determined as a matter of federal law by reference

to congressional policies underlying the Tax Injunction Act, rather

than by adoption of state tax labels developed in entirely different

legal contexts.”).?

No bright-line exists between assessments which are “taxes under

state law” and those which are not. Recently, the court in Butler v.

Maine Supreme Judicial Court, 767 F. Supp. 17, 18 (D. Me. 1991),

concisely stated the accepted definition of “taxes.” In general, “as-

sessments imposed primarily for revenue raising purposes are

‘taxes,’ while those levies assessed for regulatory or punitive pur-

poses, even though they may also raise revenues, are generally not

‘taxes.’ ” Id. (citations omitted).

The Third Circuit has followed this definition. For example, in

Robinson, the Third Circuit held that an assessment of 5% of gross

earnings levied upon alarm station companies who used under-

ground wires constituted taxes. The Court examined the character

of the assessments. It found that the taxes were “collected annually

in a manner similar to other gross receipts levied.” Moreover, it

noted that the monies collected were “added to the public fisc rather

than applied exclusively to contractual services owed central alarm

station companies.”'® Thus, the court concluded that Philadelphia

® Accordingly, plaintiffs’ argument that the “add-ons” constitute a tax because

the Commission on Hospital Rates termed them as such is of no moment to this

Court.

‘© Plaintiffs argument that the DRG rates constitute taxes because matching funds

collected from the federal government under the Medicare Program are placed in

the public fisc is simply a red herring. This Court must only determine whether

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taxed the plaintiffs under the TIA. See also Butler, 767 F. Supp. at

17 (D. Me. 1991) (state exacted tax from plaintiffs when it imposed

$300 jury fee on plaintiffs in state court action. Fees collected were

“funnelled into Maine’s general fund [and not] applied directly to

the costs of jury trials.””).

The dictum announced by the Third Circuit supports the conclu-

sion that if Philadelphia applied the revenue collected to the regu-

lated industry, the court would have held that Philadelphia did not

tax the alarm station companies. Cf Rural Telephone Coalition v.

F.C.C., 838 F.2d 1307 (D.C. Cir. 1988) (FCC order to allocate 25%

of traffic sensitive costs from local telephone companies to long

distance telephone did mot impose a tax. Primary purpose of the

ruling was not to raise revenue but only to regulate rates.); Brock v.

Washington Metropolitan Area Transit Authority, 796 F.2d 481

(D.C. Cir. 1986), cert. denied, Washington Metropolitan Transit Au-

thority v. Brock, 481 U.S. 1013, 107 S. Ct. 1887 (1987) (statute that

mandated employers to contribute to special fund from which sev-

eral types of workers compensation payments were made did not

impose taxes on employers. Statute’s primary purpose was to “reg-

ulate liability for industrial accidents” and not to finance the gov-

ernment’s general programs. Fund was segregated from other fees

collected.) Head Money Cases, 112 U.S. 580 (1884) (Duty on im-

migrants collected from shipowners and segregated into its own

fund which was imposed! in order to defray the expense of regulat-

ing immigration and for the care of immigrants did not exact a tax

from shipowners but instead only implicated the Commerce

Clause).

Guided by the dictum in Robinson, this Court holds that the con-

tested costs included in the DRG rate do not constitute a tax. The

state never uses the money collected from plaintiffs for the general

welfare. Additionally, the fees collected are never intermingled in a

general fund. Instead, the fees defray the costs that hospital’s incur

pursuant to state regulation of hospital costs. Hence, this Court

finds the TIA does not apply. Accordingly, this Court has jurisdic-

tion over plaintiffs’ claims.

(Continued)

the costs included within the D)RG rate constitute a tax. Money obtained by New

Jersey from the federal government that are related to some of the DRG costs has

no bearing on this analysis.

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Courts in various circuits have found that special assessments

collected by the government to fund specific programs constitute a

tax under the TIA. For example, in 7ramel, the Fifth Circuit held

that a special street improvement assessment levied on plaintiffs

who owned land which abutted the streets that the City wanted to

improve constituted a tax. 505 F.2d at 1312. The court reasoned

that to hold otherwise would defeat the purposes of the TIA. In

particular, the court held a contrary finding would permit parties to

“delay or to frustrate the revenue collection process by resorting to

federal courts.” Jd. at 1316.

Similarly, the Sixth Circuit held that a state law which required

“parolees to make monthly payments to a supervision fund and to a

victim’s compensation fund,” imposed a tax on parolees. Wright v.

McClain, 835 F.2d 143 (6th Cir. 1987). The Sixth Circuit acknowl-

edged that the funds collected were used only by the Corrections

Department. Jd. at 145. The Sixth Circuit reasoned, however, that

the fees constituted revenue because they were used “[by the gov-

ernment] to defray the cost to the general public of monitoring and

supervising the behavior of convicted offenders and to compensate,

in some measure, victims of criminal misconduct.” Jd. Thus, the

court concluded that even though the funds were earmarked for a

particular use by the state they were taxes.

The decisions discussed above do not disturb the Court’s hold-

ing. Unlike the cases cited above, the charges included in the DRG

rate do not fund special programs financed by New Jersey. Instead,

they allow hospitals regulated by New Jersey to meet their financial

obligations. Therefore, the TIA is-inapplicable to the action before

this Court."!

C. ERISA Pre-emption

Plaintiffs argue that ERISA pre-empts the method New Jersey

utilizes for establishing hospital rates. Initially, plaintiffs contend

that ERISA pre-empts Chapter 83’s method of setting hospital

'! Because this Court finds that costs included in the DRG rates are not taxes,

this Court will not determine whether the TIA applies to actions brought under

ERISA.

|

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rates, determining who is eligible to appeal DRG costs, and decid-

ing who can receive a discounted rate, because these provisions “re-

late” to an employee benefit plan. Plaintiffs further allege that the

charges included in the DRG rates for uncompensated care, Medi-

care, and appeals granted to individuals constitute taxes that are im-

permissible under an express provision of ERISA because they re-

late to an employee benefit plan.'*

ERISA contains an explicit pre-emption provision. Section

514(a) of ERISA pre-empts state laws that “relate to any employee

benefit plan.” 29 U.S.C. § 1144(a) (“§ 514(a)”). The Supreme

Court has consistently interpreted the pre-emption clause broadly.

See FMC v. Holliday Corp., 111 S. Ct. 403, 407 (1990) (“The pre-

emption clause is conspicuous for its breadth. It establishes as an

area of exclusive federal concern the subject of every state law that

‘relates to’ an employee benefit plan governed by ERISA.”); Fran-

chise Tax Board, 463 U.S. 1, 24, 103 S. Ct. 2841, 2854 n.26

(“ERISA’s commodious pre-emption provision is virtually

unique.”). Accordingly the Supreme Court has refused to define

“relate to” narrowly. Instead, the Supreme Court has announced:

A law relates to an employee benefit plan in the normal

sense of the phrase if it has a connection with or refer-

ence to such a plan.

Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 107 S. Ct. 1549, 1552

(1987).

Guided by the broad language contained in the preemption

clause, the Supreme Court has held that ERISA pre-empts a state

law even where a state law affects ERISA indirectly or the law was

not “specifically designed to affect such plans.” Alessi v. Raybes-

tos-Manhattan, Inc., 451 U.S. 504, 525, 101 S. Ct. 1895, 1907

(1981). Similarly, the Supreme Court has held that the preemption

clause does not apply only to “state laws dealing with the subject

matter covered by ERISA: reporting, disclosure, fiduciary respon-

sibility and the like.” Shaw v. Delta Air Lines, Inc., 463 U.S. 85,

97-98, 103 S. Ct. 2890, 2900. Moreover, ERISA pre-empts a state

law even if the law “[is] consistent with ERISA’s substantive re-

quirements.” Metropolitan Life Insurance Co. v. Massachusetts,

2 Because this Court finds that ERISA pre-empts New Jersey’s method of set-

ting hospital rates, regardless of whether the charges challenged by plaintiffs con-

stitute a tax, this Court will not decide the tax issue.

76a

471 U.S. 724, 105 S. Ct. 2380, 2388-89 (1985) (citing) 103 S. Ct. at

2900-2901, or the law was enacted to “effectuate ERISA’s underly-

ing purposes.” Mackey v. Lanier Collection Agency & Service

Inc., 486 U.S. 825, 108 S. Ct. 2182, 2185 (1988).

In Ingersoll-Rand Co. v. McClendon, US. 8th S GS

478, 484 (1990), the Supreme Court recently affirmed the broad

reach of ERISA. In /ngersoll, the defendant contended that §

514(c)(2) of ERISA limited the scope of § 514(a). Section

514(c)(2) provides:

The term State includes a State, any political subdivi-

sions thereof, or any agency or instrumentality of either

which purports to regulate, directly or indirectly, the

terms and conditions of employee benefit plans covered

by this subchapter. 29 U.S.C. § 1144(c)(2).

(Emphasis added). Based on ERISA’s definition of “State,” the de-

fendant in Jngersoll concluded that § 514(a) only applies to state

laws that “affect plan terms, conditions, or administration [of an

ERISA plan].”

The Supreme Court, however, rejected this argument. First, the

Supreme Court explained that Congress expanded the definition of

state in order to enlarge the grasp of ERISA. Hence, defendant’s

restrictive reading of § 514(a) would defeat Congress’s purposes.

Second, the Supreme Court concluded that if Congress intended to

restrict § 514(a) in the manner proposed by defendant it would have

included the limiting language in § 514(a) itself. Jd. Therefore, the

Supreme Court refused to narrow the reach of the plain meaning of

the language contained in § 514(a).

The Supreme Court’s broad reading of ERISA’s preemption

clause stems not only from the plain meaning of the provision itself,

but also from the legislative history of ERISA. Specifically, Con-

gress rejected a pre-emption clause that only “applifed] to state

laws [which] relat[ed] to the specific subjects covered by ERISA.”

Shaw, 103 S. Ct. at 2900; FMC, 111 S. Ct. at 408. Similarly, Con-

gress excluded a state’s “generally applicable criminal laws” from

pre-emption. Jd. Such an exclusion would have been unnecessary if

Congress intended § 514(a) to apply only to “state laws dealing spe-

cifically with ERISA plans.” 103 S. Ct. at 2900; 111 S. Ct. at 408.

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Finaliy, the legislative history reveals that Congress enacted

ERISA in order to give federal authorities “sole power to regulate

the field of employee benefit plans.” Pilot Life Ins. Co., 107 S. Ct.

at 1552 (quoting) 120 Cong. Rec. 29197 (1974). Accordingly,

Congress enacted a broad pre-emption clause in order to “eliminate

the threat of conflicting or inconsistent State and local regulation of

employee benefit plans.” /d. (quoting) 120 Cong. Rec. at 29933.

Following the dictates of Congress, the Supreme Court has held

that ERISA superseded state laws that forced a benefit plan to

structure benefits in a specific manner. Similarly, the Supreme

Court has invalidated state laws that could subject an ERISA plan to

inconsistent state regulations. As noted above, whether a state law

mentioned ERISA plans was not a critical factor in the Supreme

Court’s decision.

For example, in Alessi, 451 U.S. at 508-09, 101 S. Ct. at 1898,

New Jersey forbade reducing retirement benefits or payments by

the amount of money a person received under worker’s compensa-

tion. The Supreme Court held that ERISA pre-empted New

Jersey’s law. In particular, the Supreme Court found that New

Jersey’s law impermissibly “eliminate[d] one method for calculat-

ing pension benefits.” As a result, New Jersey’s regulation would

force a pension plan either to change its manner for computing ben-

efits for all plans both within and outside New Jersey or to require

the plan to calculate benefits for New Jersey employees in a manner

different from the manner used for employees outside New Jersey.

Moreover, the Supreme Court reached its conclusion irrespective of

the New Jersey law’s beneficial purposes. Additionally, the Su-

preme Court held that it made no difference that “New Jersey in-

trudes indirectly through workers compensation rather than directly

through a statute called pension regulation.” Importantly, although

the Supreme Court recognized that New Jersey’s law constituted an

exercise of its police powers, the Court still held that ERISA pre-

empted the law.

Likewise, in FMC, 111 S. Ct. at 406, the Supreme Court held

that ERISA pre-empted Pennsylvania’s anti-subrogation law. Penn-

sylvania’s law prohibited a party from subrogating his or her tort

recovery “in an action arising out of the maintenance or use of a

motor vehicle” to any plan that paid the party benefits related to the

accident. Jd. Contrary to Pennsylvania’s law, the benefit plan at

ee

78a

issue in FMC provided that a participant would reimburse the plan

with any recovery obtained from a third party.

In reaching its conclusion, the Supreme Court found that Penn-

sylvania’s law restricted the way in which the plan could provide

benefits. Additionally, the Court reasoned that Pennsylvania’s stat-

ute would subject the plan to inconsistent regulations. This would

“frustrate plan administrators continuing obligation [under ERISA]

to calculate uniform benefit levels nationwide.” Therefore, the Su-

preme Court held that Pennsylvania’s anti-subrogation law was un- ~

enforceable.'"? See also Shaw, 463 U.S. 85, 103 S. Ct. 2890 (1983)

(ERISA pre-empted New York law that mandated benefits for preg-

nancy. Law forced ERISA plans to structure benefits in a particular

manner and subjected plans to inconsistent regulations).

Following the Supreme Court’s interpretation of § 514(a), the

Eighth Circuit held in a recent decision that ERISA pre-empted Ar-

kansas’ general assignment statute. The Arkansas statute made no

reference to an ERISA plan. Instead, the statute provided:

all bonds, bills, notes, agreements, and contracts, in writ-

ing, for the payment of money or property, or for both

money and property, shall be assignable.

‘3 The Supreme Court also found that Pennsylvania’s law related to ERISA be-

cause it referenced employee welfare plans. In particular, the statute encompass

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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