Legal Case Summary

We'll hear argument this morning in case 14181 go bay versus Liberty Mutual Insurance Company. Ms. A.C.? Mr. Chief Justice and may it please the court. Under. Under the principles of this court adopted in travelers, Vermont's collection of healthcare data is not preempted. The database statute does not affect a risk of plans in any way that undermines a risk of core objectives. Does not require plans to offer benefits, affect the financing or fiduciary standards for plans, or change the way that plans administer benefits to their members. Vermont is merely collecting standardized data that Blue Cross necessarily generates and already provides to the state for itself and other entities. It hasn't been argued by Liberty, and we can ask them about that, that this is burdensome that it might be different from state to state and so forth. And it may be that this sounds more in conflict preemption than statutory preemption. But can you just answer a few questions? Does this apply to people that are not residents in Vermont, but have been treated in Vermont, and does it also apply to people that are outside of, that are Vermonters, but are treated outside of Vermont? I mean, what's the universe to whom this applies? And it seems to me that that would be difficult for plans to figure out. As implemented by the Board, Your Honor, the database requirements apply to Vermonters receiving healthcare services from a covered insurer, regardless of their locations, or both inside Vermont and outside Vermont, if it's paid for by a covered insurer. It does not, the Board has chosen not to require data from non-Vermont residents receiving care in Vermont. With respect to the burden, and with respect to the burden issue, I can't hear you. Let me say it's chosen to, does the statute authorize it to? The statute authorizes it to do either, Your Honor. We ought to consider that, don't you think? I don't, I don't believe so, Your Honor, because the program that has been challenged here by Liberty Mutual is the program as it has been implemented by the Board, and that is how it has been implemented. And this kind of generally applicable health care regulation is not preempted for the reasons that this Court has expressed in a series of decisions, including travelers, DiBono, Mackie, and Dillingham. One of the points that Justice Kennedy suggested that states can have different reporting requirements, so it's a little bit like Ego Hoff in that respect, that if there were uniform requirements, that would be less burdensome. But if each state has its own specifications, and that becomes burdensome and costly. Your Honor, two responses to that. The first is that there is simply no evidence in this record that there's any cognizable burden on the third-party administrators who are health care insurers, who generate this data and are providing it already in their capacity as insurers. Second, certainly some states may choose to do these programs differently, but as several of the Amicus briefs explain, including the Brief from the National Association of Health Data Organizations, these are carefully designed programs that track the electronic transaction rule under HIPAA that provides national standards for electronic claims transactions

. Suppose states had different reporting requirements, and the plan showed, I don't think so, but suppose they showed, that this was burdensome. Does that affect the analysis of the preemption question? Only in this way, Your Honor, I think that the courts holding in travelers can be distilled to basically three questions. The first question is, does the state law specifically and directly regulate Erissa plans only, that's not an issue in this case, it does not. The second question is whether the state is regulating in an area that Congress reserved to the states, or is regulating in an area with which Erissa is principally concerned. And here the state is engaging in classic healthcare regulation, so on that question the answer is no. And then travelers leaves open. You could say that it's engaging healthcare regulation, you could also say it is engaged in data collection. And if you say the latter, that is something that Erissa covers. Your Honor, Erissa governs planned financial reporting and planned disclosures to the members. Primarily, the reporting requirements that Erissa sets out are about the plan finances, actuarial statements, statements of audited financial statements, information about how the plan is, about the degree of the plan's financial soundness. And nothing that Vermont is doing has anything to do. That's not true. So, after the Affordable Care Act, doesn't the Affordable Care Act include in Erissa a section authorizing the Secretary to gather information from plans for the purpose of improving health outcomes? Yes, the Affordable Care Act made a technical amendment to Erissa, which in turn incorporated the acts amendments to the Public Health Services Act. But those do not change the test for Erissa preemption. And they're not part of the plan's annual reporting to the Department of Labor. There's a couple of reasons for that. One is that the Affordable Care Act itself has an almost an anti-preemption provision, a provision that says that the Affordable Care Act only prevents those state laws that prevent the application of the act. Part seven of Erissa also, which has those amendments in it, is not part of Erissa as it was originally passed. That was added by HIPAA. And part seven itself has a provision that says it does not affect the plan. Why does it matter whether it was in Erissa as originally passed? It's in Erissa now. And it is true that there is a sort of an anti-preemption provision, but there is also a provision in the Affordable Care Act that says that the provisions that are added have no effect on the Erissa preemption provision. That's right, Runner. So, what do you make of that? What I make of that is that it does not change the test for preemption either way

. And when Congress passed the Affordable Care Act, travelers had been on the books for years. The standard set forth in travelers, which reserved to the state's health care regulation, was understood by travelers, was understood by Congress, and it was not changed. And this program that Vermont has adopted is classic health care regulation. The data that is related. The regulation from Vermont also has laws that govern fiduciaries. So could they have a statute which says all fiduciaries, including fiduciaries, RISSA fiduciaries, must report, fill out the following forms about how they invest their money. Can they do that? They could have a standard for fiduciaries. No, no, no. Can they do just what I said? Is there is that preemptive? It would be preemptive to apply to a resume. Now, suppose instead of that what they say is what we would like is that all fiduciaries of a RISSA plans send us each month a report of all of the benefits under the retirement plan that they have paid to any member. Can they do that? Your Honor, I think the answer that probably depends on the area in which the state is regulating. I said what they are doing is they have their secretary of health and human services that would like to know how wealthy or poor the workers are. So that's what they do. I think that is a close question. You think that is a close question? That is a close question. In other words, I can. And, gee, I see case after case here that says that reporting requirements are a central function. You know, you've read them just as well as I. And it seems to me surprising that they can do that. Isn't that the job of the Labor Department? I think that is primarily the job of the Labor Department. I say that it is not that- There's obviously my question to good answer because you're saying I'm not getting anywhere with this line because I'm going to say what about health care? That's the next question. My actual question I'm driving at is this. You should have the information. I have no doubt about that

. But the question is whether you have to go to the Labor Department first or HHS and say we want uniform rules here or whether they have to come to you when the rules of 50 states turn out to be a mess. And you say you want to go first and let them come after me and I think the other side says no. If you want to do what you want to do, go to the Labor Department and get a national rule that gives you large range to get what you want. That's why- And I don't know the answer to that question. That's why I ask it. And you're under the answer to that question is that because this is classic health care regulation for which states are responsible, insurance rate review, budget review, health care research, it is an area in which states are permitted to regulate. And they're permitted to regulate even slightly differently from state to state. And is the Department of Labor the Federal Government agrees with us that this is an area that Arissa leaves to the states even though it involves data collection? Because Arissa cannot possibly have been intended to sweep away all collection of information from plans by states. Congress adopted a deliberately expansive definition of a welfare benefit plan. And Arissa that includes not just the direct provision of medical care but also daycare centers, apprenticeship programs, prepaid legal services. These are all areas in which when plans would act, they would necessarily be providing information to state. I see that argument as to Arissa as originally enacted. But I am very troubled by the fact that it now authorizes the collection of data for the purpose of improving health outcomes, health care outcomes. I don't see how that, unless the anti-preemption provision saves the day. I don't see how that does not undermine your principal argument, which is that Arissa may preempt reporting of financial data and that sort of thing, but it doesn't preempt the collection of data regarding health care. You're on the scope of Arissa's preemption provision in 1144 is governed by what Congress intended when it passed Arissa in 1974. And the later amendments to Arissa regarding group health plans include the language that says does not affect or modify that standard. So this court when it is considering the scope of the areas that Congress left to the states in 1974. I don't see how that can possibly be. If Congress enacted an amendment tomorrow that says one of the core purposes of Arissa is to collect health care information. And here is the health care collecting requirement. You would say, well, that's not preempted because that wasn't the purpose when they enacted the preemption provision originally. I would certainly say that was not preempted if it was added to Part 7, which says that Part 7 does not affect the test for Arissa preemption in 1144. Well, saying it doesn't affect the test is quite different from saying that nothing changes

. The test remains the same, but now that test is applied to collection which the Labor Department is itself conducting or is itself authorized to conduct. That's not changing the test. It's simply changing the facts to which the test has been applied or the law to which the test has been applied. It would change the test, Your Honor, because if Arissa was now considered to have a broader expansive scope that intruded into health care, that would change this court's settled precedent in travelers in De Bono. And again, Congress will change the test. And so, the test would still be the same, whether it's a core function of Arissa or not. And it has made it a core function of Arissa. It has not made it a core function of Arissa. It has, there were, it's the Affordable Care Act's amendment to Arissa. And again, there's also, in addition to Part 7's preemption language, there is the Affordable Care Act's anti-preemption language. And to think that when Congress passed the Affordable Care Act, which contemplated a robust federal state partnership in health experimentation, which included language that authorized the Department of Health and Human Services to provide Medicare- But this is no problem for you. All you have to do is go to DOL or HHS. The state representative says this is what we want to do. Will you please promulgate a regulation, can do it maybe in 90 days or 120 days, which says that this and similar things are fine. And in our opinion, it's not preempted. I think you could do that. That's my opinion. I would maybe only want to think that. But so I think it's just a question of which forms you have to go through. But if we take you and say, and I'm going to ask, I'm really asking the government this question, because I don't see why they are in your side. And they'll have an answer to that. You see, I want to find out. But what I want to find out is this, the fact that I saw was 93 million people have these plans. And if 93 million people have these plans, there can be 50 states with 50 different sets of regulations imposing a huge financial burden upon health care

. And were that to happen, suddenly all the people were trying to help under this plan, will find themselves much worse off and purely for bureaucratic reasons. If I take their side of it, I can have some assurance that the purpose of Congress in these statutes will be fulfilled because there will not be unnecessary conflicting reporting requirements, which sound like nothing, but they're very expensive to actually implement. Now, that's my basic problem. It's the same question for you, for the government, and for the other side, but the other side will agree with the way I put the question. And if I may try responding this way, Your Honor, the notion that it's more efficient for the Department of Labor to collect a subset of standardized. They're not going to collect anything. All they're going to say is in our reg, you have permission to go and impose these requirements. But by having to go to them first, we prevent the conflicting requirements of 50 different systems. And it's possible that they may be able to do that. I'm not sure where that authority would come up with this. It isn't clear that they're able to do that. I mean, it isn't clear that a federal agency can eliminate preemption by simply saying, okay, you can go ahead and do it. Even though it's a live-room. Otherwise, preempted under this statute, we say it's okay. I think that's not a clear question. I think it's not clear that they can do that. And again, I think the question for the court is not what the Department of Labor can do, but what Congress reserved to the Senate. I know your time is running out, but consider two cases. Case one, Vermont is the only state that requires this. Case two, 50 states requirement that require this, and it's all different in its burdens of same preemption analysis. Yes, Your Honor. Same preemption analysis as in travelers in De Bono and Matt. Same result. Yes, Your Honor

. Same result. As in Mackie where this court held that Gart State Garnishment litigation procedures as applied to the very benefits that the plan was paying out were permissible. Clearly, those were going to vary state by state and involve the plans in state by state regulation. On the rebuttal, because I don't want to eat more of your time. Would you go through the more careful, more slowly? The fact that this information is all electronic, all of it already set out in the HIPAA regulations. And so it's just a question of, and now all reporting is being done in one system. I see D10, right? Everybody has to use the one computer system. I am not actually familiar with that, but I'll say that. Thank you. If I may reserve my remaining time. Thank you, Council. Thank you. Mr. Bash. Mr. Chief Justice, and may it please the court, I would like to start if I could with Justice Breyer's questions, and then hopefully I can move on to Justice Alito's questions about the ACA and Justice Kennedy's questions about the burden here. Let me set out how we see the interaction of the preemption framework and record keeping requirements and then turn to what I think DOL's role is here. Both sides agree, essentially, that a RISSA plans can be subject to some reporting requirements, probably many reporting requirements, incident to state laws in other substantive fields. So for example, the solicitor general gave the example of daycare centers. A RISSA plans can run daycare centers. I don't think anyone doubts that you can have all sorts of reporting requirements to make sure the staff is trained, the facilities are safe, and so forth. This court's case in DiBono appelled a tax imposed on employer contributions to an RISSA medical benefit plan that provided the medical benefits directly. And we told the court at the time that that tax had all sorts of reporting requirements. So essentially, the question is here, where to draw the line between reporting requirements that are permissible, and those that are non permissible

. As I take Respondents view, it's that there is certain information that is so core to the plan that you simply can't have state law reporting requirements about that information. I don't think that can be right. Take, for example, real property held in trust by a pension plan. DOL requires reporting on that, obviously you need to know the assets the pension plan has. But certainly a state taxing authority can require reporting about that same information to assess the property tax. The same was true with the tax in DiBono. The same is true by the way in Dillingham. That was a case about an RISSA run apprenticeship program. And California law said, you either follow our standards for apprenticeship or you have to pay your higher wage. I mean, that was as core as you get. It was literally the way the apprenticeship program was set up. So I don't think the test can be whether the information is in some sense core to a RISSA. I think the test has to be, is this reporting requirement incident to a law in the field governed by a RISSA, bestying funding, fiduciary duties and so forth, or is it incident to a law in health care or in daycare center regulation? Here, I don't think anyone disputes. This information is used for hospital budget review, for health insurance rate review, for medical research. There's no question that it's incident to classic state health care regulation. Now, why isn't there also a requirement that the law just not be burdensome over a certain level? It is just as Kagan, I think I cut short my test. The first inquiry is, is this incident to a field that a RISSA doesn't govern? I think that's satisfied here. But then there's still another question under travelers, which look to both purpose and effects of whether the effect of the law is so burdensome that effectively frustrates or impedes the design of a RISSA plans or the administration of a RISSA plans. And I think a law like this that imposes reporting requirements on claim could theoretically be that burdensome. And someone in the field. How is that any different than conflict preemption? How does that give any special effect to the statute here? I mean, you could make that argument if there was no preemption provision. Well, I think the way it's different than conflict preemption or at least one way is that if it actually is in the core field governed by a RISSA, I mean, if the State said we just want to make sure these pension plans are well funded. So we're going to ask for reports incident to that role. It would be preempted, even if the requirements weren't particularly burdensome

. I mean, the Court has never held that in a specific case, but I think the Court's analysis leans towards that direction. So it could either be within the preempted field, in which case it relates to a RISSA plans and is out, or it could be so burdensome that it effectively frustrates the purpose of a uniform RISSA. The former sounds to me like standard field preemption and the latter like standard conflict preemption. Well, I think there have been, is it all the same? There have been some well-written separate opinions in this area that have been suggested. I don't think, I don't think, I mean, here's what I would say about that. I mean, I know your opinion and opinion of a few other justices have suggested we should shift to field preemption. I think if the Court were to say what we've been doing all along is field preemption, and it makes more sense to try and lead a classifier that way. From the Department of Labor's perspective, that would be fine. I think we would be a little bit concerned if the Court signaled to lower courts in its opinion that it was marking a big shift in its jurisprudence that could destabilize the law. We think- Why aren't you on the other side of the case? That is, I was fine with you until I read a few of these amicus briefs. And then suddenly I saw 93 million people, and there are associations all over the place that are worried about this problem. And they have a big chart where they show the possibilities of conflict. You yourself are worried about conflict. Conflict among states and requirements means money. A lot of money. That's what they say, and that's plausible. So what I want to know is what are you all proposed to do about that in the U.S. government? One thing to do about it, and I've looked up the reg, so maybe just a scale of disagrees, but I'm talking about what I think. All right. The-the-it seems like they would have authority to issue regs either way. Blocking or getting permission first. That's where I ended up, and that's what I wanted your view about. You see what I'm saying? I see Richard said there's two pieces there, whether this actually has a burden, what we could do about it if there was

. I didn't mean to suggest we think it has a burden. It's the view of the Department of Justice that the significant burden has not been shown- the Department of Labor that the significant burden has not been shown here. So that's starting premise, we do not agree with that. All I'm saying is that if a party could show that burden, that would raise a substantial preemption question and would be highly relevant in the preemption analysis. So why hasn't that burden been shown? Respondent submitted nothing below. I mean, really, they submitted an Internet fact sheet. There's something very intuitive about their argument, and it's essentially what Justice Kennedy said. It's-when 50 states devise 50 different requirements for this different formatting, different particular information requested. That just all adds up to a lot of hassle, which all adds up to a lot of money. Two points. I mean, first, it seems far less burdensome than state laws this Court has already appelled, or that state laws that I think most people would agree have to be appelled. I mean, the tax or the surcharge in travelers, that was the case where if you bought commercial insurance, you had to pay a surcharge up to 24% more on medical purchases. That's unbelievably burdensome. It surely had reporting requirements associated with it, and having to pay vastly different surchargers in 50 states could be burdensome, too. What this Court's precedents have said, including travelers and Dillingham and DiBono, is that a mere burden is not enough? What has to be shown is that it interferes with the administration of benefits. So in Eaglehof- Well, but a consistent theme in our cases when you say a mere burden is not enough, is that the government wants employers to once set these things up, they don't have to. And two, they want the money to go to benefits, not to go to administrative bureaucracy, expenses. Is it your view in analyzing this question, do we look at what would happen if 50 states adopt different programs, or do we look at just Vermont because Vermont happens to be first? The former. Our view is that you have to contemplate that 50 states could adopt different regimes? Yeah, I think that's right. So you don't think 50 different regimes of reporting is going to require a significant diversion of money away from benefits to administration? Not on this record, Mr. Chief Justice. Recall- What kind of a record do you need to show that? I mean, of course you can't have a record of what 50 states are doing if it's a hypothetical question. Well, I think there's a couple ways Respondent could have made the showing here. I mean, at minimum, Respondent could have had its own third-party administrator come in and say, these reporting requirements are burdensome

. This is what we've had to do. We've had to change the way we process claims because they're so burdensome. My suspect they could not have made that showing. Well, we have 20 pages, 26 and 27 of the Blue Cross Blue Shield brief. And there they have a big chart and there are all these organizations out there that are trying like the uniform law commissioners to create uniformity. That's why I say that's why I'm puzzled as to what to do. Well, I suppose to write an opinion that says, even though Blue Cross Blue Shield feels it's a big mess and trying to straighten it out, they didn't make the right record in the Vermont trial court. How do I write that opinion? Going to the chart point, I mean, the chart actually doesn't show conflicting requirements. Most of the counterpoints they have are like not required. I don't think they're conflicting requirements. And even if you look at the end of the Blue Cross Blue Shield brief, they never actually say this isn't. I'm serious. How do I write the opinion? It's supposed it could happen, but it hasn't happened yet. How do I write the opinion? I think the opinion is written like this. One, this is a reporting requirement incident to a field that is not governed by a RISA, health care regulation. It's presumptively valid, but we're going to look and see if Respondent has made a showing that it's so burdensome that it fundamentally changes the way plans are administered or designed. Respondent has not made that showing here. That is how the opinion is written. I mean, this court has never actually said that a burden is so bad that it's preempted even if it operates in a field outside of a RISA. It is suggested in Dicta that is possible, but that is inherently a factual determination. And it's hard to see how the court could reach that conclusion without some factual determination. So we go through at one point, I'll send the 11th State that does this, and it's the 11 different things we say is that a burden. Is that a sufficient burden? I mean, we say no. But then when 30 States do it, maybe it's a different answer. That seems like a very odd preemption analysis. Well, I don't think it should turn on that, Mr. Chief Justice. I do think it's appropriate for a court to consider what if 50 different States impose different requirements like this, but just like 50 different States might have different requirements for daycare centers or for prepaid legal services, that I don't think is the sort of burden. Well, this goes to basic, very comprehensive reporting of data. It's not simply, well, if you run a daycare center, you have to comply with the rules about daycare centers. Of course you do. It's quite different. One of the things a RISA plans do is report data and compile data. And it seems to me that the analysis says, well, daycare centers, you can. That seems a little bit off base. May I respond, Mr. Chief Justice? No. Of course you may. Please. I think that the, I'll try to do in two sentences. I think that the burden here is far less substantial than the burden of complying with state apprenticeship regulations for the way you design the program in Dillingham. Here, most self-insured plans use third-party administrators. And often those third-party administrators are insurance companies that already have the infrastructure in place for reporting requirements as applied to them, which cannot be preempted under RISA. Thank you, Council. Mr. Waxman. Mr. Chief Justice, and may it please the court

. That seems like a very odd preemption analysis. Well, I don't think it should turn on that, Mr. Chief Justice. I do think it's appropriate for a court to consider what if 50 different States impose different requirements like this, but just like 50 different States might have different requirements for daycare centers or for prepaid legal services, that I don't think is the sort of burden. Well, this goes to basic, very comprehensive reporting of data. It's not simply, well, if you run a daycare center, you have to comply with the rules about daycare centers. Of course you do. It's quite different. One of the things a RISA plans do is report data and compile data. And it seems to me that the analysis says, well, daycare centers, you can. That seems a little bit off base. May I respond, Mr. Chief Justice? No. Of course you may. Please. I think that the, I'll try to do in two sentences. I think that the burden here is far less substantial than the burden of complying with state apprenticeship regulations for the way you design the program in Dillingham. Here, most self-insured plans use third-party administrators. And often those third-party administrators are insurance companies that already have the infrastructure in place for reporting requirements as applied to them, which cannot be preempted under RISA. Thank you, Council. Mr. Waxman. Mr. Chief Justice, and may it please the court. A signal goal of RISA enacted in 1974 was to foster employee benefit plans that could operate nationally under nationally uniform rules of administration, first and foremost rules about record keeping and reporting. Now, of course, RISA plans like other regular businesses are subject to ancillary regulation like maintaining a safe workplace, paying minimum wage and prevailing wage laws, paying their real estate taxes on their headquarters. And if they choose to run a hospital, run a law firm for their legal services, benefit program, run a childcare center, they are subject to local regulation like other providers of those local services, but in every single case, in this court and every lower court decision that I have found, in which courts have upheld state-by-state reporting requirements. It has always been incident to a substantive obligation that the state could impose. And no one contends that Vermont could impose substantive regulations on the claims that Liberty Mutual pays under its employment plan. Now, I want to go to the point that- Mr. Waxman, why was it that you introduced absolutely no evidence of burning in the lower courts here? That is not true, Justice Kagan. We did not introduce any evidence about what it would cost us in dollars and cents to have Blue Cross Blue Shield comply with the Vermont request that is the subject to the subpoena. But we did introduce substantial evidence in the record below, and some of it is included in the joint appendence and all the pages that are extra long folded in about what it is that we have to do, both in Vermont and in the then 15 other states that imposed very, very different reporting obligations. So we didn't put a dollars in cents in, but we did make the lower court, the district court, on its request, very aware of this very substantial burden. And Congress in determining, in deciding to, in exchange for blanket federal regulation of these fostered national plans to grant a very broad preemption provision that says this is going to be federal regulation- What about the Congress? What about the Congress point for you that I was making before? The number that jumped out from the page is the 93 million people this affects. Now that's a huge number, and therefore the risk of conflicting regulations is serious. It's in raising costs, that's for you. But they say it hasn't been shown yet, so I ask you, if it does come about, if it should come about, and you lost this case, why can't your clients go right to the Department of Labor, whose regulations I've read, or possibly ACCA, and say we want you to impose a uniform national data collection system, or the equivalent, put limits, and then preempt the conflicting state limits. Now it may be other members of the court do not agree with this approach, but I've written the case, Metro Medi, where I think the agencies have a lot of power there. And I think they have more capacity to decide this kind of thing than a group of judges. So what about that for you? Justice Breyer, a couple of points. First, in the lower court and in this court, neither party on the other side has disputed what I think is the self-evident proposition that the Department of Labor, and now the Department of Labor, and the Department of Health and Human Services absolutely have the statutory authority under ERISA to impose the kind of record keeping and reporting requirements that Vermont and now 17 or 19 other states do. They have never disavowed that, the SG's brief at both the invitation stage and the merit stage sort of coily suggests that that's right. Well, that sounds like a one-size-fits-all solution, and there's some value to states being able to think about their own health care needs and to think about what things they want. So again, let's go back to this burden, because it is a very intuitive idea that you have on your side, 50 different states, that's a lot of money. But I guess I wonder why it is a lot of money. I mean, as I understand what's going on here, that all the data that's being requested is data that Blue Cross Blue Shield generates anyway, that all the data that's being requested is data that Blue Cross Blue Shield reports for other people. That really, this is a formatting question, even with respect to the wide variety of states, that the states have started getting their formatting more uniform

. A signal goal of RISA enacted in 1974 was to foster employee benefit plans that could operate nationally under nationally uniform rules of administration, first and foremost rules about record keeping and reporting. Now, of course, RISA plans like other regular businesses are subject to ancillary regulation like maintaining a safe workplace, paying minimum wage and prevailing wage laws, paying their real estate taxes on their headquarters. And if they choose to run a hospital, run a law firm for their legal services, benefit program, run a childcare center, they are subject to local regulation like other providers of those local services, but in every single case, in this court and every lower court decision that I have found, in which courts have upheld state-by-state reporting requirements. It has always been incident to a substantive obligation that the state could impose. And no one contends that Vermont could impose substantive regulations on the claims that Liberty Mutual pays under its employment plan. Now, I want to go to the point that- Mr. Waxman, why was it that you introduced absolutely no evidence of burning in the lower courts here? That is not true, Justice Kagan. We did not introduce any evidence about what it would cost us in dollars and cents to have Blue Cross Blue Shield comply with the Vermont request that is the subject to the subpoena. But we did introduce substantial evidence in the record below, and some of it is included in the joint appendence and all the pages that are extra long folded in about what it is that we have to do, both in Vermont and in the then 15 other states that imposed very, very different reporting obligations. So we didn't put a dollars in cents in, but we did make the lower court, the district court, on its request, very aware of this very substantial burden. And Congress in determining, in deciding to, in exchange for blanket federal regulation of these fostered national plans to grant a very broad preemption provision that says this is going to be federal regulation- What about the Congress? What about the Congress point for you that I was making before? The number that jumped out from the page is the 93 million people this affects. Now that's a huge number, and therefore the risk of conflicting regulations is serious. It's in raising costs, that's for you. But they say it hasn't been shown yet, so I ask you, if it does come about, if it should come about, and you lost this case, why can't your clients go right to the Department of Labor, whose regulations I've read, or possibly ACCA, and say we want you to impose a uniform national data collection system, or the equivalent, put limits, and then preempt the conflicting state limits. Now it may be other members of the court do not agree with this approach, but I've written the case, Metro Medi, where I think the agencies have a lot of power there. And I think they have more capacity to decide this kind of thing than a group of judges. So what about that for you? Justice Breyer, a couple of points. First, in the lower court and in this court, neither party on the other side has disputed what I think is the self-evident proposition that the Department of Labor, and now the Department of Labor, and the Department of Health and Human Services absolutely have the statutory authority under ERISA to impose the kind of record keeping and reporting requirements that Vermont and now 17 or 19 other states do. They have never disavowed that, the SG's brief at both the invitation stage and the merit stage sort of coily suggests that that's right. Well, that sounds like a one-size-fits-all solution, and there's some value to states being able to think about their own health care needs and to think about what things they want. So again, let's go back to this burden, because it is a very intuitive idea that you have on your side, 50 different states, that's a lot of money. But I guess I wonder why it is a lot of money. I mean, as I understand what's going on here, that all the data that's being requested is data that Blue Cross Blue Shield generates anyway, that all the data that's being requested is data that Blue Cross Blue Shield reports for other people. That really, this is a formatting question, even with respect to the wide variety of states, that the states have started getting their formatting more uniform. So I mean, you know, you can say it's 93 million people, but in the end, what's the cost? Oh. And why don't you have it in the record? Okay. There is not a, with respect to burden, Congress enacting the preemption provision, and there we've cited to the court, place after place in the conference reports, the House reports, the statements of the sponsors, the recognition in repealing the Disclosure Act, which set a reporting, a national reporting floor, and allowed the states to add onto it, and record evidence before Congress that small plans were spending up to 40 percent of their entire assets on state reporting. Congress made the determination that this court has reflected in many, many of its decisions, including Eglhoff, that the very fact that there could be 50 different state regulations is the burden that the preemption provision is designed to address. And the notion that- We know, Mr. Waxman, that Blue Cross is providing this information with respect to individuals that its own plans ensure, and we're told that it is providing the information for all of our self-insured, erissa plans, who didn't make this objection. So, do we know at least what is the burden of providing that information for the other self-insured erissa plans that Blue Cross is providing the information for? Justice Ginsburg, the Blue Cross Blue Shield Association has actually filed a brief in this case, and it explains, at great detail, as does the brief of the multi-employer plans, which like Liberty Mutual, operate in 50 states, about the burden, about the fact that Blue Cross Blue Shield doesn't have all this information in the normal course. The multi-employer plans don't have it, and Blue Cross Blue Shield, as a third party administrator, has told this court just exactly how burdensome and how expensive it is. Of course, they could do it for Liberty Mutual in Vermont. The only question is how much it's going to cost and how much they're going to charge. But look, for example, since this litigation became the Commonwealth of Massachusetts has now told Liberty Mutual that it wants reporting under its APCD statute. And as we recount at page 36 of our brief, their regulations require, among other things, the premiums, the plan charges, its actuarial assumptions, the summary of its plan designs, the plan's reserves, its surplus, its provider payments, its provider levels, and information about prismetical procedures whose claims are denied. And the chart that we submit in the district court reflects the wide variation in states. The burden that Congress foresaw is coming to play before our very eyes as states, more and more states, adopt these mandatory plans. Is that information that the laundry list you went through? Is that already available at Blue Cross Blue Shield and being reported somewhere else? No, it is not. Absolutely not. And the Blue Cross Blue Shield Association, Amicus Brief, reports that. The multi-employer plan brief reports that they only had, that their plans generally have about 70 to 80 percent of the information that's required by any one of these states. And to go to, I think it was Justice Breyer's hypothetical, look, the same rules that apply here are going to apply to pension plans. And the state of Vermont, like many other states now, is concerned not just about health care costs and delivering good health care outcomes, but it's concerned about the financial well-being of its senior citizens. And in fact, they've asked the Department of Labor to permit states to operate their own or reception plans for their residents. Now, they could pass a database statute that says we're really concerned about whether elder leave, you know, Vermonters are going to have enough money in their elder years. And we know that 93 million people are covered by employer pension plans. And we just want you to report, you can pay whatever you want, but we want you to keep records and report to us about what your plan is and how much money people are going to have when they retire

. So I mean, you know, you can say it's 93 million people, but in the end, what's the cost? Oh. And why don't you have it in the record? Okay. There is not a, with respect to burden, Congress enacting the preemption provision, and there we've cited to the court, place after place in the conference reports, the House reports, the statements of the sponsors, the recognition in repealing the Disclosure Act, which set a reporting, a national reporting floor, and allowed the states to add onto it, and record evidence before Congress that small plans were spending up to 40 percent of their entire assets on state reporting. Congress made the determination that this court has reflected in many, many of its decisions, including Eglhoff, that the very fact that there could be 50 different state regulations is the burden that the preemption provision is designed to address. And the notion that- We know, Mr. Waxman, that Blue Cross is providing this information with respect to individuals that its own plans ensure, and we're told that it is providing the information for all of our self-insured, erissa plans, who didn't make this objection. So, do we know at least what is the burden of providing that information for the other self-insured erissa plans that Blue Cross is providing the information for? Justice Ginsburg, the Blue Cross Blue Shield Association has actually filed a brief in this case, and it explains, at great detail, as does the brief of the multi-employer plans, which like Liberty Mutual, operate in 50 states, about the burden, about the fact that Blue Cross Blue Shield doesn't have all this information in the normal course. The multi-employer plans don't have it, and Blue Cross Blue Shield, as a third party administrator, has told this court just exactly how burdensome and how expensive it is. Of course, they could do it for Liberty Mutual in Vermont. The only question is how much it's going to cost and how much they're going to charge. But look, for example, since this litigation became the Commonwealth of Massachusetts has now told Liberty Mutual that it wants reporting under its APCD statute. And as we recount at page 36 of our brief, their regulations require, among other things, the premiums, the plan charges, its actuarial assumptions, the summary of its plan designs, the plan's reserves, its surplus, its provider payments, its provider levels, and information about prismetical procedures whose claims are denied. And the chart that we submit in the district court reflects the wide variation in states. The burden that Congress foresaw is coming to play before our very eyes as states, more and more states, adopt these mandatory plans. Is that information that the laundry list you went through? Is that already available at Blue Cross Blue Shield and being reported somewhere else? No, it is not. Absolutely not. And the Blue Cross Blue Shield Association, Amicus Brief, reports that. The multi-employer plan brief reports that they only had, that their plans generally have about 70 to 80 percent of the information that's required by any one of these states. And to go to, I think it was Justice Breyer's hypothetical, look, the same rules that apply here are going to apply to pension plans. And the state of Vermont, like many other states now, is concerned not just about health care costs and delivering good health care outcomes, but it's concerned about the financial well-being of its senior citizens. And in fact, they've asked the Department of Labor to permit states to operate their own or reception plans for their residents. Now, they could pass a database statute that says we're really concerned about whether elder leave, you know, Vermonters are going to have enough money in their elder years. And we know that 93 million people are covered by employer pension plans. And we just want you to report, you can pay whatever you want, but we want you to keep records and report to us about what your plan is and how much money people are going to have when they retire. Every single dollar. The why do you do this? Well, every- I can't you, I can't you simply go. And the statute says, 1143A1, the statute says that the Secretary of Labor and the authorities brought in these as authority to undertake surveys and collect, compile, analyze, publish date information and statistics on welfare plans. Okay? That's a risk of welfare plans. So you go to them. Well, and you say, DOL, we want you to promulgate a reg that says you will collect some of this information. But even if you collect, don't collect at all, you let the states collect the rest. Just now, they can prevent it from being burdensome. Justice Breyer, I know how exciting it is to get in the middle of a jurisprudential debate between you and Justice Scalia. I don't see this as not jurisprudential. I'm my fingers are tingling at the prospect. I am not sure. I am not sure that the Department of Labor has the regulatory authority to essentially excuse the preemption provision. But, and you don't have to just go to the provision of a RISID that you quoted. In 1024A2B of RISID, it authorizes the Secretary of Labor to require the production of, quote, any information or data from an RISID plan, where he finds that such data or information is necessary to carry out the purposes of this subchapter and, adverting to Justice Alito's comments, in the ACA, the Secretary has the authority to require the production of from plans of, quote, any other information as determined appropriate by the Secretary. So, the notion that preemption here is sort of like an, operates like an accordion. If the Department of Labor has the authority to get it but hasn't chosen to exercise, it's not preempted. But if they did promulgate a regulation, either of your color or Justice Scalia's color, that it would be preempted, it is a crazy notion. Are you might think this is not saying, but what I'm, way I'm seeing it here, is there are two competing problems. One is they should be able to get information in the States. But two, there is a problem of burden. And I think that there are probably 100 or 200 people in Department of Labor and HHS that could write rags that reconcile those problems and allow both. But I can't because I'm a judge. So what I'm trying to figure out is how to interpret this statute in a way that achieves those objectives

. Every single dollar. The why do you do this? Well, every- I can't you, I can't you simply go. And the statute says, 1143A1, the statute says that the Secretary of Labor and the authorities brought in these as authority to undertake surveys and collect, compile, analyze, publish date information and statistics on welfare plans. Okay? That's a risk of welfare plans. So you go to them. Well, and you say, DOL, we want you to promulgate a reg that says you will collect some of this information. But even if you collect, don't collect at all, you let the states collect the rest. Just now, they can prevent it from being burdensome. Justice Breyer, I know how exciting it is to get in the middle of a jurisprudential debate between you and Justice Scalia. I don't see this as not jurisprudential. I'm my fingers are tingling at the prospect. I am not sure. I am not sure that the Department of Labor has the regulatory authority to essentially excuse the preemption provision. But, and you don't have to just go to the provision of a RISID that you quoted. In 1024A2B of RISID, it authorizes the Secretary of Labor to require the production of, quote, any information or data from an RISID plan, where he finds that such data or information is necessary to carry out the purposes of this subchapter and, adverting to Justice Alito's comments, in the ACA, the Secretary has the authority to require the production of from plans of, quote, any other information as determined appropriate by the Secretary. So, the notion that preemption here is sort of like an, operates like an accordion. If the Department of Labor has the authority to get it but hasn't chosen to exercise, it's not preempted. But if they did promulgate a regulation, either of your color or Justice Scalia's color, that it would be preempted, it is a crazy notion. Are you might think this is not saying, but what I'm, way I'm seeing it here, is there are two competing problems. One is they should be able to get information in the States. But two, there is a problem of burden. And I think that there are probably 100 or 200 people in Department of Labor and HHS that could write rags that reconcile those problems and allow both. But I can't because I'm a judge. So what I'm trying to figure out is how to interpret this statute in a way that achieves those objectives. How to interpret this statute is to say that in exchange for blanket Federal regulation of these plans, now augmented in the context of health care plans by the Affordable Care Act, the, by the Federal Government, the States are preempted from regulating the core functions of what an Arisa plan does. And there is nothing more core than the payment of benefits. If the State is attempting to regulate whether it's by substantively regulating or imposing a record keeping or reporting obligation about the very activity that defines it as an Arisa plan, the payment of benefits that State law necessarily relates to because it has a connection with an Arisa plan. And frankly, it's pretty ironic that the petitioner and the government claim on the one hand that it is so important to get this information from these plans because 60% of all citizens in the United States get their health care from these self-funded plans and yet requiring them to keep the particular records that the State wants and to report it on a quarterly, annually or monthly basis has no relation to or connection with the plan. I don't understand how both of those thoughts can in here at the same time. I guess I just don't understand this argument. I mean, I understand completely that there should be some restriction on overly burdensome state regulations of whatever kind. It could be taxes, it could be daycare, it could be anything. But why is it that this regulation falls in a different category than taxes or child care or anything else? Because the State here clearly is not attempting to and is not regulating payment of benefits. It's doing something that has an effect on your operations, no doubt. But the State is operating in a completely separate area for completely separate purposes in a way that does not Trump conflict with or anything else, the choices that Arisa has made as to payment of benefits. I want to come to the end and dispute that premise that you, the end of your question. But if you look at this Court's cases that have set about to evaluate the burden or at least included as in the last section of travelers, a section that says, of course, if this were terribly burdensome, it might be another question. Those are cases and it's travelers dealing him and Dubuono. We all agree on that. Those were all cases in which there was a burden being placed on an entity that wasn't in travelers, it was hospitals, in Dubuono, what was hospitals, in dealing him, it was apprenticeship programs, all of which affected the price that Arisa plans might have to pay to get benefits or services from those kinds of providers. And so it took several sentences in each of those several paragraphs, in each of those opinions, even to explain how putting a tax on the non-blueprocess insurance plans in travelers or respecting the prevailing wage rate in California actually had an effect on any Arisa plan anyway, because they weren't regulation of the plans per se. They were indirect regulations. And when the regulation is indirect, that is, it is not a regulation that is directed at the very activity that makes the plan an Arisa plan. You do look at burden and indirect regulation obviously can occur, but if, as the Court explained in the last section of travelers, if it's too burdensome, it might be preemptive. But where the regulation is direct, where the State is requiring reporting, because the Self-Inchure Plan is engaged in the very activity that brings it under Arisa, that qualifies it as an Arisa plan, that obviously relates to and has a connection with the plan. And it's the same. The State simply cannot have an all-payer database that that's out because Arisa precludes it, even though it's going to leave a big hole in the information that the State has about that health care being given to its citizens. I don't think that that's it

. How to interpret this statute is to say that in exchange for blanket Federal regulation of these plans, now augmented in the context of health care plans by the Affordable Care Act, the, by the Federal Government, the States are preempted from regulating the core functions of what an Arisa plan does. And there is nothing more core than the payment of benefits. If the State is attempting to regulate whether it's by substantively regulating or imposing a record keeping or reporting obligation about the very activity that defines it as an Arisa plan, the payment of benefits that State law necessarily relates to because it has a connection with an Arisa plan. And frankly, it's pretty ironic that the petitioner and the government claim on the one hand that it is so important to get this information from these plans because 60% of all citizens in the United States get their health care from these self-funded plans and yet requiring them to keep the particular records that the State wants and to report it on a quarterly, annually or monthly basis has no relation to or connection with the plan. I don't understand how both of those thoughts can in here at the same time. I guess I just don't understand this argument. I mean, I understand completely that there should be some restriction on overly burdensome state regulations of whatever kind. It could be taxes, it could be daycare, it could be anything. But why is it that this regulation falls in a different category than taxes or child care or anything else? Because the State here clearly is not attempting to and is not regulating payment of benefits. It's doing something that has an effect on your operations, no doubt. But the State is operating in a completely separate area for completely separate purposes in a way that does not Trump conflict with or anything else, the choices that Arisa has made as to payment of benefits. I want to come to the end and dispute that premise that you, the end of your question. But if you look at this Court's cases that have set about to evaluate the burden or at least included as in the last section of travelers, a section that says, of course, if this were terribly burdensome, it might be another question. Those are cases and it's travelers dealing him and Dubuono. We all agree on that. Those were all cases in which there was a burden being placed on an entity that wasn't in travelers, it was hospitals, in Dubuono, what was hospitals, in dealing him, it was apprenticeship programs, all of which affected the price that Arisa plans might have to pay to get benefits or services from those kinds of providers. And so it took several sentences in each of those several paragraphs, in each of those opinions, even to explain how putting a tax on the non-blueprocess insurance plans in travelers or respecting the prevailing wage rate in California actually had an effect on any Arisa plan anyway, because they weren't regulation of the plans per se. They were indirect regulations. And when the regulation is indirect, that is, it is not a regulation that is directed at the very activity that makes the plan an Arisa plan. You do look at burden and indirect regulation obviously can occur, but if, as the Court explained in the last section of travelers, if it's too burdensome, it might be preemptive. But where the regulation is direct, where the State is requiring reporting, because the Self-Inchure Plan is engaged in the very activity that brings it under Arisa, that qualifies it as an Arisa plan, that obviously relates to and has a connection with the plan. And it's the same. The State simply cannot have an all-payer database that that's out because Arisa precludes it, even though it's going to leave a big hole in the information that the State has about that health care being given to its citizens. I don't think that that's it. All the case, Justice Ginsburg, and I don't want to be misunderstood about this. The State of Vermont, just to take one example, the database statute authorizes the relevant secretary to obtain this information from everybody, not only who pays for health care in Vermont, but the hospitals and clinics that provide it. But the Secretary, the executive official has chosen not to require that information from hospitals and clinics and doctors in Vermont. There is also no doubt that if all-payer claims databases so badly need the information from self-funded plans and it turns out that the Self-funded plan, a significant number of self-funded plans say no, that's preempted. The federal government has all the authority it needs to get that information and require that that information be provided, either to the Secretary and then to the States or directly to the States. And in fact, they can do what often happens in areas of field preemption and express preemption, which is to make it worth the plan's while. You know, they can offer all sorts of benefits to self-employed plans to provide this information if it's so important. And what's interesting when we're talking about what is or isn't in the record in this case is no explanation whatsoever from the State of Vermont at any stage as to why they haven't requested the actual providers of these health care services to provide the information and that it is inadequate. I mean, the only exchange I can recall is in the second circuit oral argument transcript, which is recorded and discussed in Judge Straub's dissenting opinion, the State was asked, you know, look how important is it to get the district judge? I think it was the district. Well, as you're explaining this, it just seems to me as much easier to ask the plan provider than ask 15 doctors in one small town and 50 others and all the patients. You know, unless I misunderstand your plan, it seems to me as much easier. It perhaps it's easier, but here's the point, and this is the insight of the Eurusopreemption provision. The hospitals in Vermont, the clinics in Vermont, the medical practices in Vermont are not subject to varying regulation in 50 different states. They operate locally. They're subject to state regulation. Here, we're talking about plans that Congress wanted to encourage that would do something new that would provide health care benefits and other employee benefits on a national basis. And in order to foster that, to subject them to a single set of reporting, record keeping, and regulatory obligations. And that, it seems to me, is the insight of Eurissa, and it was the bargain that Eurissa plainly struck. I simply noted in response to Justice Ginsburg's question that the State statute gives them the authority to do it. There aren't that many hospitals in Vermont. They already have all the information about what services are aren't being provided. The State could have said, no, no, we absolutely can't get by without this. But the representation at oral argument in front of the judge, which has also been transcribed and is in the record, the State, the lawyer representing the State, the judge was sort of trying to settle this case and said, you know, how much do you really need this information? And the response was, we don't really need it. This is just a couple of employees

. All the case, Justice Ginsburg, and I don't want to be misunderstood about this. The State of Vermont, just to take one example, the database statute authorizes the relevant secretary to obtain this information from everybody, not only who pays for health care in Vermont, but the hospitals and clinics that provide it. But the Secretary, the executive official has chosen not to require that information from hospitals and clinics and doctors in Vermont. There is also no doubt that if all-payer claims databases so badly need the information from self-funded plans and it turns out that the Self-funded plan, a significant number of self-funded plans say no, that's preempted. The federal government has all the authority it needs to get that information and require that that information be provided, either to the Secretary and then to the States or directly to the States. And in fact, they can do what often happens in areas of field preemption and express preemption, which is to make it worth the plan's while. You know, they can offer all sorts of benefits to self-employed plans to provide this information if it's so important. And what's interesting when we're talking about what is or isn't in the record in this case is no explanation whatsoever from the State of Vermont at any stage as to why they haven't requested the actual providers of these health care services to provide the information and that it is inadequate. I mean, the only exchange I can recall is in the second circuit oral argument transcript, which is recorded and discussed in Judge Straub's dissenting opinion, the State was asked, you know, look how important is it to get the district judge? I think it was the district. Well, as you're explaining this, it just seems to me as much easier to ask the plan provider than ask 15 doctors in one small town and 50 others and all the patients. You know, unless I misunderstand your plan, it seems to me as much easier. It perhaps it's easier, but here's the point, and this is the insight of the Eurusopreemption provision. The hospitals in Vermont, the clinics in Vermont, the medical practices in Vermont are not subject to varying regulation in 50 different states. They operate locally. They're subject to state regulation. Here, we're talking about plans that Congress wanted to encourage that would do something new that would provide health care benefits and other employee benefits on a national basis. And in order to foster that, to subject them to a single set of reporting, record keeping, and regulatory obligations. And that, it seems to me, is the insight of Eurissa, and it was the bargain that Eurissa plainly struck. I simply noted in response to Justice Ginsburg's question that the State statute gives them the authority to do it. There aren't that many hospitals in Vermont. They already have all the information about what services are aren't being provided. The State could have said, no, no, we absolutely can't get by without this. But the representation at oral argument in front of the judge, which has also been transcribed and is in the record, the State, the lawyer representing the State, the judge was sort of trying to settle this case and said, you know, how much do you really need this information? And the response was, we don't really need it. This is just a couple of employees. This is just one plan, but there's a principle here, and we agree with that. And we also agree with the representations of my friends on the other side, that the question for this court, it has to take account of the possibility, which is the emerging reality, that all 50 States and the District of Columbia and Puerto Rico will have their own mandatory all payer claims databases that will require different things. And if I can just anticipate just a Sotomayor's question reserved for rebuttal to the State of Vermont, our brief explains, and the Blue Cross Blue Shield brief also explains, how there are of the hundreds of data fields that Vermont alone requires. There are dozens of them as to which there is no ICD, whatever the agreed national format is. There are dozens and dozens of them as to which there is no hippostand or no hippogarantee of confidentiality. And this is just one state. If you look, as I said at the Massachusetts APCD statute, which is the only other state that's actually come to Liberty Mutual so far, and look at our discussion of it on page 36, the stuff that they are asking for is so obviously critical to what the plan does. But this information is provided by Blue Cross for some self-insured plans, right? I believe that the record shows that Blue Cross Blue Shield provides this information to Vermont not only on behalf of itself as an insurer, but also some other. And do we know what costs Blue Shield then passes on to those other self-insured plans? We don't know it. We were not able to get it from Blue Cross at the time the case was before the district judge. But in any event, as the Chief Justice's question suggests, this issue doesn't end at Vermont. It has to take account of a burden that Congress was very, very aware of. It was very cognizant of the regime under the Repeal Disclosure Act and the costs of plans that are trying to be national plans, complying with 50 different state regulations. And I really commend to the court the Amicus brief filed by the multi-employer plans in this case. These are plans that are essentially union-sponsored plans. They are not fancy plans. Every dollar that they have to spend, gathering the data that each state, that different states say they have to have, comes directly out of the benefits that they can pay. Just as if Vermont decides next week, if it wins this case, that it wants to get information about pension plans and how they're being administered and what benefits are being provided and not provided, those are all 100% self-funded plans. If my employer has to provide all that information, that is coming out of my 401k benefits. Mr. Waxman, could a state pass a tax law that requires information about pension disbursements, about claim payments, about assets held in trust? Could a state do that? I don't think that a state, when you say requested information or imposing a tax. A tax law that requires information of various kinds. I don't think a state can impose a tax on benefits that are picked. Not impose a tax that requires information in order to ensure that the state is taxing the right things

. This is just one plan, but there's a principle here, and we agree with that. And we also agree with the representations of my friends on the other side, that the question for this court, it has to take account of the possibility, which is the emerging reality, that all 50 States and the District of Columbia and Puerto Rico will have their own mandatory all payer claims databases that will require different things. And if I can just anticipate just a Sotomayor's question reserved for rebuttal to the State of Vermont, our brief explains, and the Blue Cross Blue Shield brief also explains, how there are of the hundreds of data fields that Vermont alone requires. There are dozens of them as to which there is no ICD, whatever the agreed national format is. There are dozens and dozens of them as to which there is no hippostand or no hippogarantee of confidentiality. And this is just one state. If you look, as I said at the Massachusetts APCD statute, which is the only other state that's actually come to Liberty Mutual so far, and look at our discussion of it on page 36, the stuff that they are asking for is so obviously critical to what the plan does. But this information is provided by Blue Cross for some self-insured plans, right? I believe that the record shows that Blue Cross Blue Shield provides this information to Vermont not only on behalf of itself as an insurer, but also some other. And do we know what costs Blue Shield then passes on to those other self-insured plans? We don't know it. We were not able to get it from Blue Cross at the time the case was before the district judge. But in any event, as the Chief Justice's question suggests, this issue doesn't end at Vermont. It has to take account of a burden that Congress was very, very aware of. It was very cognizant of the regime under the Repeal Disclosure Act and the costs of plans that are trying to be national plans, complying with 50 different state regulations. And I really commend to the court the Amicus brief filed by the multi-employer plans in this case. These are plans that are essentially union-sponsored plans. They are not fancy plans. Every dollar that they have to spend, gathering the data that each state, that different states say they have to have, comes directly out of the benefits that they can pay. Just as if Vermont decides next week, if it wins this case, that it wants to get information about pension plans and how they're being administered and what benefits are being provided and not provided, those are all 100% self-funded plans. If my employer has to provide all that information, that is coming out of my 401k benefits. Mr. Waxman, could a state pass a tax law that requires information about pension disbursements, about claim payments, about assets held in trust? Could a state do that? I don't think that a state, when you say requested information or imposing a tax. A tax law that requires information of various kinds. I don't think a state can impose a tax on benefits that are picked. Not impose a tax that requires information in order to ensure that the state is taxing the right things. In other words, we want to tax the benefits that you're getting. Do you think that a state tax law can't require any information about any of the things that Arissa does? That the plans do, pension disbursements, assets, claim payments, nothing? I think not. I don't think this case turns on it, but thinking about it, if the state could say, look, we just want to know all the benefits that you pay to every one of our residents. I think that would be preempted. As I say, that's not what's going on here. Even if I'm wrong about it, it seems to me that this is quite different. There's a lot of discussion on the other side of this just requires a press of a button, and all the information goes, and our brief goes on for pages and pages. And the other Amikis briefs show how that is so far from true. In order to comply with these, it's not just a question of saying, oh yes, we paid Seth Waxman $300 in benefits last year. This requires that we keep records that we don't keep, and that we display them and provide information in ways that we don't, and that differ from one state to another. And for those reasons, unless the court has questions, I will submit that the judgment should be affirmed. Thank you, Council. Ms. Icy, you have three minutes remaining. Thank you. I'd like to begin with just a sort of my worst question about the standardized data, because I think that ties in nicely with many questions from the court about the question of Berg. So the way that electronic claims transactions work is not something that the state of Vermont invented. It's part of HIPAA. It's a federal regulation called the electronic transaction rule, and it sets standardized coding and formatting requirements for the transaction between the payer and the provider. And we don't even have to look to the regulation for that, although that's in 45 CFR Part 160, but it's actually in the record at Joint Appendix 66. This is the agreement between Blue Cross and Liberty Mutual, which says that Blue Cross shall be capable of transmitting electronic data for which transaction standards have been promulgated in compliance with HIPAA electronic transactions rule, and shall to the extent possible transmit electronic data in accordance with that rule. That is how third-party administrators work, and that is why it self-insured plans nearly always have a third-party administrator, which is typically a health insurer, to process claims, because although it may look on the surface as though these reporting requirements and the data collection seems very complicated, it's complicated not because of anything Vermont has done. It's because there is a standardized national standard for how this data is collected, which is fairly specific, fairly detailed, and they're already doing it, and it is generating a pool of tremendously helpful data that has incredible potential to help states and the federal government figure out ways to bend the cost curve and improve the provision of health care delivery to everyone in the country. The Affordable Care Act expressly contemplated that states would do this kind of experimentation

. In other words, we want to tax the benefits that you're getting. Do you think that a state tax law can't require any information about any of the things that Arissa does? That the plans do, pension disbursements, assets, claim payments, nothing? I think not. I don't think this case turns on it, but thinking about it, if the state could say, look, we just want to know all the benefits that you pay to every one of our residents. I think that would be preempted. As I say, that's not what's going on here. Even if I'm wrong about it, it seems to me that this is quite different. There's a lot of discussion on the other side of this just requires a press of a button, and all the information goes, and our brief goes on for pages and pages. And the other Amikis briefs show how that is so far from true. In order to comply with these, it's not just a question of saying, oh yes, we paid Seth Waxman $300 in benefits last year. This requires that we keep records that we don't keep, and that we display them and provide information in ways that we don't, and that differ from one state to another. And for those reasons, unless the court has questions, I will submit that the judgment should be affirmed. Thank you, Council. Ms. Icy, you have three minutes remaining. Thank you. I'd like to begin with just a sort of my worst question about the standardized data, because I think that ties in nicely with many questions from the court about the question of Berg. So the way that electronic claims transactions work is not something that the state of Vermont invented. It's part of HIPAA. It's a federal regulation called the electronic transaction rule, and it sets standardized coding and formatting requirements for the transaction between the payer and the provider. And we don't even have to look to the regulation for that, although that's in 45 CFR Part 160, but it's actually in the record at Joint Appendix 66. This is the agreement between Blue Cross and Liberty Mutual, which says that Blue Cross shall be capable of transmitting electronic data for which transaction standards have been promulgated in compliance with HIPAA electronic transactions rule, and shall to the extent possible transmit electronic data in accordance with that rule. That is how third-party administrators work, and that is why it self-insured plans nearly always have a third-party administrator, which is typically a health insurer, to process claims, because although it may look on the surface as though these reporting requirements and the data collection seems very complicated, it's complicated not because of anything Vermont has done. It's because there is a standardized national standard for how this data is collected, which is fairly specific, fairly detailed, and they're already doing it, and it is generating a pool of tremendously helpful data that has incredible potential to help states and the federal government figure out ways to bend the cost curve and improve the provision of health care delivery to everyone in the country. The Affordable Care Act expressly contemplated that states would do this kind of experimentation. It authorized the federal government to provide Medicare claims data to the states. It authorized, it created the Center for Medicare and Medicaid Innovation, which then authorized states to experiment, to develop new models for delivery, which then need to be tested and evaluated. The United States has explained in its brief that those programs depend upon the collection of all payer data, which is something only the states are doing. The promise here is enormous, and the fact and the loss of this data to the plans would be tremendous. I would like to address briefly one issue that my friend raised, which is the question of provider data. Vermont does, in fact, collect provider data, and we've collected it for a very long time. It's called hospital discharge data, and it was one of the first data sets that researchers looked to, but it's not as helpful as all payer data, and here's why. Hospitals don't have information that tracks care across an episode of care. If someone has their knee replaced, it starts with a doctor's visit, their surgery, there's an anesthesiologist, there's a state of rehab facility, there's follow-up physical therapy, and if you're trying to compare outcomes and cost for a procedure like that, it's the payer. The centralized payer is just Kennedy said who has all that information, there's only a few of them. That is the real power of the data, and it's not in the hospital data. Thank you. Thank you, counsel. The case is submitted.

We'll hear argument this morning in case 14181 go bay versus Liberty Mutual Insurance Company. Ms. A.C.? Mr. Chief Justice and may it please the court. Under. Under the principles of this court adopted in travelers, Vermont's collection of healthcare data is not preempted. The database statute does not affect a risk of plans in any way that undermines a risk of core objectives. Does not require plans to offer benefits, affect the financing or fiduciary standards for plans, or change the way that plans administer benefits to their members. Vermont is merely collecting standardized data that Blue Cross necessarily generates and already provides to the state for itself and other entities. It hasn't been argued by Liberty, and we can ask them about that, that this is burdensome that it might be different from state to state and so forth. And it may be that this sounds more in conflict preemption than statutory preemption. But can you just answer a few questions? Does this apply to people that are not residents in Vermont, but have been treated in Vermont, and does it also apply to people that are outside of, that are Vermonters, but are treated outside of Vermont? I mean, what's the universe to whom this applies? And it seems to me that that would be difficult for plans to figure out. As implemented by the Board, Your Honor, the database requirements apply to Vermonters receiving healthcare services from a covered insurer, regardless of their locations, or both inside Vermont and outside Vermont, if it's paid for by a covered insurer. It does not, the Board has chosen not to require data from non-Vermont residents receiving care in Vermont. With respect to the burden, and with respect to the burden issue, I can't hear you. Let me say it's chosen to, does the statute authorize it to? The statute authorizes it to do either, Your Honor. We ought to consider that, don't you think? I don't, I don't believe so, Your Honor, because the program that has been challenged here by Liberty Mutual is the program as it has been implemented by the Board, and that is how it has been implemented. And this kind of generally applicable health care regulation is not preempted for the reasons that this Court has expressed in a series of decisions, including travelers, DiBono, Mackie, and Dillingham. One of the points that Justice Kennedy suggested that states can have different reporting requirements, so it's a little bit like Ego Hoff in that respect, that if there were uniform requirements, that would be less burdensome. But if each state has its own specifications, and that becomes burdensome and costly. Your Honor, two responses to that. The first is that there is simply no evidence in this record that there's any cognizable burden on the third-party administrators who are health care insurers, who generate this data and are providing it already in their capacity as insurers. Second, certainly some states may choose to do these programs differently, but as several of the Amicus briefs explain, including the Brief from the National Association of Health Data Organizations, these are carefully designed programs that track the electronic transaction rule under HIPAA that provides national standards for electronic claims transactions. Suppose states had different reporting requirements, and the plan showed, I don't think so, but suppose they showed, that this was burdensome. Does that affect the analysis of the preemption question? Only in this way, Your Honor, I think that the courts holding in travelers can be distilled to basically three questions. The first question is, does the state law specifically and directly regulate Erissa plans only, that's not an issue in this case, it does not. The second question is whether the state is regulating in an area that Congress reserved to the states, or is regulating in an area with which Erissa is principally concerned. And here the state is engaging in classic healthcare regulation, so on that question the answer is no. And then travelers leaves open. You could say that it's engaging healthcare regulation, you could also say it is engaged in data collection. And if you say the latter, that is something that Erissa covers. Your Honor, Erissa governs planned financial reporting and planned disclosures to the members. Primarily, the reporting requirements that Erissa sets out are about the plan finances, actuarial statements, statements of audited financial statements, information about how the plan is, about the degree of the plan's financial soundness. And nothing that Vermont is doing has anything to do. That's not true. So, after the Affordable Care Act, doesn't the Affordable Care Act include in Erissa a section authorizing the Secretary to gather information from plans for the purpose of improving health outcomes? Yes, the Affordable Care Act made a technical amendment to Erissa, which in turn incorporated the acts amendments to the Public Health Services Act. But those do not change the test for Erissa preemption. And they're not part of the plan's annual reporting to the Department of Labor. There's a couple of reasons for that. One is that the Affordable Care Act itself has an almost an anti-preemption provision, a provision that says that the Affordable Care Act only prevents those state laws that prevent the application of the act. Part seven of Erissa also, which has those amendments in it, is not part of Erissa as it was originally passed. That was added by HIPAA. And part seven itself has a provision that says it does not affect the plan. Why does it matter whether it was in Erissa as originally passed? It's in Erissa now. And it is true that there is a sort of an anti-preemption provision, but there is also a provision in the Affordable Care Act that says that the provisions that are added have no effect on the Erissa preemption provision. That's right, Runner. So, what do you make of that? What I make of that is that it does not change the test for preemption either way. And when Congress passed the Affordable Care Act, travelers had been on the books for years. The standard set forth in travelers, which reserved to the state's health care regulation, was understood by travelers, was understood by Congress, and it was not changed. And this program that Vermont has adopted is classic health care regulation. The data that is related. The regulation from Vermont also has laws that govern fiduciaries. So could they have a statute which says all fiduciaries, including fiduciaries, RISSA fiduciaries, must report, fill out the following forms about how they invest their money. Can they do that? They could have a standard for fiduciaries. No, no, no. Can they do just what I said? Is there is that preemptive? It would be preemptive to apply to a resume. Now, suppose instead of that what they say is what we would like is that all fiduciaries of a RISSA plans send us each month a report of all of the benefits under the retirement plan that they have paid to any member. Can they do that? Your Honor, I think the answer that probably depends on the area in which the state is regulating. I said what they are doing is they have their secretary of health and human services that would like to know how wealthy or poor the workers are. So that's what they do. I think that is a close question. You think that is a close question? That is a close question. In other words, I can. And, gee, I see case after case here that says that reporting requirements are a central function. You know, you've read them just as well as I. And it seems to me surprising that they can do that. Isn't that the job of the Labor Department? I think that is primarily the job of the Labor Department. I say that it is not that- There's obviously my question to good answer because you're saying I'm not getting anywhere with this line because I'm going to say what about health care? That's the next question. My actual question I'm driving at is this. You should have the information. I have no doubt about that. But the question is whether you have to go to the Labor Department first or HHS and say we want uniform rules here or whether they have to come to you when the rules of 50 states turn out to be a mess. And you say you want to go first and let them come after me and I think the other side says no. If you want to do what you want to do, go to the Labor Department and get a national rule that gives you large range to get what you want. That's why- And I don't know the answer to that question. That's why I ask it. And you're under the answer to that question is that because this is classic health care regulation for which states are responsible, insurance rate review, budget review, health care research, it is an area in which states are permitted to regulate. And they're permitted to regulate even slightly differently from state to state. And is the Department of Labor the Federal Government agrees with us that this is an area that Arissa leaves to the states even though it involves data collection? Because Arissa cannot possibly have been intended to sweep away all collection of information from plans by states. Congress adopted a deliberately expansive definition of a welfare benefit plan. And Arissa that includes not just the direct provision of medical care but also daycare centers, apprenticeship programs, prepaid legal services. These are all areas in which when plans would act, they would necessarily be providing information to state. I see that argument as to Arissa as originally enacted. But I am very troubled by the fact that it now authorizes the collection of data for the purpose of improving health outcomes, health care outcomes. I don't see how that, unless the anti-preemption provision saves the day. I don't see how that does not undermine your principal argument, which is that Arissa may preempt reporting of financial data and that sort of thing, but it doesn't preempt the collection of data regarding health care. You're on the scope of Arissa's preemption provision in 1144 is governed by what Congress intended when it passed Arissa in 1974. And the later amendments to Arissa regarding group health plans include the language that says does not affect or modify that standard. So this court when it is considering the scope of the areas that Congress left to the states in 1974. I don't see how that can possibly be. If Congress enacted an amendment tomorrow that says one of the core purposes of Arissa is to collect health care information. And here is the health care collecting requirement. You would say, well, that's not preempted because that wasn't the purpose when they enacted the preemption provision originally. I would certainly say that was not preempted if it was added to Part 7, which says that Part 7 does not affect the test for Arissa preemption in 1144. Well, saying it doesn't affect the test is quite different from saying that nothing changes. The test remains the same, but now that test is applied to collection which the Labor Department is itself conducting or is itself authorized to conduct. That's not changing the test. It's simply changing the facts to which the test has been applied or the law to which the test has been applied. It would change the test, Your Honor, because if Arissa was now considered to have a broader expansive scope that intruded into health care, that would change this court's settled precedent in travelers in De Bono. And again, Congress will change the test. And so, the test would still be the same, whether it's a core function of Arissa or not. And it has made it a core function of Arissa. It has not made it a core function of Arissa. It has, there were, it's the Affordable Care Act's amendment to Arissa. And again, there's also, in addition to Part 7's preemption language, there is the Affordable Care Act's anti-preemption language. And to think that when Congress passed the Affordable Care Act, which contemplated a robust federal state partnership in health experimentation, which included language that authorized the Department of Health and Human Services to provide Medicare- But this is no problem for you. All you have to do is go to DOL or HHS. The state representative says this is what we want to do. Will you please promulgate a regulation, can do it maybe in 90 days or 120 days, which says that this and similar things are fine. And in our opinion, it's not preempted. I think you could do that. That's my opinion. I would maybe only want to think that. But so I think it's just a question of which forms you have to go through. But if we take you and say, and I'm going to ask, I'm really asking the government this question, because I don't see why they are in your side. And they'll have an answer to that. You see, I want to find out. But what I want to find out is this, the fact that I saw was 93 million people have these plans. And if 93 million people have these plans, there can be 50 states with 50 different sets of regulations imposing a huge financial burden upon health care. And were that to happen, suddenly all the people were trying to help under this plan, will find themselves much worse off and purely for bureaucratic reasons. If I take their side of it, I can have some assurance that the purpose of Congress in these statutes will be fulfilled because there will not be unnecessary conflicting reporting requirements, which sound like nothing, but they're very expensive to actually implement. Now, that's my basic problem. It's the same question for you, for the government, and for the other side, but the other side will agree with the way I put the question. And if I may try responding this way, Your Honor, the notion that it's more efficient for the Department of Labor to collect a subset of standardized. They're not going to collect anything. All they're going to say is in our reg, you have permission to go and impose these requirements. But by having to go to them first, we prevent the conflicting requirements of 50 different systems. And it's possible that they may be able to do that. I'm not sure where that authority would come up with this. It isn't clear that they're able to do that. I mean, it isn't clear that a federal agency can eliminate preemption by simply saying, okay, you can go ahead and do it. Even though it's a live-room. Otherwise, preempted under this statute, we say it's okay. I think that's not a clear question. I think it's not clear that they can do that. And again, I think the question for the court is not what the Department of Labor can do, but what Congress reserved to the Senate. I know your time is running out, but consider two cases. Case one, Vermont is the only state that requires this. Case two, 50 states requirement that require this, and it's all different in its burdens of same preemption analysis. Yes, Your Honor. Same preemption analysis as in travelers in De Bono and Matt. Same result. Yes, Your Honor. Same result. As in Mackie where this court held that Gart State Garnishment litigation procedures as applied to the very benefits that the plan was paying out were permissible. Clearly, those were going to vary state by state and involve the plans in state by state regulation. On the rebuttal, because I don't want to eat more of your time. Would you go through the more careful, more slowly? The fact that this information is all electronic, all of it already set out in the HIPAA regulations. And so it's just a question of, and now all reporting is being done in one system. I see D10, right? Everybody has to use the one computer system. I am not actually familiar with that, but I'll say that. Thank you. If I may reserve my remaining time. Thank you, Council. Thank you. Mr. Bash. Mr. Chief Justice, and may it please the court, I would like to start if I could with Justice Breyer's questions, and then hopefully I can move on to Justice Alito's questions about the ACA and Justice Kennedy's questions about the burden here. Let me set out how we see the interaction of the preemption framework and record keeping requirements and then turn to what I think DOL's role is here. Both sides agree, essentially, that a RISSA plans can be subject to some reporting requirements, probably many reporting requirements, incident to state laws in other substantive fields. So for example, the solicitor general gave the example of daycare centers. A RISSA plans can run daycare centers. I don't think anyone doubts that you can have all sorts of reporting requirements to make sure the staff is trained, the facilities are safe, and so forth. This court's case in DiBono appelled a tax imposed on employer contributions to an RISSA medical benefit plan that provided the medical benefits directly. And we told the court at the time that that tax had all sorts of reporting requirements. So essentially, the question is here, where to draw the line between reporting requirements that are permissible, and those that are non permissible. As I take Respondents view, it's that there is certain information that is so core to the plan that you simply can't have state law reporting requirements about that information. I don't think that can be right. Take, for example, real property held in trust by a pension plan. DOL requires reporting on that, obviously you need to know the assets the pension plan has. But certainly a state taxing authority can require reporting about that same information to assess the property tax. The same was true with the tax in DiBono. The same is true by the way in Dillingham. That was a case about an RISSA run apprenticeship program. And California law said, you either follow our standards for apprenticeship or you have to pay your higher wage. I mean, that was as core as you get. It was literally the way the apprenticeship program was set up. So I don't think the test can be whether the information is in some sense core to a RISSA. I think the test has to be, is this reporting requirement incident to a law in the field governed by a RISSA, bestying funding, fiduciary duties and so forth, or is it incident to a law in health care or in daycare center regulation? Here, I don't think anyone disputes. This information is used for hospital budget review, for health insurance rate review, for medical research. There's no question that it's incident to classic state health care regulation. Now, why isn't there also a requirement that the law just not be burdensome over a certain level? It is just as Kagan, I think I cut short my test. The first inquiry is, is this incident to a field that a RISSA doesn't govern? I think that's satisfied here. But then there's still another question under travelers, which look to both purpose and effects of whether the effect of the law is so burdensome that effectively frustrates or impedes the design of a RISSA plans or the administration of a RISSA plans. And I think a law like this that imposes reporting requirements on claim could theoretically be that burdensome. And someone in the field. How is that any different than conflict preemption? How does that give any special effect to the statute here? I mean, you could make that argument if there was no preemption provision. Well, I think the way it's different than conflict preemption or at least one way is that if it actually is in the core field governed by a RISSA, I mean, if the State said we just want to make sure these pension plans are well funded. So we're going to ask for reports incident to that role. It would be preempted, even if the requirements weren't particularly burdensome. I mean, the Court has never held that in a specific case, but I think the Court's analysis leans towards that direction. So it could either be within the preempted field, in which case it relates to a RISSA plans and is out, or it could be so burdensome that it effectively frustrates the purpose of a uniform RISSA. The former sounds to me like standard field preemption and the latter like standard conflict preemption. Well, I think there have been, is it all the same? There have been some well-written separate opinions in this area that have been suggested. I don't think, I don't think, I mean, here's what I would say about that. I mean, I know your opinion and opinion of a few other justices have suggested we should shift to field preemption. I think if the Court were to say what we've been doing all along is field preemption, and it makes more sense to try and lead a classifier that way. From the Department of Labor's perspective, that would be fine. I think we would be a little bit concerned if the Court signaled to lower courts in its opinion that it was marking a big shift in its jurisprudence that could destabilize the law. We think- Why aren't you on the other side of the case? That is, I was fine with you until I read a few of these amicus briefs. And then suddenly I saw 93 million people, and there are associations all over the place that are worried about this problem. And they have a big chart where they show the possibilities of conflict. You yourself are worried about conflict. Conflict among states and requirements means money. A lot of money. That's what they say, and that's plausible. So what I want to know is what are you all proposed to do about that in the U.S. government? One thing to do about it, and I've looked up the reg, so maybe just a scale of disagrees, but I'm talking about what I think. All right. The-the-it seems like they would have authority to issue regs either way. Blocking or getting permission first. That's where I ended up, and that's what I wanted your view about. You see what I'm saying? I see Richard said there's two pieces there, whether this actually has a burden, what we could do about it if there was. I didn't mean to suggest we think it has a burden. It's the view of the Department of Justice that the significant burden has not been shown- the Department of Labor that the significant burden has not been shown here. So that's starting premise, we do not agree with that. All I'm saying is that if a party could show that burden, that would raise a substantial preemption question and would be highly relevant in the preemption analysis. So why hasn't that burden been shown? Respondent submitted nothing below. I mean, really, they submitted an Internet fact sheet. There's something very intuitive about their argument, and it's essentially what Justice Kennedy said. It's-when 50 states devise 50 different requirements for this different formatting, different particular information requested. That just all adds up to a lot of hassle, which all adds up to a lot of money. Two points. I mean, first, it seems far less burdensome than state laws this Court has already appelled, or that state laws that I think most people would agree have to be appelled. I mean, the tax or the surcharge in travelers, that was the case where if you bought commercial insurance, you had to pay a surcharge up to 24% more on medical purchases. That's unbelievably burdensome. It surely had reporting requirements associated with it, and having to pay vastly different surchargers in 50 states could be burdensome, too. What this Court's precedents have said, including travelers and Dillingham and DiBono, is that a mere burden is not enough? What has to be shown is that it interferes with the administration of benefits. So in Eaglehof- Well, but a consistent theme in our cases when you say a mere burden is not enough, is that the government wants employers to once set these things up, they don't have to. And two, they want the money to go to benefits, not to go to administrative bureaucracy, expenses. Is it your view in analyzing this question, do we look at what would happen if 50 states adopt different programs, or do we look at just Vermont because Vermont happens to be first? The former. Our view is that you have to contemplate that 50 states could adopt different regimes? Yeah, I think that's right. So you don't think 50 different regimes of reporting is going to require a significant diversion of money away from benefits to administration? Not on this record, Mr. Chief Justice. Recall- What kind of a record do you need to show that? I mean, of course you can't have a record of what 50 states are doing if it's a hypothetical question. Well, I think there's a couple ways Respondent could have made the showing here. I mean, at minimum, Respondent could have had its own third-party administrator come in and say, these reporting requirements are burdensome. This is what we've had to do. We've had to change the way we process claims because they're so burdensome. My suspect they could not have made that showing. Well, we have 20 pages, 26 and 27 of the Blue Cross Blue Shield brief. And there they have a big chart and there are all these organizations out there that are trying like the uniform law commissioners to create uniformity. That's why I say that's why I'm puzzled as to what to do. Well, I suppose to write an opinion that says, even though Blue Cross Blue Shield feels it's a big mess and trying to straighten it out, they didn't make the right record in the Vermont trial court. How do I write that opinion? Going to the chart point, I mean, the chart actually doesn't show conflicting requirements. Most of the counterpoints they have are like not required. I don't think they're conflicting requirements. And even if you look at the end of the Blue Cross Blue Shield brief, they never actually say this isn't. I'm serious. How do I write the opinion? It's supposed it could happen, but it hasn't happened yet. How do I write the opinion? I think the opinion is written like this. One, this is a reporting requirement incident to a field that is not governed by a RISA, health care regulation. It's presumptively valid, but we're going to look and see if Respondent has made a showing that it's so burdensome that it fundamentally changes the way plans are administered or designed. Respondent has not made that showing here. That is how the opinion is written. I mean, this court has never actually said that a burden is so bad that it's preempted even if it operates in a field outside of a RISA. It is suggested in Dicta that is possible, but that is inherently a factual determination. And it's hard to see how the court could reach that conclusion without some factual determination. So we go through at one point, I'll send the 11th State that does this, and it's the 11 different things we say is that a burden. Is that a sufficient burden? I mean, we say no. But then when 30 States do it, maybe it's a different answer. That seems like a very odd preemption analysis. Well, I don't think it should turn on that, Mr. Chief Justice. I do think it's appropriate for a court to consider what if 50 different States impose different requirements like this, but just like 50 different States might have different requirements for daycare centers or for prepaid legal services, that I don't think is the sort of burden. Well, this goes to basic, very comprehensive reporting of data. It's not simply, well, if you run a daycare center, you have to comply with the rules about daycare centers. Of course you do. It's quite different. One of the things a RISA plans do is report data and compile data. And it seems to me that the analysis says, well, daycare centers, you can. That seems a little bit off base. May I respond, Mr. Chief Justice? No. Of course you may. Please. I think that the, I'll try to do in two sentences. I think that the burden here is far less substantial than the burden of complying with state apprenticeship regulations for the way you design the program in Dillingham. Here, most self-insured plans use third-party administrators. And often those third-party administrators are insurance companies that already have the infrastructure in place for reporting requirements as applied to them, which cannot be preempted under RISA. Thank you, Council. Mr. Waxman. Mr. Chief Justice, and may it please the court. A signal goal of RISA enacted in 1974 was to foster employee benefit plans that could operate nationally under nationally uniform rules of administration, first and foremost rules about record keeping and reporting. Now, of course, RISA plans like other regular businesses are subject to ancillary regulation like maintaining a safe workplace, paying minimum wage and prevailing wage laws, paying their real estate taxes on their headquarters. And if they choose to run a hospital, run a law firm for their legal services, benefit program, run a childcare center, they are subject to local regulation like other providers of those local services, but in every single case, in this court and every lower court decision that I have found, in which courts have upheld state-by-state reporting requirements. It has always been incident to a substantive obligation that the state could impose. And no one contends that Vermont could impose substantive regulations on the claims that Liberty Mutual pays under its employment plan. Now, I want to go to the point that- Mr. Waxman, why was it that you introduced absolutely no evidence of burning in the lower courts here? That is not true, Justice Kagan. We did not introduce any evidence about what it would cost us in dollars and cents to have Blue Cross Blue Shield comply with the Vermont request that is the subject to the subpoena. But we did introduce substantial evidence in the record below, and some of it is included in the joint appendence and all the pages that are extra long folded in about what it is that we have to do, both in Vermont and in the then 15 other states that imposed very, very different reporting obligations. So we didn't put a dollars in cents in, but we did make the lower court, the district court, on its request, very aware of this very substantial burden. And Congress in determining, in deciding to, in exchange for blanket federal regulation of these fostered national plans to grant a very broad preemption provision that says this is going to be federal regulation- What about the Congress? What about the Congress point for you that I was making before? The number that jumped out from the page is the 93 million people this affects. Now that's a huge number, and therefore the risk of conflicting regulations is serious. It's in raising costs, that's for you. But they say it hasn't been shown yet, so I ask you, if it does come about, if it should come about, and you lost this case, why can't your clients go right to the Department of Labor, whose regulations I've read, or possibly ACCA, and say we want you to impose a uniform national data collection system, or the equivalent, put limits, and then preempt the conflicting state limits. Now it may be other members of the court do not agree with this approach, but I've written the case, Metro Medi, where I think the agencies have a lot of power there. And I think they have more capacity to decide this kind of thing than a group of judges. So what about that for you? Justice Breyer, a couple of points. First, in the lower court and in this court, neither party on the other side has disputed what I think is the self-evident proposition that the Department of Labor, and now the Department of Labor, and the Department of Health and Human Services absolutely have the statutory authority under ERISA to impose the kind of record keeping and reporting requirements that Vermont and now 17 or 19 other states do. They have never disavowed that, the SG's brief at both the invitation stage and the merit stage sort of coily suggests that that's right. Well, that sounds like a one-size-fits-all solution, and there's some value to states being able to think about their own health care needs and to think about what things they want. So again, let's go back to this burden, because it is a very intuitive idea that you have on your side, 50 different states, that's a lot of money. But I guess I wonder why it is a lot of money. I mean, as I understand what's going on here, that all the data that's being requested is data that Blue Cross Blue Shield generates anyway, that all the data that's being requested is data that Blue Cross Blue Shield reports for other people. That really, this is a formatting question, even with respect to the wide variety of states, that the states have started getting their formatting more uniform. So I mean, you know, you can say it's 93 million people, but in the end, what's the cost? Oh. And why don't you have it in the record? Okay. There is not a, with respect to burden, Congress enacting the preemption provision, and there we've cited to the court, place after place in the conference reports, the House reports, the statements of the sponsors, the recognition in repealing the Disclosure Act, which set a reporting, a national reporting floor, and allowed the states to add onto it, and record evidence before Congress that small plans were spending up to 40 percent of their entire assets on state reporting. Congress made the determination that this court has reflected in many, many of its decisions, including Eglhoff, that the very fact that there could be 50 different state regulations is the burden that the preemption provision is designed to address. And the notion that- We know, Mr. Waxman, that Blue Cross is providing this information with respect to individuals that its own plans ensure, and we're told that it is providing the information for all of our self-insured, erissa plans, who didn't make this objection. So, do we know at least what is the burden of providing that information for the other self-insured erissa plans that Blue Cross is providing the information for? Justice Ginsburg, the Blue Cross Blue Shield Association has actually filed a brief in this case, and it explains, at great detail, as does the brief of the multi-employer plans, which like Liberty Mutual, operate in 50 states, about the burden, about the fact that Blue Cross Blue Shield doesn't have all this information in the normal course. The multi-employer plans don't have it, and Blue Cross Blue Shield, as a third party administrator, has told this court just exactly how burdensome and how expensive it is. Of course, they could do it for Liberty Mutual in Vermont. The only question is how much it's going to cost and how much they're going to charge. But look, for example, since this litigation became the Commonwealth of Massachusetts has now told Liberty Mutual that it wants reporting under its APCD statute. And as we recount at page 36 of our brief, their regulations require, among other things, the premiums, the plan charges, its actuarial assumptions, the summary of its plan designs, the plan's reserves, its surplus, its provider payments, its provider levels, and information about prismetical procedures whose claims are denied. And the chart that we submit in the district court reflects the wide variation in states. The burden that Congress foresaw is coming to play before our very eyes as states, more and more states, adopt these mandatory plans. Is that information that the laundry list you went through? Is that already available at Blue Cross Blue Shield and being reported somewhere else? No, it is not. Absolutely not. And the Blue Cross Blue Shield Association, Amicus Brief, reports that. The multi-employer plan brief reports that they only had, that their plans generally have about 70 to 80 percent of the information that's required by any one of these states. And to go to, I think it was Justice Breyer's hypothetical, look, the same rules that apply here are going to apply to pension plans. And the state of Vermont, like many other states now, is concerned not just about health care costs and delivering good health care outcomes, but it's concerned about the financial well-being of its senior citizens. And in fact, they've asked the Department of Labor to permit states to operate their own or reception plans for their residents. Now, they could pass a database statute that says we're really concerned about whether elder leave, you know, Vermonters are going to have enough money in their elder years. And we know that 93 million people are covered by employer pension plans. And we just want you to report, you can pay whatever you want, but we want you to keep records and report to us about what your plan is and how much money people are going to have when they retire. Every single dollar. The why do you do this? Well, every- I can't you, I can't you simply go. And the statute says, 1143A1, the statute says that the Secretary of Labor and the authorities brought in these as authority to undertake surveys and collect, compile, analyze, publish date information and statistics on welfare plans. Okay? That's a risk of welfare plans. So you go to them. Well, and you say, DOL, we want you to promulgate a reg that says you will collect some of this information. But even if you collect, don't collect at all, you let the states collect the rest. Just now, they can prevent it from being burdensome. Justice Breyer, I know how exciting it is to get in the middle of a jurisprudential debate between you and Justice Scalia. I don't see this as not jurisprudential. I'm my fingers are tingling at the prospect. I am not sure. I am not sure that the Department of Labor has the regulatory authority to essentially excuse the preemption provision. But, and you don't have to just go to the provision of a RISID that you quoted. In 1024A2B of RISID, it authorizes the Secretary of Labor to require the production of, quote, any information or data from an RISID plan, where he finds that such data or information is necessary to carry out the purposes of this subchapter and, adverting to Justice Alito's comments, in the ACA, the Secretary has the authority to require the production of from plans of, quote, any other information as determined appropriate by the Secretary. So, the notion that preemption here is sort of like an, operates like an accordion. If the Department of Labor has the authority to get it but hasn't chosen to exercise, it's not preempted. But if they did promulgate a regulation, either of your color or Justice Scalia's color, that it would be preempted, it is a crazy notion. Are you might think this is not saying, but what I'm, way I'm seeing it here, is there are two competing problems. One is they should be able to get information in the States. But two, there is a problem of burden. And I think that there are probably 100 or 200 people in Department of Labor and HHS that could write rags that reconcile those problems and allow both. But I can't because I'm a judge. So what I'm trying to figure out is how to interpret this statute in a way that achieves those objectives. How to interpret this statute is to say that in exchange for blanket Federal regulation of these plans, now augmented in the context of health care plans by the Affordable Care Act, the, by the Federal Government, the States are preempted from regulating the core functions of what an Arisa plan does. And there is nothing more core than the payment of benefits. If the State is attempting to regulate whether it's by substantively regulating or imposing a record keeping or reporting obligation about the very activity that defines it as an Arisa plan, the payment of benefits that State law necessarily relates to because it has a connection with an Arisa plan. And frankly, it's pretty ironic that the petitioner and the government claim on the one hand that it is so important to get this information from these plans because 60% of all citizens in the United States get their health care from these self-funded plans and yet requiring them to keep the particular records that the State wants and to report it on a quarterly, annually or monthly basis has no relation to or connection with the plan. I don't understand how both of those thoughts can in here at the same time. I guess I just don't understand this argument. I mean, I understand completely that there should be some restriction on overly burdensome state regulations of whatever kind. It could be taxes, it could be daycare, it could be anything. But why is it that this regulation falls in a different category than taxes or child care or anything else? Because the State here clearly is not attempting to and is not regulating payment of benefits. It's doing something that has an effect on your operations, no doubt. But the State is operating in a completely separate area for completely separate purposes in a way that does not Trump conflict with or anything else, the choices that Arisa has made as to payment of benefits. I want to come to the end and dispute that premise that you, the end of your question. But if you look at this Court's cases that have set about to evaluate the burden or at least included as in the last section of travelers, a section that says, of course, if this were terribly burdensome, it might be another question. Those are cases and it's travelers dealing him and Dubuono. We all agree on that. Those were all cases in which there was a burden being placed on an entity that wasn't in travelers, it was hospitals, in Dubuono, what was hospitals, in dealing him, it was apprenticeship programs, all of which affected the price that Arisa plans might have to pay to get benefits or services from those kinds of providers. And so it took several sentences in each of those several paragraphs, in each of those opinions, even to explain how putting a tax on the non-blueprocess insurance plans in travelers or respecting the prevailing wage rate in California actually had an effect on any Arisa plan anyway, because they weren't regulation of the plans per se. They were indirect regulations. And when the regulation is indirect, that is, it is not a regulation that is directed at the very activity that makes the plan an Arisa plan. You do look at burden and indirect regulation obviously can occur, but if, as the Court explained in the last section of travelers, if it's too burdensome, it might be preemptive. But where the regulation is direct, where the State is requiring reporting, because the Self-Inchure Plan is engaged in the very activity that brings it under Arisa, that qualifies it as an Arisa plan, that obviously relates to and has a connection with the plan. And it's the same. The State simply cannot have an all-payer database that that's out because Arisa precludes it, even though it's going to leave a big hole in the information that the State has about that health care being given to its citizens. I don't think that that's it. All the case, Justice Ginsburg, and I don't want to be misunderstood about this. The State of Vermont, just to take one example, the database statute authorizes the relevant secretary to obtain this information from everybody, not only who pays for health care in Vermont, but the hospitals and clinics that provide it. But the Secretary, the executive official has chosen not to require that information from hospitals and clinics and doctors in Vermont. There is also no doubt that if all-payer claims databases so badly need the information from self-funded plans and it turns out that the Self-funded plan, a significant number of self-funded plans say no, that's preempted. The federal government has all the authority it needs to get that information and require that that information be provided, either to the Secretary and then to the States or directly to the States. And in fact, they can do what often happens in areas of field preemption and express preemption, which is to make it worth the plan's while. You know, they can offer all sorts of benefits to self-employed plans to provide this information if it's so important. And what's interesting when we're talking about what is or isn't in the record in this case is no explanation whatsoever from the State of Vermont at any stage as to why they haven't requested the actual providers of these health care services to provide the information and that it is inadequate. I mean, the only exchange I can recall is in the second circuit oral argument transcript, which is recorded and discussed in Judge Straub's dissenting opinion, the State was asked, you know, look how important is it to get the district judge? I think it was the district. Well, as you're explaining this, it just seems to me as much easier to ask the plan provider than ask 15 doctors in one small town and 50 others and all the patients. You know, unless I misunderstand your plan, it seems to me as much easier. It perhaps it's easier, but here's the point, and this is the insight of the Eurusopreemption provision. The hospitals in Vermont, the clinics in Vermont, the medical practices in Vermont are not subject to varying regulation in 50 different states. They operate locally. They're subject to state regulation. Here, we're talking about plans that Congress wanted to encourage that would do something new that would provide health care benefits and other employee benefits on a national basis. And in order to foster that, to subject them to a single set of reporting, record keeping, and regulatory obligations. And that, it seems to me, is the insight of Eurissa, and it was the bargain that Eurissa plainly struck. I simply noted in response to Justice Ginsburg's question that the State statute gives them the authority to do it. There aren't that many hospitals in Vermont. They already have all the information about what services are aren't being provided. The State could have said, no, no, we absolutely can't get by without this. But the representation at oral argument in front of the judge, which has also been transcribed and is in the record, the State, the lawyer representing the State, the judge was sort of trying to settle this case and said, you know, how much do you really need this information? And the response was, we don't really need it. This is just a couple of employees. This is just one plan, but there's a principle here, and we agree with that. And we also agree with the representations of my friends on the other side, that the question for this court, it has to take account of the possibility, which is the emerging reality, that all 50 States and the District of Columbia and Puerto Rico will have their own mandatory all payer claims databases that will require different things. And if I can just anticipate just a Sotomayor's question reserved for rebuttal to the State of Vermont, our brief explains, and the Blue Cross Blue Shield brief also explains, how there are of the hundreds of data fields that Vermont alone requires. There are dozens of them as to which there is no ICD, whatever the agreed national format is. There are dozens and dozens of them as to which there is no hippostand or no hippogarantee of confidentiality. And this is just one state. If you look, as I said at the Massachusetts APCD statute, which is the only other state that's actually come to Liberty Mutual so far, and look at our discussion of it on page 36, the stuff that they are asking for is so obviously critical to what the plan does. But this information is provided by Blue Cross for some self-insured plans, right? I believe that the record shows that Blue Cross Blue Shield provides this information to Vermont not only on behalf of itself as an insurer, but also some other. And do we know what costs Blue Shield then passes on to those other self-insured plans? We don't know it. We were not able to get it from Blue Cross at the time the case was before the district judge. But in any event, as the Chief Justice's question suggests, this issue doesn't end at Vermont. It has to take account of a burden that Congress was very, very aware of. It was very cognizant of the regime under the Repeal Disclosure Act and the costs of plans that are trying to be national plans, complying with 50 different state regulations. And I really commend to the court the Amicus brief filed by the multi-employer plans in this case. These are plans that are essentially union-sponsored plans. They are not fancy plans. Every dollar that they have to spend, gathering the data that each state, that different states say they have to have, comes directly out of the benefits that they can pay. Just as if Vermont decides next week, if it wins this case, that it wants to get information about pension plans and how they're being administered and what benefits are being provided and not provided, those are all 100% self-funded plans. If my employer has to provide all that information, that is coming out of my 401k benefits. Mr. Waxman, could a state pass a tax law that requires information about pension disbursements, about claim payments, about assets held in trust? Could a state do that? I don't think that a state, when you say requested information or imposing a tax. A tax law that requires information of various kinds. I don't think a state can impose a tax on benefits that are picked. Not impose a tax that requires information in order to ensure that the state is taxing the right things. In other words, we want to tax the benefits that you're getting. Do you think that a state tax law can't require any information about any of the things that Arissa does? That the plans do, pension disbursements, assets, claim payments, nothing? I think not. I don't think this case turns on it, but thinking about it, if the state could say, look, we just want to know all the benefits that you pay to every one of our residents. I think that would be preempted. As I say, that's not what's going on here. Even if I'm wrong about it, it seems to me that this is quite different. There's a lot of discussion on the other side of this just requires a press of a button, and all the information goes, and our brief goes on for pages and pages. And the other Amikis briefs show how that is so far from true. In order to comply with these, it's not just a question of saying, oh yes, we paid Seth Waxman $300 in benefits last year. This requires that we keep records that we don't keep, and that we display them and provide information in ways that we don't, and that differ from one state to another. And for those reasons, unless the court has questions, I will submit that the judgment should be affirmed. Thank you, Council. Ms. Icy, you have three minutes remaining. Thank you. I'd like to begin with just a sort of my worst question about the standardized data, because I think that ties in nicely with many questions from the court about the question of Berg. So the way that electronic claims transactions work is not something that the state of Vermont invented. It's part of HIPAA. It's a federal regulation called the electronic transaction rule, and it sets standardized coding and formatting requirements for the transaction between the payer and the provider. And we don't even have to look to the regulation for that, although that's in 45 CFR Part 160, but it's actually in the record at Joint Appendix 66. This is the agreement between Blue Cross and Liberty Mutual, which says that Blue Cross shall be capable of transmitting electronic data for which transaction standards have been promulgated in compliance with HIPAA electronic transactions rule, and shall to the extent possible transmit electronic data in accordance with that rule. That is how third-party administrators work, and that is why it self-insured plans nearly always have a third-party administrator, which is typically a health insurer, to process claims, because although it may look on the surface as though these reporting requirements and the data collection seems very complicated, it's complicated not because of anything Vermont has done. It's because there is a standardized national standard for how this data is collected, which is fairly specific, fairly detailed, and they're already doing it, and it is generating a pool of tremendously helpful data that has incredible potential to help states and the federal government figure out ways to bend the cost curve and improve the provision of health care delivery to everyone in the country. The Affordable Care Act expressly contemplated that states would do this kind of experimentation. It authorized the federal government to provide Medicare claims data to the states. It authorized, it created the Center for Medicare and Medicaid Innovation, which then authorized states to experiment, to develop new models for delivery, which then need to be tested and evaluated. The United States has explained in its brief that those programs depend upon the collection of all payer data, which is something only the states are doing. The promise here is enormous, and the fact and the loss of this data to the plans would be tremendous. I would like to address briefly one issue that my friend raised, which is the question of provider data. Vermont does, in fact, collect provider data, and we've collected it for a very long time. It's called hospital discharge data, and it was one of the first data sets that researchers looked to, but it's not as helpful as all payer data, and here's why. Hospitals don't have information that tracks care across an episode of care. If someone has their knee replaced, it starts with a doctor's visit, their surgery, there's an anesthesiologist, there's a state of rehab facility, there's follow-up physical therapy, and if you're trying to compare outcomes and cost for a procedure like that, it's the payer. The centralized payer is just Kennedy said who has all that information, there's only a few of them. That is the real power of the data, and it's not in the hospital data. Thank you. Thank you, counsel. The case is submitted