but in our view those arguments are closed by numerous existing precedence their airline deregulation arguments are closed by this court's decisions in feral and watson and there also is clicked with for example judge wil members prohibition which was the issue raised in our people guaranteed by its membership program it's a straightforward prepaid service agreement directly between a consumer and the provider the consumer base membership and then for banks that we don't even have to get to the analogy that taylor employed because we're right within the scope of that royalty holding the sale or focuses on the nd point it's about taylor it's that recognizes that where a service provider this contingency occurs an ambulance transfer transport but both of those factors were also present in equal to equal to greedy and taylor the borrower and taylor shifted to the bank that respect she would die before she and analysis but doesn't this really walk and talk like a duck i mean aren't we you know it's a very small fee for what is ultimately going to be a very expensive potential doesn't make it insurance there is a small upfront fee and exchange there was a significant debt nine hundred thousand dollars in today's money that would have been cancelled on the grounds that the contingency that everybody would have regarded as catastrophic and nobody wanted to happen which was the death then it's going to keep its promise because it hasn't gotten traction the right to recover anything or that what it's what it's agreed to do under the membership agreement i can't ask for any out of pocket costs whereas with a true insurer you have that promise identify so that when the insured incurs the liability that the insurer has become insolvent then the insured is left out in the cold she has a substantial liability and the insurer hasn't managed its pot of money that it's supposed to north dakota insurance commissioner john godfrey who is there representing the interests of state insures and this group is going to come up with a federal solution to the various issues that people have raised  industry and that's exactly what congress wants to have and that's consistent with the airline deregulation act north dakota has decided to freelance and try to come up with its own solution to this problem and that is we're either an insured or unsure and a rd party you're outside the business of insurance the business of insurance is really that relationship it's uniquely that relationship between the insured and insured a policy relationship and  billy had no trouble finding not only that that is preempted by the end of the regulation act but also that it is not stated by the mccarran purpose that because by the time the bells billing prohibition comes into play that the i'm arguing today on behalf of the defendants the north dakota insurance commissioner john got freed and the north could attorney general when stanton this case involves two statutes and acted by the north dakota legislative assembly for the purpose of regulating the business of insurance you know there's two provisions that issue talk about both of the claims settlements are sometimes referred to as the payment provision  the membership or subscription provision the reason these laws were passed as part of a larger bill as the twenty to thirty one specifically to protect north dakota insurance from the extremely high bills that they were getting from air ambulance companies that were sending them bills for out of pocket expenses covered by insurance the laws were passed specifically to address this problem through insurance regulation you know these high bills are are the result of a situation where we have an uncompetitive market in which patients who are involved  in you know an accident or or otherwise need to see medical care you know don't have any meaningful opportunity to choose the service provider in the moment they don't have any meaningful opportunity to ask for prices or anything like that how how can the prohibiting balance billing how can that be an insurance regulation it seems to me that has nothing to do the insurer it has to do with the relationship between the patient and the air ambulance carrier but you're right i think the relevant question or test here is whether or not the regulation that is it creates a benefit for insurance policy holders in north dakota in that for insurance policy holders it you know has in network rates and perhaps it's the balance billing  and so it is enacted for the purpose of regulating those insurance policies but these terms companies out of the picture already at that point isn't out of the picture  other words it's the relationship between the provider and the insured at that point the insurance company is already indemnified under the terms of the policy it has counsel and the it is that out of the picture if that may be the case at this stage but i think it's policyholders that drives north dakota consumers towards the traditional health insurance with those consumer protections that are in place so to the extent you know that the faith test applies and this is relevant now now the fact that it does involve a relationship here between the care provider and the patient may be relevant to one factor of the p test which you know we've argued wouldn't apply or would have limited application but to the extent it's relevant it's not a dispositive factor and not the primary focus under the layout that we've given in terms of an analysis of this case the now get it it's our it's our position that the t est laid out by the united states supreme court in the treasury versus faith is the appropriate test wherein the statute scapes preemption to the extent that it protects insurance policy holders and it has the and intention or aim of adjusting managing or controlling the business of insurance you can see it's a broader category of reverse preempted laws then and that the political to antitrust which are typically in that it does help define what the business of insurance is which is a portion of the test at issue in this case the test being you know was the state law enacted for the purpose of regulating the business of insurance  extent of perino analysis is included that's not necessarily wrong but it's limited to defining the business of insurance and it isn't the whole question or the whole issue at hand in terms of you know application of the last year i'll make sure i have a chance to address it all started with you know the membership for subscription provision and the idea of places that can be looked at we have cited you know in north dakota case law it is clear based on the mature into it as an act that it was the intention of congress to allow states to regulate in this area certainly this court could look to state law definitions of insurance i think that the kind of the analogies that are given by opposing counsel and the sort of slippery slope argument that's given i don't think is really a political in that we do have a very particular fact scenario or a structure of laws that issue in this case it and i i think he the royal drug case or the jordan ts where it's a contract between an insurance company and you know medical providers where they go she lower rates this isn't that type of a contract it's a contractor directly between guardian flight and the person who is seeking to eliminate the risk that they'll have a catastrophic loss of the taylor case that was that was hammered on significantly is it is a debt cancellation situation where somebody owes money to the bank in the event they die that debt is cancelled i would suggest that there are some fundamental differences here and i think most people would consider paying less than  hundred dollars a year to eliminate the catastrophic loss of potentially forty thousand dollars or more dollars in the event that you need an air ambulance is in the nature of insurance now and importantly though under the analysis that we've laid  out it doesn't necessarily have to be the business of insurance to survive under the you know reverse preemption of mccarren ferguson in so much as the test is whether or not the law was passed for the purpose of regulating the business of in to drive consumers away from these types of subscription plans and into traditional insurance with the protections that north the north could have regulatory structure house the as it is you know with these subscription plans being allowed it creates a competition with with health insurance you know it takes away all incentive for the insurers to become in network  and it potentially encourages individuals to pay you know something shy of one hundred dollars a year to eliminate this one risk and not see the types of insurance that provide more robust protection  analysis these types of subscriptions would be insurance but in any event the law prohibiting them was passed for the purpose of regulating the business of insurance and there's more surviva is that well i disagree that that indemnification necessarily means that it is a loss to a rd party that is paid for you know not the north dakota law that defines insurance  i don't believe that that necessarily has to entail a rd party in the traditional sense that that the insurance company pays a rd party on your behalf if this  again i think the courts should should look at the what this really is which is paying one hundred dollars or less so that you will get a forty thousand dollars plus bill in the very unlikely event that you're going to need an air ambulance in north dakota and i would again for true the walks like a duck analysis which is that that appears to be insurance in the ct need not go down the slippery slope of other e the claims settlement provision is a similar analysis and again we would we would it's really the same analysis on on both provisions  applied similarly in that we would suggest that the fit test would require you to look at whether or not this provision protects policyholders in this case it certainly does if you are a policy holder in north dakota you know claims have to be settled by your insurance company at in network rates and you're pretty texted from these balance billings that has the intention of adjusting managing or controlling the business of insurance in that  you know the claim settlement provision dictates the terms that have to be included in in the insurance policy and the manner by which the claims are paid again perino we would suggest is of  limited value or useful to the extent it's discussed by the court it still could be looked at in terms of whether or not this involves the business of insurance which is a portion of the test and you know going those factors you know does this have the effect of transferring or spreading the policyholders risk well well yes it's transfers the risk from north dakota policyholders onto their insurance company w that this is an attempt for congress to maintain control over this area we cite some provisions specifically in that act where in congress is referencing state insurance regulators being part of a committee and actions that they might be able i believe my time right now it has address insurers not providing adequate coverage for ambulance transports that would be focused on the issuance policy itself but what the states can't do is through their legislature just do an end run around this process take a step back when subsection by subsection in a single i have very statute and asked whether each of those priority provisions affected the relationship between the policyholder and the insurer and it held that the one that was going approach again submit that that's entirely foreclosed by taylor and that it is a slippery slope there are numerous products pretty small up front fee and potentially significant liabilities for example the legal beagles whom membership we all know