please the court lisa bennett from the office of the solicitor general representing the commissioners this case is about medical services reimbursement under texas state workers compensation system the airline deregulation act does not touch this area and the mccarran ferguson act further ensures that it cannot i will begin with express preemption and turn to mccarran ferguson if there is time but that's where counsel for the insurers will pick began with the text itself and the supreme court's interpretations of that text it was at this textual stage that the court initially concluded that services in the preemption clause means bargain for  services nd recognizing that it was dealing with a close case the court also dug deeper to make sure it was read in the text in context it's such a harmonize the preemption provision with surrounding statutes and it found further persuasion in the fact that the eighty eight dollars did not provide a federal remedy that would fill the whole preemption would create a rd the court applied a presumption against preemption the court should do the same thing here so going through those those three steps in this case st looking at is what is the term services work in this instance given the nature  talking about price so the court in hodges expressed that they did view the interpretation of these terms to be interchangeable and they they both admit of the same limitation on on being bargained for  the panel opinion in that case on which the banks definition was adopted further spoke of the fact that there are very few things over which airlines do bargain and that prices and services basically are the arena in which the airlines do bargain so we've got plenty of indication from hodges that these terms should be interpreted in the same way furthermore they're adjacent terms and by following the analytical approach that was used in hodges we get to the same place so speaking st about  the clarity that hodges business of the application of hodges here in the clarity that the price must mean bargain for price in this context as well we can look both to dictionary definitions like black dictionary refers to fall in the price being something that's voluntarily excepted we can look to the technical meaning of the terms in this case in the medical services context generally there is a complete distinction between a build charge versus a reimbursement amount and certainly an insurance benefit which is the part of the case that we're dealing with here and there is ample  authority out of the texas supreme court that talks about that as well as many other courts around the country and finally looking even to the kick the cases from the other circuits we have a number of cases that discuss implied contract a more accurate representation of what the market price would be then truly the divisions fair requirement of payment of fair and reasonable reimbursement of these air ambulances cannot be said to be changing what the market would otherwise be dictating so look going to the nd step of hodgins because this too is a close case the court should harmonize the provision with surrounding statutes and in this case when i'm talking about the surrounding statutes i'm primarily talking about the medicare medicaid system so those systems predated the airline deregulation act and they continued after unchanged and in fact in  congress actually passed legislation requiring the center for medicaid and medicare services to adopt fee schedules for empty air ambulances so there has been further statement from congress that yes  m s should keep regulating area ambulance reimbursement and should in fact promulgating fee schedules so in the face of that continued federal regulation by a completely different energy than the department of transportation it's nonsensical to say that the state division of workers compensation doing the same thing would somehow be undoing deregulation that had that had taken place due to the a and i'd further note that under medicaid payments to air ambulances are actually set by states pursuant to federal approval but under medicaid states do adopt  fee schedules and they simply must get approval from from the federal government so even under that medicaid system there is contemplation of a state involvement there so also because this is a is a close case the court should like like it did confirm that it's reading furthers the a t s purpose and when we're talking about purpose we're not talking about looking extrinsically to legislative history or anything else what we're talking about ins the clear statements of purpose that congress put in the act itself and they discussed that the act was being promulgated in order to encourage competition and to benefit consumers by using by harnessing competition to get low prices good services good routes and that is the end to this is of the outcome that area back in seeking here what arry vaca seeking here is to keep the state workers compensation machinery that requires payment by insurers but just be able to charge whatever they want and be able to more importantly be reimbursed whatever they want compensation system in texas reimburses air ambulance companies more than they get on average so i believe about fifty percent of the reimbursements come from medicare and medicaid and the fair and reasonable reimbursement but the division has a that's an important distinction to the extent this court is concerned about creating a circuit split with some of the sort of weight of authority that's piling up in different kinds of cases here the division is a judah getting a fair and reasonable reimbursement a number of those other courts have recognized that a fair or reasonable amount is what an area billets should get to recover under principles of implied contract and contract of course is excluded from  preemption but ones so here we don't have a state system that is setting a price artificially you know at medicare or you know at at at a fee schedule rate and we did have that in many of the other reimbursement finally this court like the court in hodges should recognize that the a b a does not provide a price term that we can substitute in here and there no dispute mechanism provided for an air ambulance fee dispute under the a t f a and we could expect there to be something like that if if there were an intention by congress to preempt state workers compensation and contracts and where the state dictates the insurers performance of its obligations under those insurance policy contracts that it sells the most central obligation of course is paying the benefits  required by that policy for the state regulates directly those two things it's regulating the very core of the business of insurance under the mccarran ferguson act and it's important to understand how this works in the texas worker compensation system council use the term reimbursement several times what is that reimbursement the reimbursement here are medical benefits prescribed by the state and required to be paid by actual insurance policies so texas workers compensation is uniquely among all fifty states in insurance market it is not a government program that relies on taxes and government distributions it is instead  regulated private insurance market texas worker's compensation is insurance policies i have the key page of which right here the texas worker's compensation insurance policy is written by the state it has one benefit term the benefit term says that the insurer who issues it must pay promptly when do the benefits required by the worker's compensation law these laws and there are three there is one statutory provision and two divisions these laws are the only medical benefits required by this insurance contract insurance contract requires payment of other benefits as well that's because this type of insurance transfers the risk that an injured worker might need medical services to the insurer that transfers the risk that the injured worker might need income replacement to the insurer and it transfers the risk of death at to the insurer and all of those types of insurance policy contract benefits are mandated by state law and w receives a claim for payment of insurance policy benefits it must pay the amounts dictated by the state law that's how it works it's a very simple construction real insurance policies real insurance companies receiving claims for benefits adjusting those claims under the cons confines and dictates of state law and paying out those benefits that's precisely what we have here and that's all that we have here yes that includes the payment of policy benefits the court use the term reimbursement cap what yes what that means here is the benefits set by the policy by wrecked reference to state law so the reimbursement cap there's a cap that is in theory at issue here because the law has multiple parts the part edits you hear buyer vivax request with its alternative claims is the medical benefit was the laws requiring the insurance companies to pay the benefits set by state law so the cap comes in through a different part of the law area that like all medical providers making claims under texas workers compensation insurance policies are not allowed to balance bill the injured workers so it limits them to what the insurance benefit is but here the only question is whether when the state sets the benefits required by the policy it's regulating the business of insurance and now you would have to i don't think that's correct your honor the well area that would be allowed to as it does in other types of insurance balance bill the insurer in this case the insured worker so the insurance company pays what it pays when the state dictates what the insurance company has to pay under its policy under its contract that it's regulating the business of insurance we know that from faber and all of the other supreme court cases  if there's a remaining balance that the provider has just like any other type of loss for which there might be some insurance coverage that's a separate issue and it's an interesting question we certainly think the balance billing prohibition would also qualif regulation of the business of insurance but that's not what the law that this court must write on today does the law that this court right must write on today simply defines the benefits and defines the benefits required by the insurance policy in much the same way that perino on a very vax cases one of the narrowest mccarran ferguson cases also does there the perino court looked at an insurance policy contract defined the measure of risk transferred to the insurer and the policy language there said the policy limits the insurers the risk to what medically necessary services paid at reasonable charges that's what and it said that's the measure of risk transfer what it perino say about that that's the fundamental principle of the business of insurance transferring the risk and then cabin ing it limiting it measuring it defining it scope that's what the insurance policy contracts do that's what all insurance policy contracts do in texas workers compensation insurance the state does it the state writes in to the policy what the benefits are and what the limits of those benefits are and this court's opinion in the inman case where the issue was is a state law incorporated into the insurance policy that the courts analysis there guides this cour arbitration provisions for uninsured motorists coverage of the state law said you can't have those and so what this court said is and is that as a matter of law that state law kind of trumps and is part of any insurance policy provision any insurance policy that this that's issued in the state of mississippi cases twelve district in state court cases six in the worker's comp context itself two of those circuit court cases dealing with the exact same issues here all finding that eighty eight preemption applies many of which texas mutual one of the insurers here filed and because briefs and presented some of the very same arguments that this court is asked to consider it's against that mountain of case law and that backdrop that the court has to analyze this case the nd point i particularly air carriers so in that reauthorization that the backdrop of it was a two thousand and ten g a o report and in two thousand and seventeen g a o report both of those reports to congress clearly laid out preemption how it was being applied in the air ambulance context even a worker's compensation case and what the issues were congress had in front of it at the time in two thousand and eighteen a change to the preemption clause it chaunced not to do that and instead it chose to make it clear in the unfair and deceptive trade practices piece of the act to make it clear that air ambulances were applied and it created a committee and at the top of that committee it put the secretary of transportation on that committee it said it needed to also deal with the secretary of health and human services related to c m s where the medicare medicaid said also needed to include state officials related to insurers and needs to include a lot of people on the committee to evaluate the very issues the policy arguments not the textual arguments that have been presented by the opponents in this case but the policy arguments it said everybody needs to address it but at the top of that committee is the secretary of transportation because that's what congress chose to regulate and to deal with this industry and deal with the economic issues in this industry the last point i want to make on the a d a s hodge's hodges dealt with a very difficult question which is what is services which was not defined in the personal injury tort context that is not what we have here what we have here is exactly what judge wilkinson in the four circuit said when you have a statute in workers compensation that you get says you get paid x there is no doubt that that falls within the expressed text of the preemption provision under the ag it's so it's it's that  backdrop that we need to be looking at this not the hodges backdrop now if you wanted to look at it in the hodges back drought the the what i would point the court to is the mara morales case and morality of the court the united states supreme court was dealing with state attorney generals who were attempting to regulate advertising through consumer protection laws and the court said that related to price it had no difficulty in finding that that related to price here prices defined by the idea they were services was not  words out of that definition so it is with that your honor that we ask you to uphold the finding that the eighty eight does not turning to the mccarran ferguson our argument the supreme court has made clear i think to thinks in fo cases one is that the business of insurance is the relationship between the insurer her and the insurer two it is not the relationship between an insurer and a rd party it's not that there's four cases that has actually addressed this all four of them dealt with rd parties starting with national securities we had shareholders laws that related to protecting shareholders here this from court said not the business of insurance i royal drug we had pharmacists pharmacies who were getting paid cost plus two dollars for their drugs or pharmacies that were getting paid cost plus two dollars that would have to be paid by the insured the court the united states said this is a relationship here even if it's incorporated in the contract up here between the intern in church it's still here it's not the business of insurance perino the court was dealing with chiropractors and it was dealing with the language of the insurance contract the language of the insurance contract said we will reimburse you for a reasonable you ness and necessary chiropractic cost they put in a panel to determine whether or not the services were reasonable and necessary to determine here in this relationship the chiropractors on the other the outside the court said that's not the business of insurance because it's not this relationship that you're trying to regulate it's this one and then fade the case that appellant's rely on the most that also dealt with rd parties that dealt with creditors that were outside of the relationship we're talking about one statute that had subsections that said the creditor gets paid the insurer gets paid st and then there's a series of of a waterfall effect for the rest of the bankruptcy the rest of the creditors united states supreme court sent for all of the other creditors that's not the business of insurance the only one that it actually is is the relationship between the insurer in the insured those four cases set the entire backdrop that's needed for the court to make the decision here now if you look at what faber really says it says you go provision by providing and you look at each provision so doing that here this is the judge sparks down three not at the insurer not at the employer not at the employee and in fact for one thousand three hundred and eleven sets out that the commission needs to set up maximum allowable rates are set up the rates for payment if you look at the ministry of code that they actually do that the very st line of it says maximum allowable reimbursement when used in this chapter is defined as the maximum amount payable to a health care provider doesn't say insured doesn't same ploy or doesn't same ploy now counsel read to you or said he had the policy that actually goes to the employer here's what it says actually you will pay promptly we will pay promptly when do the benefits require you by the worker's compensation law the you there is the employer the employer has to pay the benefits of the employee because if the employees  make he or she has to be made whole the texas worker's compensation act they they say it's an insurance program it's not it's an act that regulates the relationship between an employer and employee and sets out how that relationship and work in the context insurance is a component of it is there's no doubt about it but it is not the focus of it the focus of it is the employer in the employee relationship and when you take that and you say the state is inserting itself and same this is what you get paid as a provider is that rd party you're no longer in the relationship between the insurance company and the insurer you're in the relationship with the insurer and a rd party and you dictating the rate that's going to be received it's no different than road drug drug was a contract with pharmacies here the state is just enforcing that contract himself they're inserting it and it has not been inserted as counsel to suggest into the actual interests agreement itself and even if it was doesn't change the analysis even if it was there is not one case they have cited now one case out there that says when you dictate what a rd party is going to receive this party down here is going to receive that that automatically or in any way incorporates it into the business of insurance in fact the cases that have analyzed it say the opposite they don't cite one case for that proposition but they do cite cases the say when the insurer has an obligation when there's an obligation to the insurer that they have to do x y or z that is the business of insurance but not when you're down here saying what the rd party has to do now we have cited several cases that have found w so your honor i'm having a moment the guardian flight versus godfrey case in north dakota there's actually two cases in north dakota the dwell case but this is the actually more recent case the guardian flight versus  here and also the st bernard hospital case out of the th circuit so with that without your honors we will respectfully request that you affirm the district court's holding and find that these laws and regulations that are  counsel just said there is not one case out there that addresses state regulation of insurance contracts that result in payment of benefits to rd pot parties that's covered by medicare and ferguson that's completely wrong there too  this court should care about most prominently the st is this court's own opinion about what royal drug meant in texas pharmacy association and there the court was very clear in it rejected argument that it could possibly make that this isn't the regulation of business of insurance it said the royal drug turned on the fact that it was an insurance policy that was an issue in roll drug what was being challenge was private separate arrangement between the insurer and the pharmacy was a separate enjoyment not the policy itself the court itself in royal drugs that at least twice in this court in texas pharmacies association recognized that that was the distinction in texas pharmacy association and this court said that a state law mandating that the insurer provide coverage for pharmacies seeking to be within its network insurer insured relationship well of course the workers care of course the employers care this is payment of benefits on their behalf it's payment of benefits that they receive for covered services this is health insurance one hundred and one this is the state law dictating the terms of health insurance in workers compensation insurance ruch the supreme court easily said once we understand that h m o contracts both our health care delivery agreements and health insurance in illinois state law mandating rd party review affected the insurers performance of its policy obligations same exact rd party review that was in the at issue in perino but in a state law making the insurers do it to determine what coverage and what amounts that's what these state laws do these state laws do precisely the same thing that the law that the contract language and that the supreme court said was a fundamental part of the business of insurance choir's the benefits to be paid and sets the scope sets the measure the limit on the amount of risk being transferred and you can't have insurance if you don't limit the risk abstain and we've asked the court to just let the state court sort it out and and this court in its discretion did did not choose to do that so there's no reason to wait for that court to rule before issuing your ruling they probably know we have this one so they may wait on us yet we stand are under no obligation to enter into a standoff so they may take their time ruling on the right this is going to be