you'll hear argument this morning in case fourteen one eighty one go babe versus liberty mutual insurance company has a seat mr chief justice and may it please the court under under the principles of this court adopted in traveller's vermont's collection of health care data is not preempted the database statute does not affect arisa plans in any way that undermines the risk or objectives does not require plans to offer benefits affect the financing or fiduciary standards for plans or change the way the 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 and 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 of the been treated in vermont and does that also apply to people who are outside of their vermonters but are treated outside i mean what who's the universe to whom the supply of the supplies and it seems to me that that would be difficult for plans to to figure out as implemented by the board your honor the database requirements apply to vermonters receiving health care services from a covered insured regardless of their locations or both inside vermont and outside vermont if it's paid for by coverage insure it does not the board has chosen not to require data from non vermont residents receiving care in vermont don't believe so your honor because the program that has been challenged here my liberty mutual's the program as it has been implemented by the board and that that is how it has been implemented and this kind of generally  health care regulation is not preempted for the reasons that this court has expressed in a series of decisions including travelers debono makea and dillingham letter of the point that justice kennedy suggested  that states can have different reporting we are and so it's a little bit like in that respect that if there were uniform requirements that would be less burdensome but if each state has its own specification 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 some 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 transaction post dates had different reporting requirements and the plan showed they haven't 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 around or i think the court holding in travelers can be distilled to basically three questions the first question is does the plan does the state law specifically and directly regulate arista plans only that's not at issue in this case it does not the second question is whether the state is regulating in an it's engaged in health care regulation goes his way if it is engaged in data collection and if you say the latter that is something that audited financial statements information about how the plan is about the degree of the plans financial soundness and nothing that vermont is doing has anything to do after the affordable care act doesn't  affordable care act included in a recess 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 a reso which in turn incorporated the acts amendments to the public health services act but those do not change the test for a receipt printers and they're not part of the plans annual reporting to the department of labor there's a couple of 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  been on the books for years the standard set forth in travelers which reserved to the states health care regulation was understood by truck by travelers it was understood by congress and it was not changed and this program that vermont has reason must report fill out the following forms about how the how they invest their money can they do that they could they could have a standard for the next can they do just what i said is there is that see case after case here that says that reporting requirements are a central function you know i 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 beyond the labor department and i said that it was obviously my question to good answer because you're saying i'm not getting anywhere with this line of is your good because i say what about health care that's the next question my actual question i'm driving you should have the information i have no doubt about that but the question is will the f go to the labor department first or h h s and say we want uniform rules here or whether they have to come to you when the rules of fifty states turn out to be a mess and you when 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 get a national rule that gives you a large range to get what you want think i don't know the answer to that question that's why i ask in your honor 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 the department of labor the federal government agrees with us that this is an area that arista leaves to the states even though it involves data collection because of recent cannot possibly have been intended to sweep away all collection of information from plans by states congress adopted it deliberately expansive definition of a welfare benefit plan and a recess that includes not just the direct provision of medical care but also day care centers apprenticeship programs prepaid legal services these are all areas in which one plans would act they would necessarily be providing information to someone i see that i see that argument as to a ris as originally and then i could but i am very troubled by the fact that it now authorizes the collection of data for the purpose of improving health health care outcomes i don't see how that unless the  preemption provision saves the day i don't see how that does not undermine your principle argument which is that a risk may preempt recording of financial data and that sort of thing but it doesn't preempt the collection of data regarding health care you're out of the scope of a recess preemption provision eleven forty four is governed by what congress intended when it passed a recess in one nine hundred seventy four possibly be if congress some afternoon amendment tomorrow that says one of the core purposes of a recess is to collect health care and formation and here is a here's the health care collecting requirement you would say well that's not preemptive because that wasn't the purpose when saying that that nothing changes the test remains the same but now that test is applied to collection which which the labor department is itself conducting or is itself authorized to conduct that's not changing the test it's simply 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 it has not made it a core function of a receipt it has there were it's the affordable care act amendment to rescind again there's also in addition to parts seven's preemption language there is the affordable care act 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 to this it over problem for you all you have to do is go to d o a h h s state representative says this is what we want to do when you clearly promulgated a regulation can do it maybe in ninety days or one hundred twenty days which says that and similar things are followed and you know our opinion it's not and it's not preempted i think you could do that that's my opinion about maybe only one who thinks that but it so i think is a question which forms you have to go through but if we take you and say ask i'm really asking the government this question is i don't see why they are on your side and they'll have an answer that you say i want to find out but what i want to find out is this is the fact that i saw was ninety three million people have these plans and if ninety three million people have these plans there can be fifty states with fifty different sets of regulations imposing a huge financial burden upon health care and were that to happen suddenly all the people we're 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 to actually implement now that's my basic problem 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'm if i may try responding this way around or the notion that it's more efficient for the department of labor to collect a subset of standard you're not going to collect anything all they're going to say is in our raid you have permission to go and impose these requirements but by having to go to them first we prevent the conflicting requirements of fifty different systems and it's possible that they maybe maybe to do that i'm not sure where that authority would would it is clear it isn't clear that they're able to do that is it i sn't clear that a federal agency can eliminate preemption by simply saying ok you can go ahead and do it only as even though it might otherwise preempt it under the statute we say it's ok i think that's not  clear a clear question it's 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 decide i know your time is right to consider two cases case one vermont is the plans in state by state regulation on rebuttal because i don't want to eat up more of your time would you go through the through more carefully 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 c d ten right everybody has to use the mr chief justice and may please the court i would like to start if i could with justice briar's questions and hopefully i can move on to justice alito is questions about the a c l u and justice kennedy's questions about the burden here let me set out how we see the interaction of the preemption framework and record record keeping requirements and then turn to what i think deals roll is here both sides agree essentially that resupply hands can be subject to some reporting requirements probably many record porting requirements incident to state laws in other substantive fields so for example the solicitor general gave the example of daycare centers arisa plants 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 training the facilities are safe and so forth this court case in de bono upheld a tax imposed on employer contributions to a risk 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 the 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 requirements about that information i don't think that can be right for example real property held in trust by a pension plan deal well 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  is true with the tax into buono the same is true by the way in dillingham that was a case about in a recent run apprenticeship program and california law said you either follow our standards for apprenticeship or you have to pay a higher wage mean that was as core as you get it was literally the way the  program was set up so i don't think the test can be whether the information is in some sense core to arista i think the test has to be is this reporting requirement incident to a law in the field governed by or besting funding for the cherie 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 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 resupply and or the administration of a recipient and i think a lot like this that imposes reporting requirements on claim could theoretically be that burdensome and someone 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 connection provision why i think the way it's different than conflicts preemption or at least one way is that if it actually is in the core field governed by a risk 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 will it would be preempted even if the requirements weren't particularly burdensome to the court has never held that in a specific case but i think the courts analysis leans toward towards that direction so it could either be within the preempted field in which case it relates to a resupply ends and it's out or it could be so burdensome that it effectively that i don't think i don't think and here's what i would say about that i mean i i know your opinion and opinion of a few other justices have suggested we should shift to feel preemption i think if the court were to say what we've been doing all along is feel preemption and it makes more sense doctrinally to classify it that way from the department of labor's perspective that would be fine i'd 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 this problem and they have a big chart where they show the possibilities of 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 do you all propose to do about that in the us government one thing to do about it and i've looked up the regs so maybe justice scalia disagrees but i'm talking about what i think are right the seems like they would have a 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 what you said there's two pieces there whether this actually has a berg and 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 to the department of labor that the significant burden has not been shown here so that's starting premise we do not agree with it all i'm saying is that if a party could show that justice kennedy said it's it's when fifty states devise fifty different requirements for this different formatting different particular information requested that just all adds up to a lot of hassle which will add up to a lot of money t points i mean first it seems far less burdensome than state laws this court has already upheld or that state laws that i think most people would agree have to be upheld i mean the tax or that surcharge in travelers that was the case where if you bought commercial insurance you had to pay a surcharge up to twenty  percent more on medical purchases that's unbelievably burdensome and surely had reporting requirements associated with it and having to pay vastly different surcharges in fifty states could be burdensome to what this court's precedents of said including travelers and dillingham buono is that a mere burden is not enough what has to be shown it that it interferes with the administration of benefits so in equal hoff but i consistent theme in our cases when you say near burden is not enough is that the government wants employers to one 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 expects pence's is it your view in analyzing this question do we look at what would happen if fifty states adopt a different programs or do we look at just for models from odd happens to be first before our view is do you have to contemplate the fifty states doc different regimes yeah i think that's right so you don't think fifty different regimes of reporting is going to require a significant diversion of money away from benefits to administration not not on this record mr chief justice but recall a kind of a record you need to show that i well of course you can't have a record of what fifty states are doing if it's a hypothetical question i think there's a couple ways responding could have made the showing here i mean at minimum a 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 i suspect they could not have made that showing all they have twenty pages twenty six and twenty seven of the blue cross blue shield brief and there they have a big chart here all these organizations out there that are trying like the uniform law commission there's to create uniformity that's why i say that's why i'm puzzled as to what to do when my supposed 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 how do i write that opinion i'm going to that the chart point i mean the chart actually doesn't show conflicting requirements most of the counterpoints they have are just 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 is an end of i'm serious how do i write the opinion you suppose it could happen but it hasn't happened yet how do i write the opinion i think i think the opinion is written like this one this is a reporting requirement incident to a field that is not governed by a 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 risk it is suggested in dicta that it's possible but that isn't currently a factual determination and it's hard to see how the court could reach that conclusion without some factual show when we go through a case one point in their eleventh state that does this and that's the eleven different things we say is that a burden is not a sufficient burd may we say no but then when thirty states do it maybe it's a different answer that seems like a very odd preemption analysis i don't think it should turn on that mr chief justice i do think it's appropriate for court to consider what if fifty different states impose different requirements like this but just like fifty different states might have different requirements for daycare centers or for prepaid legal services that i don't think is the  burden riscos 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 recent plans do is report data to do in two sentences i think that the burden here is far less substantial in the burden 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 administr or insurance companies that already have the infrastructure in place for reporting requirements as applied to them which cannot be preempted under thank you counsel nationally uniform rules of administration first and foremost rules about record keeping and reporting now of course your wrists aplay ends like other regular businesses are subject to ancillary regulation like maintaining a safe workplace paying a minimum wage and prevailing wage laws paying their stay 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 child care 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 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 and some of it is included in the joint appendix and all the pages that are extra long folded in a bow what it is that we have to do both in vermont and in the then fifteen other states that imposed very very different reporting obligations so we didn't put a dollars and cents in but we did make the colo or 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 figure federal regulation of these fausto national plans to grant a very broad preemption provision that says this is going to be federal regulation about the economy or is it about the converse point for you that i was making before the number that jumped out from the page is the ninety three million people  affected 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 well why 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 who's regulations i've read or possibly a c c a and say we want you to impose a uniform national data collection system or the equivalent put limits and then preempt the conflict being state limits now it may be other members of the court do not agree with this approach but i've written the case metromedia 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 brier  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 risk to impose the kind of record keeping and reporting requirements that vermont and now seventeen or nineteen other states do they have never disavowed that the s g s brief if both the invitation stage and the marriage stage sort of quietly suggest that that is that right and it's a one size fits all solution and there's some value to states being able to think about their own health care needs and if they were about what things they want so i mean just again let's go back to this burden because it is a very intuitive idea that you have on your side fifty 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 of the data that's being requested is data that blue cross blue shield generates anyway that all of the data that's being requested is down to the 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 i mean you know it's you can say it's ninety three million people but you know in the end what's the cost oh and why don't you have it in the record ok i there is not a with respect to burden congress in and acting the preemption provision and they are we cited to the court place after place in the conference reports the house reports the statements of the sponsors the recognition in over in repealing the disclosure act which set a reporting a national reporting floor and allowed the states to add on to it and record evidence before congress that small plans were spending up to forty percent of their entire assets on state reporting congress made the determination that this court has reflected in many many of its decisions including adult off that the very fact that there could be fifty different state regulations is the burden that the preemption provision is designed to address and the notion that you know so do we know a nice what is the burden of providing that information for the other something to supplant and it's providing the information or justice ginsburg the blue cross blue shield association has actually filed a brief in its case in this case and it explains at great detail as does the brief of the multiemployer plans which like liberty mutual operate in fifty states about the burden about the fact that blue cross blue shield doesn't have all this information in the normal course the multiemployer 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 at since this since this litigation be can the commonwealth of massachusetts  now told liberty mutual that it wants reporting under its a p c d's statute and as we recap at page thirty six of our brief their regulations require among other things the premiums the plan charges  real assumptions the summary of its plan designs the plans of reserves it sir plus its provider payments its provider levels and information about persuadable procedures whose claims are denied and the chart that we submitted in the district court reflects the wide variation in state's there's the burden that congress for saw is coming to play before our very eyes as states more and more states adopt these mandatory plan is that information the laundry list you went through is now already available with blue cross blue shield them being reported some rules no it is not absolutely not in the blue cross blue shield association that the multiemployer plan brief reports that they only had that their plans generally have about seventy to eighty percent of the information that's required by any one of these states and to go to i think it was justice briar's hypothetical look the same rules that apply your 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 apartment of labor to permit state states to operate their own a reception plans for their residents now they could pass a database statute that says we're really concerned about whether elderly you know vermonters are going to have enough money in their elderly years and we know that ninety three 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 you do this well can't you simply go and the statute says eleven forty three  the statute says that the secretary of labor and the authorities brought in these as authority to undertake surveys and collect compile and laws publish data information and statistics on welfare plans ok that's a risk to welfare so you go to them well and you say d o l we want you to promulgated a rig that says you will collect some of this information but even if you collect don't collect it all you let the states collect the rest they can prevent it from being burdensome justice prior i know how exciting it is to get in the middle of that jurisprudential debate between you and justice i i don't see this is not just good i'm my my fingers are tingling at the prospect i am not sure i am not sure that the department of labor has the regulatory authority authorizes the secretary of labor to choir the production of any information or data from and arisa plan where he finds that such data or information is necessary to carry out the purposes of this subchapter and adverting to justice alito comments in the aka 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 korea emption here is sort of like an it 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 promulgated a regulation either of you work color or justice scalia's color that it would be preempted is a crazy idea is a crazy the same but what 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 one hundred or two hundred people in department of labor in h h s that could write regs 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 the statute in a way that the chief of those objectives how to win target 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 in a recipient and duds and there is nothing more core then 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 and as in a recent plan the payment of benefits that state one necessarily relates to because it has a connection with and a risk of 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 sixty percent 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 and 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 you know it could be taxes it could be daycare it could be anything right but why is it that this regulation full isn't a different category than taxes or childcare or anything else because the state here clearly is not attempting to and it's not regulate in payment of benefits it's doing something that has new operations no doubt but the state is operating in a completely separate area for completely separate purposes and a way that does not trump conflict with or anything else the choices that a re 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 that might be another question those are cases and it's travelers dillingham and de bono we all agree on that those were all cases in which there was a burden being placed on and entity that wasn't in travelers it was hospitals and debono what was hospitals in dillingham 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 blue cross insurance plans in travelers or respecting the prevailing wage rate in california actually had an effect on any aris plan anyway because they want regulation of the plans per se they were in direct regulations and when the regulation is in direct that is it is not a regulator that is directed at the very activity that makes the plan in a recent plan you do look at birth and indirect regulation obviously can occur but if as this 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 insured because the self insured plan is engaged in the very activity that brings it under er case just the skins berg 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 healthcare 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 has significant number of self funded plans they know 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 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 plans while you know they can offer all sorts of benefits to self employed plans to provide this information if it's so important 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 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 that the only exchange i can recall is in the second circuit oral argument transcript which is recorded and reports and discussed in judge 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 that didn't well as  me is much much easier perhaps it's easier but here's the point and this is the insight of the arisa preemption provision the hospitals in vermont the clinics in remind the medical practices in vermont are not subject to varying regulation in fifty 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 forster that to subject them to a single set of reporting record keeping and regulatory obligate and that it seems to me is the insight and it was the of the bargain that a risk of plainly struck i simply noted in response to justice ginsburg's request and 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 aren't being provided the state could have said no 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 fifty 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 oars question reserved for rebuttal to 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 i c d whatever that the agreed national format is there are dozens and dozens of them as to which there is no hipaa standard no hipaa guarantee of confidentiality and this is just one state if you look as i said at the massachusetts a p c p statute which is the only other state that's actually come to liberty mutual so far and look at our discussion about on page thirty six the stuff that they are asking for is so obviously critical to what the plan does but this is this information  is self insured plans right i believe in that i believe that the record shows that that blue cross blue shield provides this information to vermont not only on behalf of itself as an in er but also some other and do we know we do do we know what caused lucy and then passes on to those other players we don't know what we were not able to get it from blue cross at the time the 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 fifty different state regulations and i really commend to the court the amica spree filed by the multiemployer 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 comply 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 if were mot 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 one hundred percent self funded plans if my employer has to provide all that information that is coming out of my four a one k benefit mr mr watson could as state pass a tax law that requires information about pension disbursements about claim payments about 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 using that estate tax law can't require any information about any of the things that a receipt does that the plans to pension disbursements assets claim that's not from i i think not i think that the state i mean 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 that's not what's going on here and even if i'm wrong about it it seems to me that this is quite different you know there's there's a lot of discussion of the other side of you know this just requires  press of a button and all the information goes in our brief goes on for pages and pages and the other miki amicus briefs show how that is so far from true in order to comply with these it's not just a question of saying oh are three hundred dollars 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 doe 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 counsel ms i see 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 with many questions from the court about the question of burden so the way that electronic claims transaction 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 elected for the transaction between the pair and the provider and we we don't even have to look to the regulation for that although that's in forty five c f r part one sixty but it's actually in the record at joint appendix sixty six this is the agreement between blue cross and liberty mutual which says that blue cross shall be capable of transmitting electronic data for which trans actually 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 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 as though these reporting requirements and 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 her and improve the provision of health care delivery to everyone in the country 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 medica innovation which then authorized states to experiment to develop new models for delivery which then need to be tested and evaluated in 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 in fact and the 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 and an episode of care if someone has their knee replaced it starts with a doctor's visit their surgery there's  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 pay or the centralized payer is just kennedy said it has all that information that 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