United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-1465

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The Prudential Insurance Co. of

America; Prudential Health Care

Plan, Inc., d/b/a Prudential Health

Care Plan of Arkansas,

Plaintiffs/Appellees,

HMO Partners, Inc.,

Plaintiff/Appellant,

Arkansas AFL-CIO; Tyson Foods,

Inc.; United Paperworkers

International Union, AFL-CIO,

CLC,

Plaintiffs,

v.

National Park Medical Center, Inc.;

Y.Y. King, M.D.,

Defendants/Appellees,

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Appeals from the United States

District Court for the

Eastern District of Arkansas.
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Bryan W. Russell, D.C.; George A.

Haas, O.D.; Bryant Ashley, Jr.,

O.D.,

Defendants,

The State of Arkansas, 

Intervenor Below/

Appellee,

American Association of Health

Plans, Inc.,

Movant Below.

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No. 04-1644

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The Prudential Insurance Co. of

America; Prudential Health Care

Plan, d/b/a Prudential Health Care

Plan of Arkansas, Inc., 

Plaintiffs/Appellees,

HMO Partners, Inc.; Arkansas

AFL-CIO,

Plaintiffs,

Tyson Foods, Inc.,

Plaintiff/Appellant,

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United Paperworkers International

Union, AFL-CIO, CLC,

Plaintiff,

v.

National Park Medical Center, Inc.;

Y.Y. King, M.D., 

Defendants/Appellees,

Bryan W. Russell, D.C.; George A.

Haas, O.D.; Bryant Ashley, Jr.,

O.D.,

Defendants,

State of Arkansas,

Intervenor Below/

Appellee,

American Association of Health

Plans, Inc.,

Movant Below.

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________________

Submitted: November 17, 2004

 Filed: June 29, 2005

________________

Before RILEY, JOHN R. GIBSON, and GRUENDER, Circuit Judges. 

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1

Employee benefit plans can be either ERISA plans or non-ERISA plans. See

29 U.S.C. §§ 1003(a) and 1003(b). No non-ERISA plans are parties in this case.

-4-

GRUENDER, Circuit Judge.

HMO Partners, Inc. (“HMOP”) and Tyson Foods, Inc. (“Tyson”) appeal the

district court’s order dissolving the permanent injunction it imposed following this

Court’s decision in Prudential Insurance Co. of America v. National Park Medical

Center, Inc., 154 F.3d 812 (8th Cir. 1998) (“Prudential I”). For the reasons stated

below, we affirm in part, reverse in part, and remand to the district court to enter

judgment consistent with this opinion.

I. BACKGROUND

HMOP is a health maintenance organization (“HMO”) that operates under the

insurance laws of the State of Arkansas and offers insured employee health benefit

plans to employers. Tyson sponsors a self-funded, or self-insured, health benefit plan

(the “Tyson plan”) for its employees in which benefits are paid out of Tyson’s general

assets. The insured employee benefit plans offered by HMOP and Tyson’s selffunded plan are governed by the Employee Retirement Income Security Act

(“ERISA”), 29 U.S.C. §§ 1001 – 1461.1

 

The Tyson plan and the plans offered by HMOP feature closed “provider

networks” to control both the cost and quality of health care services. The networks

are composed of health care providers, including doctors and hospitals, that agree to

various contractual requirements in exchange for membership within the network.

The terms and conditions for inclusion in a plan’s provider network typically include

price controls. Providers agree to those price controls because they anticipate

increased business from plan participants who are reimbursed only for services
-5-

performed by in-network providers or who receive a greater benefit by going to innetwork providers as opposed to out-of-network providers. 

HMOP creates its own provider networks. In contrast, Tyson maintains various

agreements with insurance companies under which the insurance companies may

agree not only to perform third-party administrative and claims processing services

for the Tyson plan but also to provide the plan access to various provider networks

in the geographic areas in which Tyson’s employees are located.

The Arkansas Patient Protection Act of 1995 (the “Arkansas PPA”), Ark. Code

Ann. §§ 23-99-201 – 23-99-209, was passed to ensure “that patients . . . be given the

opportunity to see the health care provider of their choice.” Ark. Code Ann. § 23-99-

202. To effectuate this goal, the Arkansas PPA, commonly referred to as an “any

willing provider” (“AWP”) law, provides that: “A health care insurer shall not,

directly or indirectly . . . [p]rohibit or limit a health care provider that is . . . willing

to accept the health benefit plan’s operating terms and conditions, schedule of fees,

covered expenses, and utilization regulations and quality standards, from the

opportunity to participate in that plan.” Ark. Code Ann. § 23-99-204. Typical of

AWP laws, the Arkansas PPA requires health care insurers to admit qualified health

care providers into the insurer’s provider networks if they are willing to meet the

terms and conditions of participation.

After Arkansas passed the Arkansas PPA, various doctors and hospitals sought

admission into otherwise exclusive provider networks by expressing a willingness to

accept the terms and conditions of participation. HMOP and Tyson sought a

declaratory judgment that the Arkansas PPA was preempted by ERISA § 514, 29

U.S.C. § 1144, and a permanent injunction against the enforcement of the Arkansas
2

Many of the original parties in this case did not participate in this appeal. This

includes Aetna, Inc. (“Aetna”), which acquired Prudential Insurance Company of

America and Prudential Health Plan, Inc. (collectively “Prudential”) after this Court

issued its mandate in Prudential I. Aetna, the successor to Prudential’s interest in

Prudential I, takes no position on the resolution of this appeal and, upon leave from

this Court, neither filed briefs nor appeared at oral argument.

-6-

PPA by parties seeking admission into their exclusive provider networks.2 The

district court granted judgment in favor of both HMOP and Tyson and later amended

its order to hold that the Arkansas PPA was preempted by ERISA only insofar at it

relates to ERISA plans. Prudential Ins. Co. of Am. v. Nat’l Park Med. Ctr., 964 F.

Supp. 1285 (E.D. Ark. 1997). 

In Prudential I, this Court reversed the district court’s amendment of its

judgment and held that the Arkansas PPA was preempted by ERISA “in its entirety,”

not just as it relates to ERISA plans. 154 F.3d at 831-32. We held that HMOP and

Tyson were both entitled to a permanent injunction against enforcement of the

Arkansas PPA in its entirety and remanded the case to the district court to enter an

injunction (the “Prudential I injunction”) in accordance with our decision. Id. at 832.

The defendants did not seek a writ of certiorari.

The present appeal began in light of the Supreme Court’s opinion in Kentucky

Ass’n of Health Plans v. Miller, 538 U.S. 329 (2003), which held that ERISA did not

preempt two Kentucky AWP statutes. Arguing that Miller changed the applicable

law, National Park Medical Center, Inc. and Y.Y. King, M.D, which were defendants

in the original suit for injunction, and the State of Arkansas, which participated in the

original suit as an intervenor (collectively “the movants”), filed a Motion to Recall

Mandate and Lift Permanent Injunction (“Motion to Recall Mandate”) with this

Court. We summarily denied that motion, stating without further explanation that,

“The motion to recall the mandate and lift permanent injunction filed by Appellants
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National Park Medical Center and Y.Y. King, M.D., and Intervenor State of Arkansas

has been considered by this Court and is denied.”

The movants then filed a Joint Motion to Dissolve the Permanent Injunction

(“Joint Motion”) pursuant to Fed. R. Civ. P. 60(b)(5) with the United States District

Court for the Eastern District of Arkansas. The district court held that “the significant

shift in the law as a result of the Miller decision meets the requirement of an

extraordinary circumstance” for the purposes of Rule 60(b)(5) and dissolved the

injunction barring the enforcement of the Arkansas PPA. Prudential Ins. Co. of Am.

v. Nat’l Park Med. Ctr., No. 95-514, slip op. at 5 (E.D. Ark. Feb. 12, 2004). 

HMOP and Tyson appeal, arguing on several grounds that we should reverse

the district court and direct it to reinstate the injunction against the enforcement of the

Arkansas PPA by the excluded health care providers and the State of Arkansas, the

movants in this case.

II. DISCUSSION

A. District court’s authority to rule on the movants’ Joint Motion

under Rule 60(b)(5)

The movants filed their Joint Motion under Rule 60(b)(5). This Court reviews

a district court’s ruling on a Rule 60(b)(5) motion for abuse of discretion. Parton v.

White, 203 F.3d 552, 555-56 (8th Cir. 2000). Both HMOP and Tyson argue that

because this case involves only pure issues of law, the standard of review should be

de novo. Nothing turns on this argument because a “‘district court by definition

abuses its discretion when it makes an error of law.’” Computrol, Inc. v. Newtrend,

L.P., 203 F.3d 1064, 1070 (8th Cir. 2000) (quoting Koon v. United States, 518 U.S.

81, 100 (1996)).
3

Understandably, the district court questioned its own authority to decide the

matter. Prudential Ins. Co. of Am. v. Nat’l Park Med. Ctr., No. 95-514, at 9 (E.D.

-8-

Rule 60(b)(5) states that, “On motion and upon such terms as are just, the court

may relieve a party . . . from a final judgment . . . [if] it is no longer equitable that the

judgment should have prospective application.” Fed. R. Civ. P. 60(b)(5). “The

district court retains authority under Rule 60(b)(5) to modify an injunction when

changed circumstances have caused it to be unjust.” Keith v. Mullins, 162 F.3d 539,

540-41 (8th Cir. 1998). “‘Relief under Rule 60(b) is an extraordinary remedy’” and

will be justified only under “exceptional circumstances.” Watkins v. Lundell, 169

F.3d 540, 544 (8th Cir. 1999) (quoting Nucor Corp. v. Nebraska Pub. Power Dist.,

999 F.2d 372, 374 (8th Cir. 1993)). When prospective relief is at issue, a change in

decisional law provides sufficient justification for Rule 60(b)(5) relief. See Ass’n for

Retarded Citizens of N.D. v. Sinner, 942 F.2d 1235, 1240 (8th Cir. 1991).

HMOP and Tyson argue on a number of grounds that the district court was

precluded from entertaining the movants’ Joint Motion. Although HMOP and Tyson

present a number of distinct arguments, they generally contend that the district court

should not have considered the motion because this Court previously denied a motion

on the same ground seeking similar relief. We disagree.

First, HMOP’s and Tyson’s various arguments based on res judicata and the

law of the case doctrine assume that this Court’s summary denial of the movants’

Motion to Recall Mandate was a decision on the merits rather than on procedural or

prudential grounds. HMOP and Tyson, however, ignore that this Court’s summary

order refusing to recall its mandate was issued in a case with a complex procedural

history involving complex legal issues and was without any substantive analysis or

comment on the merits of the motion. Under these circumstances, the district court

could have reasonably inferred that our denial was not on the merits, but rather an

invitation for the parties to present their claims before the district court first.3

 Cf.
Ark. Feb. 12, 2004) (“With some reservations that the Eighth Circuit had made a final

pronouncement on this issue against the movants even without specific prohibition,

this Court will consider the merits of modifying the relief it granted earlier.”).

-9-

Moore v. Jackson, 70 Fed. Appx. 401, 403 (8th Cir. 2003) (unpublished per curiam)

(holding that a district court’s summary denial of a motion gave this Court no

indication of its legal conclusions and remanding the case for reconsideration). In

addition, the district court recognized that the Supreme Court’s decision in Miller

changed the governing law in this case, as we demonstrate below. For these reasons

and in these limited circumstances, we hold that the district court did not err by

reaching the merits of the Joint Motion. Therefore, we reject HMOP’s and Tyson’s

arguments that our summary denial of the movants’ Motion to Recall Mandate was

the law of the case or had res judicata effect. 

Similarly, we reject HMOP’s argument that under Kansas Public Employees

Retirement System v. Reimer & Koger Associates, Inc., 194 F.3d 922, 925 (8th Cir.

1999), this Court should defer to a previous denial of a motion to recall the mandate

where the movants advanced the same arguments in both courts. In that case, we held

only that this Court must consider a prior denial. In this case, we have considered our

prior denial of the movants’ Motion to Recall Mandate, but we agree with the district

court that the circumstances warrant reaching the merits of the movants’ current

motion. 

HMOP and Tyson also argue that the district court should have denied the

movants’ Rule 60(b)(5) motion because there was no change in this Court’s binding

precedent. See Agostini v. Felton, 521 U.S. 203, 238 (1997) (holding that a Rule

60(b)(5) motion must “be denied unless and until this Court reinterpreted the binding

precedent”); Okruhlik v. Univ. of Ark., 255 F.3d 615, 622 (8th Cir. 2001) (holding

that district courts must observe the precedents of this Court until they are overruled

by this Court sitting en banc). First, this argument fails because we believe that the
-10-

Miller Court did overrule our binding precedent. Second, even ignoring the effect of

Miller, the argument also fails because the district court did not overrule our

precedent from Prudential I. Rather, the district court only modified its own prior

judgment by dissolving the injunction. See Standard Oil Co. of Calif. v. United

States, 429 U.S. 17, 18 (1976) (holding that where later review makes doing so

appropriate, a district court may grant relief from permanent injunctions without

appellate leave). Because the Joint Motion involved only prospective relief, the

district court did not alter binding precedent, and it had authority to grant the motion.

HMOP contends that the movants’ failure to seek a timely writ of certiorari is

a sufficient ground for reversing the district court’s grant of a Rule 60(b) motion

under In re SDDS, Inc., 225 F.3d 970, 972 (8th Cir. 2000) (holding that failure to file

a writ of certiorari was a sufficient ground for affirming the district court’s denial of

a Rule 60(b)(4) motion). In that case, however, there was no change of law that came

after the movants’ original decision not to seek a writ of certiorari. In this case, not

only was there a substantial subsequent change in law but also the movants’ original

decision not to file a writ of certiorari was reasonable because the Supreme Court had

recently declined to consider similar issues in two cases. See Tex. Pharm. Ass’n v.

Prudential Ins. Co. of Am., 105 F.3d 1035 (5th Cir. 1997), corrected by No. 95-50807

(5th Cir. Feb. 14, 1997), cert. denied, 522 U.S. 820 (1997); CIGNA Healthplan of La.,

Inc. v. Louisiana, 82 F.3d 642 (5th Cir. 1996), cert. denied, 519 U.S. 964 (1996).

This reasonably perceived futility of seeking a writ of certiorari does not foreclose the

district court from granting the movants’ subsequent Rule 60(b)(5) motion where, as

here, a subsequent Supreme Court decision clearly undermines the propriety of the

ongoing injunctive relief.

Lastly, Tyson argues that judicial estoppel barred the district court from

deciding this case because the movants argued in support of their Motion to Recall

Mandate that only this Court could correct its Prudential I opinion. Wyldes v.

Hundley, 69 F.3d 247, 251 (8th Cir. 1995) (“The principle of judicial estoppel ‘bars
-11-

a party from taking inconsistent positions in the same litigation.’”) (quoting Morris

v. California, 966 F.2d 448, 452 (9th Cir. 1991)). This Court has not articulated

clearly the elements of judicial estoppel but has held that judicial estoppel applies

only when a party takes a position that is “clearly inconsistent with its earlier

position.” Hossaini v. W. Mo. Med. Ctr., 140 F.3d 1140, 1143 (8th Cir. 1998). For

Tyson’s judicial estoppel argument to succeed, we must be convinced that the

movants argued to this Court not only that this Court alone could correct its prior

opinion but also that this Court alone could dissolve an injunction imposed at its

direction. See Leonard v. Southwestern Bell Corp. Disability Income Plan, 341 F.3d

696, 702 (8th Cir. 2003). After a careful review of the record, we are not convinced

that the movants’ claim that only this Court could correct its opinion is clearly

inconsistent with asking the district court to dissolve an injunction in light of a

change of law by the Supreme Court. Thus, we reject Tyson’s judicial estoppel

argument.

For these reasons, we hold that the district court had the authority to rule on the

movants’ Joint Motion. 

B. Implied Repeal

Before reaching the merits of the movants’ Joint Motion, we also must address

HMOP’s contention that Arkansas repealed the Arkansas PPA by implication when

it passed a point-of-service (“POS”) statute, the Freedom of Choice Among Health

Benefit Plans Act of 1999 (the “Freedom of Choice Act”), Ark. Code Ann. §§ 23-86-

401 – 23-86-406. 

The Freedom of Choice Act requires an HMO, such as HMOP, to offer covered

persons a plan option that makes the services of any provider available to them but

allows the plan to reimburse participants at a statutorily limited lower rate for services

received from out-of-network providers. Ark. Code Ann. § 23-86-404. Like the
4

At least two other states have both AWP and POS laws. See Ga. Code Ann.

§§ 33-30-25 (AWP) and 33-21-29 (POS); Va. Code Ann §§ 38.2-3407(B) (AWP) and

38.2-3407(D) (POS). 

5

The movants further attempt to support their argument that the Arkansas PPA

was not repealed by implication by noting that the Arkansas General Assembly

-12-

Arkansas PPA, the Freedom of Choice Act attempts to expand the number of

providers that health plan participants can utilize and still receive benefits under the

plan. 

Sharing the same general purpose, however, is insufficient for the implied

repeal of a statute under Arkansas law. Under Arkansas law, implied repeals are

strongly disfavored, and a court “will not find a repeal by implication if there is any

way to interpret the statutes harmoniously.” Neeve v. City of Caddo Valley, 91

S.W.3d 71, 74 (Ark. 2002). A court can find an implied repeal only if the two statutes

are in “irreconcilable conflict” or “the Legislature takes up the whole subject anew

and covers the entire ground of the subject matter of a former statute.” Uilkie v. State,

827 S.W.2d 131, 133-34 (Ark. 1992) (quotation omitted). 

There is no inherent inconsistency between AWP and POS laws.4

 Thus, to

demonstrate an “irreconcilable conflict” between the Arkansas PPA and the Freedom

of Choice Act, HMOP must show that these particular acts are in irreconcilable

conflict. We, however, find nothing in the plain language of the statutes to indicate

that the Arkansas PPA and the Freedom of Choice Act are in irreconcilable conflict.

Under Arkansas law, “statutes relating to the same subject are said to be in pari

materia and should be read in a harmonious manner, if possible.” R.N. v. J.M., 61

S.W.3d 149, 154 (Ark. 2001). Nothing in the plain language of either act indicates

that they cannot stand together. Routh Wrecker Serv., Inc. v. Wins, 847 S.W.2d 707,

709 (Ark. 1993) (holding that statutes that can stand together are not in irreconcilable

conflict).5

 
removed a provision explicitly repealing the Arkansas PPA from the Freedom of

Choice Act before that statute was passed. Under Arkansas law, however, a court can

employ legislative history only if the statute is not clear and unambiguous. See, e.g.,

Ark. Gas Consumers, Inc. v. Ark. Pub. Service Comm’n, 118 S.W.3d 109, 116 (Ark.

2003). Because we find the plain language of each statute to be clear, we see no need

to rely on legislative history in this case. 

-13-

Moreover, HMOP provides no evidence that the Freedom of Choice Act covers

the entire subject matter of the Arkansas PPA. In fact, the Arkansas PPA applies

much more broadly than the Freedom of Choice Act. The plain language of the

Freedom of Choice Act applies strictly to HMOs, which are only one among many

types of commercially available health insurance products in Arkansas. See Ark.

Code Ann. § 23-86-404 (applying the statute only to HMOs). In contrast, the

Arkansas PPA applies to many types of health care insurance. See Ark. Code Ann.

§ 23-99-203(f) (defining “health care insurer”). The limited scope of the Freedom of

Choice Act demonstrates that it does not cover the entire subject matter covered by

the Arkansas PPA.

Consequently, we reject HMOP’s assertion that the Freedom of Choice Act

repealed the Arkansas PPA by implication. 

C. ERISA Preemption

ERISA “is a comprehensive statute that sets certain uniform standards and

requirements for employee benefit plans.” Minn. Ch. of Associated Builders &

Contractors, Inc. v. Minn. Dep’t of Pub. Safety, 267 F.3d 807, 810 (8th Cir. 2001)

(quotations omitted). Congress enacted ERISA to regulate comprehensively certain

employee benefit plans and “to protect the interests of participants in these plans by

establishing standards of conduct, responsibility, and obligations for fiduciaries.”

Johnston v. Paul Revere Life Ins. Co., 241 F.3d 623, 628 (8th Cir. 2001); see 29

U.S.C. § 1001. “‘To meet the goals of a comprehensive and pervasive Federal
-14-

interest and the interests of uniformity with respect to interstate plans, Congress

included an express preemption clause in ERISA for the displacement of State action

in the field of private employee benefit programs.’” Minn. Ch. of Associated Builders

& Contractors, 267 F.3d at 810-11 (quoting Wilson v. Zoellner, 114 F.3d 713, 715-16

(8th Cir. 1997) (internal citations and quotations omitted)). 

There are two types of preemption under ERISA: “complete preemption” under

ERISA § 502, 29 U.S.C. § 1132, and “express preemption” under ERISA § 514, 29

U.S.C. § 1144. Complete preemption occurs whenever Congress “so completely

[preempts] a particular area that any civil complaint raising this select group of claims

is necessarily federal in character.” Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64

(1987). “Claims arising under the civil enforcement provision of Section 502(a) of

ERISA, 29 U.S.C. § 1132(a), including a claim to recover benefits or enforce rights

under the terms of an ERISA plan, implicate one such area of complete preemption.”

Neumann v. AT&T Communications, Inc., 376 F.3d 773, 779 (8th Cir. 2004).

Because of complete preemption, any claim filed by a plan participant for the same

relief provided under ERISA’s civil enforcement provision, even a claim purportedly

raising only a state-law cause of action, arises under federal law and is removable to

federal court. Id. at 779-80; see also Fink v. Dakotacare, 324 F.3d 685, 688-89 (8th

Cir. 2003). 

In contrast, ERISA’s express preemption clause preempts any state law that

“relate[s] to any employee benefit plan.” 29 U.S.C. § 1144(a). Although express

preemption does not allow for automatic removal to federal court, it does provide an

affirmative defense against claims not completely preempted under ERISA § 502.

Ellis v. Liberty Life Assurance Co. of Boston, 394 F.3d 262, 275 n.34 (5th Cir. 2004);

cf. Magee v. Exxon Corp., 135 F.3d 599, 601 (8th Cir. 1998). 

Both our decision in Prudential I and the Supreme Court’s decision in Miller

only considered whether the respective AWP laws were preempted under ERISA’s
-15-

express preemption clause. For that reason, we begin our analysis of ERISA

preemption by determining whether the Miller decision compels us to overturn our

Prudential I holding that ERISA § 514 expressly preempts the Arkansas PPA in its

entirety. Pursuant to our analysis below, we hold that Miller mandates that we affirm

the district court’s dissolution of the Prudential I injunction with regard to insured

ERISA plans and non-ERISA plans. Miller, however, did not involve the issue of

whether the Kentucky AWP statutes were preempted with regard to self-funded

ERISA plans such as the Tyson plan. With regard to self-funded ERISA plans, we

reverse the district court’s dissolution of the Prudential I injunction and remand to

the district court to enter judgment consistent with this opinion. Finally, our holding

that the Arkansas PPA can be enforced against insured ERISA plans compels us to

consider, as a matter of first impression, whether ERISA’s civil enforcement

provision completely preempts the civil penalties provision of the Arkansas PPA,

Ark. Code Ann. § 23-99-207. Following the Supreme Court’s recent decision in

Aetna Health Inc. v. Davila, 124 S. Ct. 2488 (2004), we hold that ERISA completely

preempts the civil penalties provision of the Arkansas PPA as applied to suits that

could have been brought under ERISA § 502, and we remand to the district court to

enter judgment consistent with this opinion.

1. Express preemption under ERISA § 514

ERISA’s “express preemption” clause states that, “[e]xcept as provided [in the

act], the provisions of this subchapter and subchapter III of this chapter shall

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

employee benefit plan described in section 1003(a) of this title and not exempt under

section 1003(b) of this title.” 29 U.S.C. § 1144(a). ERISA’s broad preemption of

state law is limited by the “savings clause,” under which ERISA shall not “be

construed to exempt or relieve any person from any law of any State which regulates

insurance . . . .” 29 U.S.C. § 1144(b)(2)(A). ERISA’s exemption from preemption

for “any law . . . which regulates insurance,” however, has one express exception.
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The “deemer clause” provides that no self-funded ERISA plan “shall be deemed to

be an insurance company or other insurer . . . or to be engaged in the business of

insurance . . . for purposes of any law of any State purporting to regulate insurance

companies [or] insurance contracts . . . .” 29 U.S.C. § 1144(b)(2)(B). In other words,

even if a state law is saved from preemption because it relates to insurance, the

deemer clause prevents the application of that law to self-funded ERISA plans.

Because the savings clause is most relevant to insured ERISA plans, such as

any plan offered by HMOP, while the deemer clause applies only to self-funded

ERISA plans, such as the Tyson plan, we consider each clause in turn.

a. Savings clause

The parties do not contest that but for the savings clause, ERISA preempts the

Arkansas PPA as a statute that relates to an employee benefit plan, an issue that was

a significant part of our analysis in Prudential I. 154 F.3d at 818-26; 29 U.S.C. §

1144(a). After first establishing in Prudential I that the Arkansas PPA relates to an

employee benefit plan, we used the two-faceted analysis introduced by the Supreme

Court in Metropolitan Life Insurance Co. v. Massachusetts, 471 U.S. 724 (1985), and

reaffirmed in Pilot Life Insurance Co. v. Dedeaux, 481 U.S. 41 (1987), to conclude

that the Arkansas PPA was not a law that regulates insurance, and, therefore, it was

not saved from preemption. 154 F.3d at 826-31. 

Applying the Metropolitan Life analysis, this Court considered, first, whether

the Arkansas PPA “regulates insurance” under a “common sense view,” and, second,

whether the Arkansas PPA “regulates insurance” under the three factors used to

interpret the “business of insurance” reference in the McCarran-Ferguson Act, 15

U.S.C. §§ 1011 – 1015. See Metro. Life, 471 U.S. at 740, 743. We first concluded

that “the Arkansas PPA is not a state law that ‘regulates insurance’ under a commonsense approach . . . because it is not a law that is ‘specifically directed toward that
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industry.’” Prudential I, 154 F.3d at 829 (quoting Pilot Life, 481 U.S. at 50; citing

United of Omaha v. Business Men’s Assurance Co. of Am., 104 F.3d 1034, 1039 (8th

Cir. 1997)). We also concluded that “[n]or does the Arkansas PPA satisfy any of the

McCarran-Ferguson factors identified in Metropolitan Life.” Prudential I, 154 F.3d

at 829. Thus, we held that under both the common-sense approach and the

McCarran-Ferguson factors, the Arkansas PPA was not a law that regulates insurance

and was not saved from preemption under ERISA. Id. at 830.

In Miller, the Supreme Court expressly repudiated the relevance of the

McCarran-Ferguson factors to the savings clause analysis and held that “for a state

law to be deemed a ‘law . . . which regulates insurance’ under § 1144(b)(2)(A), it

must satisfy two requirements.” 538 U.S. 329, 341-42. Those two requirements are

the following: “First, the state law must be specifically directed toward entities

engaged in insurance,” and second, “the state law must substantially affect the risk

pooling arrangement between the insurer and the insured.” Id. at 342 (citations

omitted). 

Neither HMOP nor Tyson contest that the Arkansas PPA satisfies the second

prong of Miller, nor should they. As the Supreme Court explained in Miller: “By

expanding the number of providers from whom an insured may receive health

services, AWP laws alter the scope of permissible bargains between insurers and the

insured,” and, as a result, substantially affect “the type of risk pooling arrangements

that insurers may offer.” Id. at 338-39; see also Metro. Life, 471 U.S. at 744-47

(holding that mandated-benefit laws are laws that regulate the terms of insurance

contracts and, as such, regulate insurance); Rush Prudential HMO, Inc. v. Moran, 536

U.S. 355, 366-67 (2002) (holding that because HMOs spread risk in the manner of

insurers, independent-review provisions are saved from preemption). Thus, to

determine whether the Arkansas PPA regulates insurance for the purposes of

ERISA’s savings clause, this Court need only determine whether the Arkansas PPA

is specifically directed toward entities engaged in insurance. 
6

As this court recognized in Prudential I, whether the Arkansas PPA expressly

regulated “health care insurers” rather than “health benefit plans” is not

determinative. See, e.g., Prudential I, 154 F.3d at 829. In Miller, the Supreme Court

liberally interchanged discussion of “health benefit plans” and “health care insurers”

because the two Kentucky statutes differed as to what they expressly regulated. 

Miller, 538 U.S. at 331-32 & passim. Thus, under Miller, an AWP statute can be

-18-

Addressing the first prong of the Miller test, HMOP and Tyson both argue that

by requiring a state law to be “specifically directed toward entities engaged in

insurance,” the Supreme Court effectively reaffirmed the common-sense test of

Metropolitan Life and Pilot Life. Because we held in Prudential I that the Arkansas

PPA did not regulate insurance under the common-sense approach, HMOP and Tyson

contend that Miller did not affect the validity of our analysis in that case. Admittedly,

the Supreme Court in Miller cited Pilot Life for the proposition that “a state law must

be ‘specifically directed toward’ the insurance industry in order to fall under ERISA’s

savings clause; laws of general application that have some bearing on insurers do not

qualify.” Miller, 538 U.S. at 334 (quoting Pilot Life, 481 U.S. at 50). While the

source of the standard may have remained the same, how that standard was applied

by this Court in Prudential I did not. 

The Miller Court rejected the reasons that this Court advanced in Prudential

I to support our holding that the Arkansas PPA was not specifically directed toward

insurance or the insurance industry under the “common sense” test. First, the

Prudential I Court stated that the Arkansas PPA was not directed toward insurance

because it created an opportunity for providers to participate in health plans.

Prudential I, 154 F.3d at 829. In contrast, the Miller Court held that the Kentucky

AWP laws are specifically directed toward entities engaged in insurance even though

“as a consequence of Kentucky’s AWP laws, entities outside the insurance industry

(such as health-care providers) will be unable to enter into certain agreements with

Kentucky insurers.” Miller, 538 U.S. at 335.6
saved from preemption whether it regulates health benefit plans or insurers that

provide health benefit plans. 

-19-

Second, the Prudential I Court stated that the Arkansas PPA’s definitions of

“health benefit plans” and “health care insurers” go too far “beyond the scope of the

insurance industry” to be specifically directed toward entities engaged in insurance.

Prudential I, 154 F.3d at 829 (citing Pilot Life, 481 U.S. at 50). The Prudential I

Court stated both that “[a]n act that purports to regulate ‘health benefit plans’ defined

so broadly as to include employers and administrators of self-insured plans, as well

as traditional insurance, simply does not fit within a common-sense view of a law

directed specifically toward the insurance industry,” and that “the statutory term

‘health care insurers’ also goes well beyond the scope of the insurance industry,”

because its statutory definition includes not only insurance companies but also

HMOs, preferred provider organizations, physician hospital organizations, third-party

administrators, and other entities not regularly thought to be in the insurance industry.

Id. 

In Miller, however, the Supreme Court expressly rejected the argument that a

law does not regulate insurance for purposes of the savings clause if it regulates more

than traditional insurance companies. In rejecting this argument, the Supreme Court

returned to the plain language of the savings clause by noting that “ERISA’s savings

clause does not require that a state law regulate ‘insurance companies’ or even ‘the

business of insurance’ to be saved from pre-emption; it need only be a ‘law . . . which

regulates insurance’ . . . and self-insured plans engage in the same sort of risk pooling

arrangements as separate entities that provide insurance to an employee benefit plan.”

Miller, 538 U.S. at 336 n.1. In addition, the Miller Court stated that the Kentucky

AWP laws were saved from preemption even though both laws “apply to . . . HMOs

that do not act as insurers but instead provide only administrative services to selfinsured plans” because “administering self-insured plans . . . suffices to bring them

within the activity of insurance” under the savings clause. Id.; see also Rush
7

In addition, we note that in Rush Prudential the Supreme Court emphasized

that with regard to the savings clause “‘there is no ERISA preemption without clear

manifestation of congressional purpose.’” Rush Prudential, 536 U.S. at 387 (quoting

Pegram v. Herdrich, 530 U.S. 211, 236 (2000). Although the Prudential I Court

acknowledged this “presumption” against preemption when interpreting the general

applicability of ERISA’s express preemption clause, after Rush Prudential, we must

recognize the same presumption in our application of the savings clause as well.

Prudential I, 154 F.3d at 822. 

-20-

Prudential, 536 U.S. at 372 (stating that “some overbreadth” in the application of

Illinois’s independent-review laws provides “no reason to think Congress would have

meant such minimal application to noninsurers to remove a state law entirely from the

category of insurance regulation saved from preemption”). As Miller makes plain,

it is not the case that a statute must regulate only traditional insurance companies to

be a statute specifically directed toward entities engaged in insurance. Rather, that

statute need only regulate entities engaged in the activity of insuring.7

For the above reasons, we hold that the Supreme Court’s decision in Miller

undermined our prior reasoning in Prudential I. While the Miller Court’s rejection

of our prior reasoning to support the conclusion that the Arkansas PPA was not saved

from express preemption under ERISA does not necessarily compel a holding that the

Arkansas PPA is saved from preemption, we see no reason why the Miller Court’s

reasoning would not require such a result in this case. In particular, the Miller

Court’s holding that a law that regulates non-insuring entities can be saved from

preemption eliminates any concern about whether the Arkansas PPA is specifically

directed toward entities engaged in insurance. See Miller, 538 U.S. at 336 n.1. Thus,

under the first prong of Miller’s two-step test, we hold that the Arkansas PPA is a

“state law . . . specifically directed toward entities engaged in insurance,” as that

standard was applied in Miller. Id. at 342.
8

Compare, e.g., Ark. Code Ann. § 23-99-204(a)(3) (“A health care insurer shall

not, directly or indirectly . . . (3) Prohibit or limit a health care provider . . . willing

to accept the health benefit plan’s operating terms and conditions, schedule of fees,

covered expenses, and utilization regulations and quality standards, from the

opportunity to participate in that plan.”), with Ky. Rev. Stat. Ann. § 304.17A-270 (“A

health insurer shall not discriminate against any provider. . . who is willing to meet

the terms and conditions for participation established by the health insurer. . . .”). 

9

Compare Ark Code Ann. § 23-99-203(f) (“‘Health care insurer’ means any

entity, including but not limited to: (1) insurance companies; (2) hospital and medical

services corporations; (3) health maintenance organizations; (4) preferred provider

organizations; (5) physician hospital organizations; (6) third party administrators; and

(7) prescription benefit management companies, authorized to administer, offer, or

provide health benefit plans.”), with Ky. Rev. Stat. Ann. § 304.17A-170(7) (“‘Health

care insurer’ means any entity, including but not limited to insurance companies,

hospital and medical services corporations, health maintenance organizations,

preferred provider organizations, and physician hospital organizations, that is

authorized by the state of Kentucky to offer or provide health benefit plans, policies,

subscriber contracts, or any other contracts of similar nature which indemnify or

compensate health care providers for the provision of health care services.”); see also

Ark. Code Ann. § 23-99-203(c) (defining “health benefit plan”), and Ky. Rev. Stat.

Ann. § 304.17A-005(18) (defining “health benefit plan”).

-21-

HMOP attempts to distinguish Miller on the ground that the Arkansas PPA, by

its terms, applies to more non-insurance entities than the Kentucky AWP laws

considered in Miller. For that reason, HMOP argues that the Arkansas PPA is not

specifically directed toward entities engaged in insurance. Contrary to HMOP’s

contentions, we conclude that the relevant statutory provisions in the Kentucky AWP

laws are so similar to the Arkansas PPA as to require our conclusion that the

Arkansas PPA is saved from preemption. For example, all three statutes contain

similar prohibition clauses.8

 In addition, the Arkansas PPA’s definitions of “health

care insurer” and “health benefit plan,” which HMOP claims to be much broader than

the Kentucky AWP laws considered in Miller, possess meaningful cognates in the

Kentucky laws.9

 The Arkansas PPA, like the Kentucky AWP laws, aims to compel
-22-

every health benefit plan to allow any willing and otherwise eligible provider into its

provider network. In Miller, the Supreme Court held that this aim constituted

regulating insurance under ERISA’s savings clause, and we see no reason why that

conclusion should not be applied to the Arkansas PPA.

Therefore, applying the Miller Court’s two-pronged savings-clause test, the

Arkansas PPA is a “law . . . which regulates insurance,” and is saved from preemption

under ERISA § 514. As such, we affirm the district court’s dissolution of the

Prudential I injunction against the application of the Arkansas PPA to non-ERISA

plans and insured ERISA plans, including those offered by HMOP.

b. Deemer clause

With regard to self-funded ERISA plans, our ERISA preemption analysis does

not end with the savings clause. Instead, under the deemer clause a self-funded

ERISA plan, such as Tyson’s, cannot be deemed to be an insurance company or other

insurer subject to state regulation because of the savings clause. The Miller decision

only interpreted ERISA’s savings clause. The Miller Court did not consider the

effects of the deemer clause because no self-funded ERISA plan was a party to that

case. See Miller, 538 U.S. at 336 n.1 (“The deemer clause presents no obstacle to

Kentucky’s law, which reaches only those employee benefit plans ‘not exempt from

state regulation by ERISA.’”). Thus, we must consider whether, in light of the

deemer clause, Tyson’s self-funded ERISA plan is subject to regulation by the

Arkansas PPA. Following recent Supreme Court decisions applying the deemer

clause, we hold that it is not.

Similar to the Kentucky statutes considered in Miller, the Arkansas PPA

provides that it “shall not apply to self-funded or other health benefit plans that are

exempt from state regulation by virtue of [ERISA].” Ark. Code Ann. § 23-99-209.

Under this exemption, self-funded ERISA plans, such as Tyson’s, are not directly
-23-

regulated by the Arkansas PPA. Recognizing this exemption, the movants argue that

because Tyson contracts with insurance companies for access to their provider

networks, the Arkansas PPA can indirectly regulate the Tyson plan through those

third-party insurance companies. 

As support for this argument, the movants reference the Supreme Court’s

statement in Miller that non-insuring entities administering self-insured plans are

engaged in the activity of insurance for the purpose of the savings clause. Miller, 538

U.S. at 336 n.1 (“[N]oninsuring HMOs would be administering self-insured plans,

which we think suffices to bring them within the activity of insurance for purposes

of [the savings clause].”). The movants, however, take this statement out of context.

The Miller Court’s discussion of third-party administrators came as a response to an

argument against the application of the savings clause to the Kentucky AWP laws –

namely that the application of those laws to non-insuring HMOs prevents the laws

from being specifically directed toward entities engaged in insurance. Id. In Miller,

the Supreme Court focused solely on the application of the savings clause. The

movants’ argument here fails because it ignores the application of the deemer clause

to self-funded ERISA plans, a non-issue in Miller, but the controlling issue in this

case with regard to the Tyson plan. 

The Supreme Court has noted repeatedly that because of the deemer clause,

statutes that indirectly regulate self-funded ERISA plans are not saved from

preemption to the extent such statutes apply to self-funded plans. See Rush

Prudential, 536 U.S. at 371 n.6 (noting that because of the deemer clause, an Illinois

independent review statute “would not be ‘saved’ as an insurance law” to the extent

it indirectly applied to self-funded plans); FMC Corp. v. Holliday, 498 U.S. 52, 64

(1990) (“Our interpretation of the deemer clause makes clear that if a plan is insured,

a State may regulate it indirectly through regulation of its insurer and its insurer’s

insurance contracts; if the plan is uninsured, the State may not regulate it.”); Metro.

Life, 471 U.S. at 747 (“We are aware that our decision results in a distinction between
10Our holding concerning express preemption, that the Arkansas PPA is

preempted as applied to self-funded ERISA plans but not preempted as to all other

health benefit plans, acknowledges the distinction between ERISA and non-ERISA

health benefit plans made in the original district court opinion in this matter. See

Prudential Ins. Co. of Am. v. Nat’l Park Med. Ctr., 964 F.Supp. at 1299-1300

(holding the Arkansas PPA was preempted, but only as applied to ERISA plans).

Because ERISA does not apply to non-ERISA plans, ERISA could not preempt a

statute as applied to those plans. To the extent that the Prudential I injunction

covered non-ERISA plans, that injunction should be dissolved.

-24-

insured and uninsured plans, leaving the former open to indirect regulation while the

latter are not. By so doing we merely give life to a distinction created by Congress

in the ‘deemer clause,’ a distinction Congress is aware of and one it has chosen not

to alter.”). Nothing in Miller indicates a change in the Court’s deemer-clause

analysis. Thus, we hold that not only does the Arkansas PPA exempt the Tyson plan

and other self-funded ERISA plans from direct regulation but also that ERISA

preempts any indirect state regulation of those plans because of the deemer clause.

For the above reasons, we reverse the district court’s dissolution of the

Prudential I injunction against the enforcement of the Arkansas PPA with respect to

self-funded ERISA plans. We remand to the district court with directions to enter an

injunction prohibiting both direct and indirect enforcement of the Arkansas PPA

against self-funded ERISA plans, such as the Tyson plan.10

2. Complete preemption under ERISA § 502

Because we hold that ERISA saves the Arkansas PPA from preemption with

respect to insured ERISA health benefit plans, we must now consider an issue that

was not presented to the Prudential I Court: whether the doctrine of complete

preemption under ERISA applies to the Arkansas PPA’s civil penalties provision,

Ark. Code Ann. § 23-99-207. We hold that ERISA’s civil enforcement provision
-25-

completely preempts the Arkansas PPA’s civil penalties provision, but only with

respect to suits that could have been brought under ERISA.

Unlike the Kentucky statutes the Supreme Court considered in Miller, the

Arkansas PPA contains a civil penalties provision. That provision states that, “Any

person adversely affected by a violation of this subchapter may sue in a court of

competent jurisdiction for injunctive relief against the health care insurer and, upon

prevailing, shall, in addition to such relief, recover damages of not less than one

thousand dollars ($1,000), attorney’s fees, and costs.” Ark. Code Ann. § 23-99-207.

Invoking the doctrine of complete preemption discussed above, HMOP contends that

ERISA’s civil enforcement provision completely preempts the enforcement of the

civil penalties provision of the Arkansas PPA, and, as a consequence, this Court

should enjoin enforcement of that section.

In Aetna Health Inc. v. Davila, the Supreme Court held that “any state-law

cause of action that duplicates, supplements, or supplants the ERISA civil

enforcement remedy conflicts with the clear congressional intent to make the ERISA

remedy exclusive and is therefore pre-empted.” Davila, 124 S. Ct. at 2495 (citing

Pilot Life, 481 U.S. at 54-56). A state cause of action is completely preempted under

ERISA “if an individual, at some point in time, could have brought his claim under

[ERISA § 502], and where there is no other independent legal duty that is implicated

by a defendant’s actions.” Id. at 2496. In addition, even a state law that is saved

from express preemption under ERISA § 514 “will be pre-empted if it provides a

separate vehicle to assert a claim for benefits outside of, or in addition to, ERISA’s

remedial scheme.” Id. at 2500. The Supreme Court emphasized that a state-law

cause of action need not duplicate an ERISA provision to be preempted. Id. at 2499.

Rather, a state-law cause of action is preempted if it arises from a duty created by

ERISA or the terms of the relevant health benefit plan. Id. at 2497-99 (holding that

the alleged “tort” duty “to exercise ordinary care” under the Texas Health Care
-26-

Liability Act did not arise independently of the “contract” duties actionable under

ERISA or the plan’s terms).

The “comprehensive legislative scheme” of ERISA § 502 creates “six carefully

integrated civil enforcement provisions.” Mass. Mut. Life Ins. Co. v. Russell, 473

U.S. 134, 146 (1985); see also Davila, 124 S. Ct. at 2495. Most relevant to the

Arkansas PPA’s civil penalties provision, ERISA § 502(a)(1)(B) provides that “[a]

civil action may be brought . . . by a participant or beneficiary . . . to recover benefits

due to him under the terms of his plan, to enforce his rights under the terms of the

plan, or to clarify his rights to future benefits under the terms of the plan . . . .” 29

U.S.C. § 1132(a)(1)(B). Under ERISA § 502, any suit by a plan participant to enforce

benefits wrongly denied that participant would be completely preempted. Thus, any

suits by plan participants brought under the civil penalty provision of the Arkansas

PPA because the plan denied reimbursement to the participant for services from an

otherwise qualified and willing provider are completely preempted. 

We, however, offer no opinion as to the exact scope of this preemption

because the Arkansas PPA’s civil penalties provision extends to “[a]ny person

adversely affected by a violation” of the Arkansas PPA and invites a number of

possible suits that would require speculation beyond the scope of this appeal. Rather,

we hold generally that with respect to any cause of action brought under Ark. Code

Ann. § 23-99-207 that could have been brought under ERISA, the Arkansas PPA is

preempted and the resulting cause of action is recharacterized as an action brought

under ERISA. Such a cause of action is removable to federal court. See, e.g., Hull

v. Fallon, 188 F.3d 939, 942 (8th Cir. 1999).

Accordingly, we reverse the district court’s dissolution of the Prudential I

injunction against the enforcement of the civil penalties provision of the Arkansas

PPA as applied to any cause that could have been brought under ERISA § 502 and

remand to the district court to enter judgment consistent with this opinion.
-27-

III. CONCLUSION

Based on the foregoing, we hold that the Arkansas PPA is saved from

preemption under ERISA § 514 except with regard to self-funded ERISA plans. We

also hold that ERISA § 502 completely preempts the civil penalties provision of the

Arkansas PPA, Ark. Code Ann. § 99-23-207, with respect to any cause of action that

could have been brought under ERISA. 

Therefore, we affirm the district court’s dissolution of the Prudential I

injunction except for the following: (1) we reverse the district court’s dissolution of

the Prudential I injunction with regard to self-funded ERISA plans, and (2) we

reverse the district court’s dissolution of the Prudential I injunction with regard to

any cause of action brought under the Arkansas PPA’s civil penalties provision that

could have been brought under ERISA § 502. 

Consequently, we affirm in part, reverse in part, and remand to the district court

to enter judgment consistent with this opinion.

______________________________