No. 14-181

In the Supreme Court of the United States

ALFRED GOBEILLE, IN HIS OFFICIAL CAPACITY AS CHAIR 

OF THE VERMONT GREEN MOUNTAIN CARE BOARD,

PETITIONER

v.

LIBERTY MUTUAL INSURANCE COMPANY

ON PETITION FOR A WRIT OF CERTIORARI 

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

M. PATRICIA SMITH

Solicitor of Labor

G. WILLIAM SCOTT

Associate Solicitor

NATHANIEL I. SPILLER

Counsel

MELISSA MOORE

Attorney

Department of Labor

Washington, D.C. 20210

DONALD B. VERRILLI, JR. Solicitor General

Counsel of Record

EDWIN S. KNEEDLER

Deputy Solicitor General

JOHN F. BASH

Assistant to the Solicitor 

General

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217
QUESTION PRESENTED

Whether the Employee Retirement Income Security Act of 1974, 29 U.S.C. 1001 et seq., preempts, as 

applied to self-insured health benefit plans or their 

third-party administrators, a Vermont statute that

requires healthcare payers to report claims and 

healthcare-services data to a state agency.

(I)
TABLE OF CONTENTS

Page

Interest of the United States ........................................................1

Statement.........................................................................................1

Discussion ........................................................................................9

Conclusion......................................................................................23

TABLE OF AUTHORITIES

Cases:

Boggs v. Boggs, 520 U.S. 833 (1997)................................13, 17

California Div. of Labor Standards Enforcement v. 

Dillingham Constr., N.A., 519 U.S. 316 

(1997)............................................................7, 8, 11, 12, 13, 14

De Buono v. NYSA-ILA Med. & Clinical Servs. 

Fund, 520 U.S. 806 (1997) .......................................12, 14, 15

Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141 

(2001)..........................................................................12, 15, 17

FMC Corp. v. Holliday, 498 U.S. 52 (1990) .........................17

Fort Halifax Packing Co. v. Coyne, 482 U.S. 1 (1987).......13

Kentucky Ass’n of Health Plans, Inc. v. Miller, 

538 U.S. 329 (2003) ................................................................. 8

Massachusetts v. Morash, 490 U.S. 107 (1989)...................13

New York State Conference of Blue Cross & Blue 

Shield Plans v. Travelers Ins. Co., 514 U.S. 645 

(1995)......................................................................7, 11, 14, 15

Pegram v. Herdich, 530 U.S. 211 (2000) ..............................14

Self-Insurance Inst. of Am., Inc. v. Snyder, 761 F.3d 

631 (6th Cir. 2014), petition for cert. pending, 

No. 14-741 (filed Dec. 18, 2014)...............................19, 20, 21

Shaw v. Delta Air Lines, Inc., 463 U.S. 85 (1983) ..........7, 11

(III) 
IV

Case—Continued: Page

Standard Oil Co. v. Agsalud, 633 F.2d 760 (9th Cir. 

1980), summarily aff’d, 454 U.S. 801 (1981)......................13

Statutes, regulations and rules:

Employee Retirement Income Security Act of 1974, 

29 U.S.C. 1001 et. seq. ............................................................1

29 U.S.C. 1001(b) ....................................................................1

29 U.S.C. 1021(b) ....................................................................2

29 U.S.C. 1021(c).....................................................................2

29 U.S.C. 1021(d) ....................................................................2

29 U.S.C. 1023 .........................................................................2

29 U.S.C. 1024(a) ....................................................................2

29 U.S.C. 1024(a)(3)................................................................2

29 U.S.C. 1102(a)(1)................................................................2

29 U.S.C. 1103(a) ....................................................................2

29 U.S.C. 1104(a)(1)(D)........................................................17

29 U.S.C. 1132(a)(5)................................................................2

29 U.S.C. 1134 .........................................................................2

29 U.S.C. 1143(a)(1)................................................................3

29 U.S.C. 1144(a) ....................................................2, 7, 11, 17

29 U.S.C. 1144(b)(2)(A)..........................................................8

Health Insurance Portability and Accountability Act 

of 1996, Pub. L. No. 104-191, 110 Stat. 1936 .....................18

42 U.S.C. 1315a(a)(1)...............................................................22

42 U.S.C. 1315a(b)(2)(B) .........................................................22

42 U.S.C. 1315a(b)(4)...............................................................22

42 U.S.C. 1395kk......................................................................22
V

Statutes, regulations and rules—Continued: Page

2013 Vt. Acts & Resolves 724-727........................................4, 9

2012 Vt. Acts & Resolves 57 .....................................................5

Vt. Stat. Ann. tit. 18:

§ 9374(i) (Supp. 2014).............................................................4

§ 9374(i)-(j) (Supp. 2014)......................................................10

§ 9402(17) (2012) .....................................................................3

§ 9410 (Supp. 2014).................................................................4

§ 9410(a) (Supp. 2014) ............................................................3

§ 9410(a)(1) (Supp. 2014) .................................................3, 14

§ 9410(c)-(d) (Supp. 2014) ......................................................3

§ 9410(c)(1) (Supp. 2014)........................................................3

§ 9410(c)(3) (Supp. 2014)........................................................3

§ 9410(e) (Supp. 2014) ..........................................................18

§ 9410(g) (Supp. 2014)............................................................4

§ 9410(h)(3) (Supp. 2014) .....................................................18

§ 9412(a) (2012) .................................................................4, 10

29 C.F.R.:

Section 2520.103-1 ..................................................................2

Section 2520.104-20 ................................................................2

Section 2520.104-44 ................................................................2

Reg. H-2008-01, 21-040-021 Vt. Code R. (2008).....................4

§ 3 (Ab).....................................................................................4

§ 3 (As) .....................................................................................4

§ 3 (X).......................................................................................4

§ 4 (D).......................................................................................4

§§ 5-8 ........................................................................................4
VI

Rules—Continued: Page

Fed. R. App. P. 43(c)(2) ............................................................9

Sup. Ct. R. 35.3 ....................................................................9, 11

Miscellaneous:

Ctrs. for Disease Control & Prevention, CDC’s Assessment Initiative Cooperative Agreement: New 

Hampshire, http://www.cdc.gov/ai/states/nh.html 

(last visited May 19, 2015) ...................................................21

Ctrs. for Medicare & Medicaid Servs., Rate Review 

Cycle III Funding Opportunity: Frequently 

Asked Questions, http://www.cms.gov/CCIIO/

Resources/Fact-Sheets-and-FAQs/rr-foa-faq6-6-2013.html (last visited May 19, 2015) ..........................21
In the Supreme Court of the United States

No. 14-181

ALFRED GOBEILLE, IN HIS OFFICIAL CAPACITY AS 

CHAIR OF THE VERMONT GREEN MOUNTAIN CARE 

BOARD, PETITIONER

v.

LIBERTY MUTUAL INSURANCE COMPANY

ON PETITION FOR A WRIT OF CERTIORARI 

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

INTEREST OF THE UNITED STATES

This brief is submitted in response to the order of 

this Court inviting the Solicitor General to express the 

views of the United States. In the view of the United 

States, the petition for a writ of certiorari should be 

denied.

STATEMENT

1. The Employee Retirement Income Security Act 

of 1974 (ERISA), 29 U.S.C. 1001 et seq., is designed to 

“protect * * * the interests of participants in employee benefit plans and their beneficiaries * * * by 

establishing standards of conduct, responsibility, and 

obligation for fiduciaries of employee benefit plans, 

and by providing for appropriate remedies, sanctions, 

and ready access to the Federal courts.” 29 U.S.C. 

(1)
2

1001(b). The statute requires every plan to be established and maintained pursuant to a written instrument and to have named fiduciaries who have authority to control and manage the administration of the 

plan and its assets. 29 U.S.C. 1102(a)(1), 1103(a). 

With specific exceptions, ERISA preempts “any and

all State laws insofar as they * * * relate to any 

employee benefit plan” covered by the statute. 29 

U.S.C. 1144(a).

Various provisions of ERISA impose reporting requirements on plans. Plan administrators generally 

must file detailed financial and actuarial information 

with the Secretary of Labor (Secretary). See 29 

U.S.C. 1021(b), 1023, 1024(a). In addition, plan administrators must file reports with the Secretary when 

certain events occur, such as when a pension plan 

winds up its affairs, 29 U.S.C. 1021(c), or when the 

employer fails to make a payment required under 

ERISA’s minimum funding standard, 29 U.S.C. 

1021(d). Under 29 U.S.C. 1024(a)(3), however, the 

Secretary has exempted welfare plans from most 

reporting requirements. See 29 C.F.R. 2520.103-1, 

2520.104-20, 2520.104-44. Only when a welfare plan’s

assets are held in trust must it provide the Secretary 

with financial information. 29 C.F.R. 2520.103-1.

In addition, the Secretary has broad authority to 

investigate health plans for enforcement purposes. 

See 29 U.S.C. 1132(a)(5) (authority to enforce statutory provisions or enjoin violations); 29 U.S.C. 1134 

(authority to investigate). Such investigations typically entail the inspection of plan documents, administrative contracts, and claims records to determine 

whether breaches of fiduciary duty or violations of the 

claims-processing rules have occurred or whether a 
3 

plan is out of compliance with other legal requirements. ERISA also authorizes the Secretary “to undertake research and surveys and in connection therewith to collect, compile, analyze and publish data, information, and statistics relating to employee benefit 

plans.” 29 U.S.C. 1143(a)(1).1 

2. a. A Vermont statute requires the Green Mountain Care Board (Board), a state agency, to maintain a 

healthcare-information database. Vt. Stat. Ann. tit. 

18, § 9402(17) (2012), id. § 9410(a) (Supp. 2014) (Database Statute). The database is designed to help the 

state government achieve a variety of health-policy 

objectives, including “identifying health care needs,” 

“comparing costs between various treatment settings 

and approaches,” “determining the capacity and distribution of existing resources,” and “providing information to consumers and purchasers of health care.” 

Id. § 9410(a)(1) (Supp. 2014). 

The Database Statute requires “[h]ealth insurers” 

and other entities to submit to the Board “reports, 

data, schedules, statistics, or other information” that 

the Board finds necessary. § 9410(c)-(d) (Supp. 2014). 

In particular, it authorizes the Board to require health 

insurers to file “health insurance claims and enrollment information” and “any other information relating to health care costs, prices, quality, utilization, or 

resources.” Id. § 9410(c)(1) and (3) (Supp. 2014). The 

Board is authorized to enforce the Database Statute

1

 The Secretary has informed this Office that, in aid of his authority to ensure compliance with ERISA’s fiduciary standards 

and claims-processing rules, the Secretary is currently considering 

undertaking a rulemaking to require health plans to report more 

detailed information about the cost of benefits, utilization of medical services, and plan administration. 

 
4

through the imposition of financial penalties, id. § 

9410(g) (Supp. 2014), and through its general subpoena power, Vt. Stat. Ann. tit. 18, § 9374(i) (Supp. 2014); 

id. § 9412(a) (2012).

In 2008, the Commissioner of the Vermont Department of Banking, Insurance, Securities and Health 

Care Administration (Commissioner), who had authority to enforce the Database Statute until June 7, 2013,

promulgated a regulation to implement the statute. 

See Reg. H-2008-01, 21-040-021 Vt. Code R. (2008)

(Database Regulation); see also 2013 Vt. Acts & Resolves 724-727 (transferring authority to administer 

statute to the Board). The Database Regulation provides that “[h]ealth insurers shall regularly submit 

medical claims data, pharmacy claims data, member 

eligibility data, provider data, and other information.” 

§ 4(D). It includes requirements for how the data 

must be formatted and when it must be submitted, as 

well as confidentiality protections. Id. §§ 5-8. The 

Database Regulation defines “[h]ealth insurer” to 

include any “third party administrator” and “to the 

extent permitted under federal law, any administrator 

of an insured, self-insured, or publicly funded health 

care benefit plan offered by public and private entities.” Id. § 3(X). It exempts health insurers with 

fewer than 200 enrolled or covered members from the 

reporting requirements (although they may voluntarily comply). Id. § 3(Ab) and (As). 

b. Respondent is the named fiduciary and administrator of an ERISA self-insured health plan covering 

80,000 individuals, 137 of whom are Vermont residents. Pet. App. 7, 50. A self-insured plan is one in 

which the plan sponsor pays claims out of its own 

assets, rather than contracting with an insurance 
5 

company to pay claims under an insurance policy. Id.

at 7. Self-insured plans may be administered by a 

third party, however, and respondent has contracted 

with Blue Cross Blue Shield of Massachusetts, Inc.

(Blue Cross) to serve as the plan’s third-party administrator in Vermont. In that capacity, Blue Cross 

handles administrative functions such as claims processing, bill review, and claims payments. Id. at 8, 50-

51. 

In August 2011, the Commissioner issued a subpoena to Blue Cross, seeking eligibility information 

and medical- and pharmacy-claims files for Vermont 

residents covered by respondent’s plan. Pet. App. 8-9. 

Respondent, believing that the request was preempted by ERISA, instructed Blue Cross not to comply

with the subpoena. Id. at 9. 

3. Respondent filed suit in the United States District Court for the District of Vermont against the 

Commissioner.

2

 Pet. App. 48. Respondent sought a 

declaratory judgment that the Database Statute and 

Database Regulation “are preempted by ERISA to 

the extent they require the reporting, production, or 

disclosure of any confidential health care information 

or medical records or data relating to [respondent’s

health benefit] [p]lan or its participants and beneficiaries.” Cert. Reply Br. App. 16. Respondent also 

sought to enjoin the Commissioner “from attempting 

to obtain, from [Blue Cross] or any other source, any 

medical records or data relating to the [p]lan or its 

participants and beneficiaries.” Id. at 17.

2

 Vermont’s Department of Banking, Insurance, Securities, and 

Health Care Administration was renamed the Department of 

Financial Regulation in 2012. 2012 Vt. Acts & Resolves 57; see 

Pet. App. 49 n.1.

 
6 

The Commissioner moved to dismiss the complaint 

for lack of standing and, alternatively, on the merits. 

D. Ct. Doc. 15, at 1 (Sept. 15, 2011). Respondent 

moved for summary judgment. D. Ct. Doc. 35 (June 

25, 2012). Respondent argued generally that, due to 

their asserted complexity, the Vermont reporting 

requirements impose burdens on the administration of 

its ERISA plan, but respondent did not submit any 

affidavits describing or quantifying the alleged burdens. See D. Ct. Docs. 35-37 (June 25, 2012).

The district court concluded that respondent had 

sufficiently alleged standing but granted the Commissioner’s motion to dismiss on the merits and denied 

respondent’s motion for summary judgment. Pet. 

App. 48-80. The court held that although 

“[c]ompliance with the reporting requirements * * * 

may have some indirect effect on health benefit 

plans,” the possible “effect is so peripheral that the 

regulation cannot be considered an attempt to interfere with the administration or structure of a welfare 

benefit plan.” Id. at 78. The court emphasized that 

respondent had “not submitted any information about 

any actual burden suffered by itself or [Blue Cross] in 

producing this information.” Id. at 73 n.5. 

4. Respondent appealed. The Acting Secretary of 

Labor filed an amicus brief in favor of the Commissioner in the court of appeals, arguing that ERISA 

does not preempt the Database Statute or Database 

Regulation. In a divided decision, the court of appeals 

reversed, holding that the Vermont reporting requirements are preempted. Pet. App. 1-47.3

 

3

 Every member of the panel agreed that respondent has standing. See Pet. App. 9-10; id. at 30 (Straub, J., dissenting in part and 

concurring in part).

 
7

a. The court of appeals began by explaining that 

under this Court’s construction of ERISA’s preemption provision, 29 U.S.C. 1144(a), “a state law is preempted if ‘it [1] has a connection with or [2] reference 

to [an ERISA] plan.’” Pet. App. 14 (brackets in original) (quoting Shaw v. Delta Air Lines, Inc., 463 U.S. 

85, 97 (1983)). The court of appeals further explained, 

however, that this Court has made clear that the 

preemption provision’s “relate to” requirement cannot 

be read literally, because “if the phrase ‘were taken to 

extend to the furthest stretch of its indeterminacy, 

then for all practical purposes pre-emption would 

never run its course.’” Id. at 19 (quoting New York 

State Conference of Blue Cross & Blue Shield Plans v. 

Travelers Ins. Co., 514 U.S. 645, 655 (1995) (Travelers)). The court of appeals understood this Court’s 

decisions to teach that “‘state statutes that mandate[] 

employee benefit structures or their administration’ 

have a ‘connection with’ ERISA plans and are therefore preempted.” Id. at 20 (brackets in original)

(quoting California Div. of Labor Standards Enforcement v. Dillingham Constr., N.A., 519 U.S. 316, 

328 (1997) (Dillingham)).

Applying those principles, the court of appeals held 

that “the reporting requirements of the Vermont 

statute and regulation have a ‘connection with’ ERISA 

plans (though no ‘reference to’ them)” and are therefore preempted. Pet. App. 23 (footnote omitted). 

Although the court cautioned that “[n]ot every state 

law imposing a reporting requirement is preempted,” 

id. at 24, it determined that “the reporting mandated 

by the Vermont statute and regulation is burdensome, 

time-consuming, and risky,” id. at 25. The court noted 

that Vermont could change the requirements at any 
8 

time, id. at 27, and it postulated that if respondent 

were subject to “one of several or a score of uncoordinated state reporting regimes,” the burden would be 

“obviously intolerable,” id. at 25.4

b. Judge Straub dissented in relevant part. Pet. 

App. 30-47 (dissenting in part and concurring in part). 

Adopting the view of the Acting Secretary’s amicus 

brief, he concluded that the Vermont reporting requirements do not have a sufficient “connection with” 

ERISA plans to fall under the preemption provision. 

Id. at 47. Judge Straub explained that in analyzing 

the preemption issue, “[t]he distinction between general administration and administration of plans, 

claims, and benefits is important.” Id. at 42. “Many 

state laws,” he continued, “may have an impact on the 

administration of an ERISA plan—for example, a 

work-place safety law, a prevailing wage law, or a law 

that requires companies to report employment data.” 

Ibid. Although “[s]uch laws may impose additional 

costs,” he concluded, “none of these laws impact how 

benefits are administered to beneficiaries and, therefore, they are not preempted by ERISA.” Ibid. (citing 

Dillingham, 519 U.S. at 319). Judge Straub also 

found that “on the record before [the court,]” no basis 

existed to conclude that the Vermont reporting requirements would “hinder the national administration 

of employment benefit plans in any way,” because 

4

 The court of appeals had no occasion to address whether its 

holding applies to insurance companies that insure ERISA plans. 

ERISA generally exempts from its preemption provision “any law 

of any State which regulates insurance, banking, or securities.” 29 

U.S.C. 1144(b)(2)(A); see Kentucky Ass’n of Health Plans, Inc. v. 

Miller, 538 U.S. 329, 341-342 (2003).

 
9

“[n]o new records need be kept” to comply with the 

reporting obligation. Id. at 44; see id. at 41-42.

5. Approximately one month before the court of 

appeals issued its decision, a Vermont statute transferred the responsibilities for administering the reporting requirements from the Commissioner to the 

Chair of the Board. See p. 4, supra. The Commissioner did not file a motion for substitution of parties 

in the court of appeals, see Fed. R. App. P. 43(c)(2), 

and she subsequently filed a petition for rehearing, 

which was denied, Pet. App. 81-82. The Chair of the 

Board, however, filed the petition for a writ of certiorari in this Court. The petition states that the Chair 

was automatically substituted for the Commissioner 

under Rule 35.3 of the Rules of this Court. See Pet. ii.

DISCUSSION

The court of appeals erred in holding that the Vermont reporting requirements that respondent challenges are preempted by ERISA. Moreover, with the 

encouragement of the federal government, other 

States are establishing similar healthcare databases 

to help improve health outcomes for their citizens, and 

thus the question presented has national importance.

But the decision of the court of appeals does not conflict with any decision of this Court or another court of 

appeals, and this Court’s consideration of the question 

would likely be aided by further percolation in the 

courts of appeals. Accordingly, the petition for a writ 

of certiorari should be denied.

1. As a threshold matter, petitioner, the Chair of 

the Board, is an appropriate party to seek certiorari 

review in this case. The Chair assumed the relevant 

responsibilities for administering the Database Statute on June 7, 2013. See 2013 Vt. Acts & Resolves
10

724-727 (transferring authority to administer statute 

to Board). Respondent seeks prospective relief in the 

form of a declaratory judgment that enforcement of 

the reporting requirements against petitioner is 

preempted by ERISA and an injunction barring any

attempt to “obtain, from [Blue Cross] or any other 

source, any medical records or data relating to the 

Plan or its participants and beneficiaries.” Cert. Reply Br. App. 16-17.

5

 Because the Chair of the Board 

now administers the reporting requirements and is

the state official who seeks to enforce respondent’s 

compliance with those requirements with respect to 

the subpoena in this case and would enforce its requirements in the future, prospective relief would 

properly run against the Chair, not the Commissioner. 

Respondent appears to argue (Br. in Opp. 10-13) 

that because the subpoena that prompted this case 

was issued under the Commissioner’s general subpoena power (at a time when the Commissioner administered the Database Statute), the Board’s power to 

enforce the Database Statute is not at issue. But the 

Chair of the Board also has a general subpoena power, 

see Vt. Stat. Ann. tit. 18, § 9374(i)-(j) (Supp. 2014); id.

§ 9412(a) (2012), and there is no question that, going 

forward, the Board would invoke its own subpoena 

power to enforce the Database Statute and Database 

Regulation. See Cert. Reply Br. 11-13. The gravamen 

of the challenge here concerns the obligations imposed 

5

 The court of appeals characterized the injunctive relief sought 

by respondent as relating only to the subpoena issued to Blue 

Cross. See Pet. App. 9. The complaint, however, seeks an injunction against any enforcement of the reporting requirements for 

records or data relating to respondent’s plan. See Cert. Reply Br. 

App. 17.

 
11

by the Database Statute and Database Regulation, not 

the particular source of subpoena authority. Accordingly, petitioner is correct that the Chair of the Board 

is the proper party to defend Vermont’s reporting 

requirements at this point in the proceedings.6

2. ERISA does not preempt the Database Statute 

or Database Regulation. 

a. ERISA’s preemption provision, 29 U.S.C. 

1144(a), provides that the statute “shall supersede any 

and all State laws insofar as they * * * relate to any 

employee benefit plan” covered by the statute. Ibid. 

This Court has long held that “[a] law ‘relates to’ an 

employee benefit plan, in the normal sense of the 

phrase, if it has a connection with or reference to such 

a plan.” Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 

96-97 (1983) (footnote omitted); see, e.g., New York 

State Conference of Blue Cross & Blue Shield Plans v.

Travelers Ins. Co., 514 U.S. 645, 656 (1995). 

A law has a “reference to” ERISA plans if the law 

“acts immediately and exclusively upon ERISA plans” 

or “the existence of ERISA plans is essential to the 

law’s operation.” California Div. of Labor Standards 

Enforcement v. Dillingham Constr., N.A., 519 U.S. 

316, 325-326 (1997). Barring such a reference, the 

Court “look[s] both to ‘the objectives of the ERISA 

statute as a guide to the scope of the state law that 

6

 Supreme Court Rule 35.3 does not by its terms provide for 

automatic substitution in the situation in which statutory authority 

has been transferred from one government official to another. For 

that reason, it may have been the wiser course for petitioner to file 

a motion for substitution of parties in the court of appeals or in this 

Court. If this Court concludes that a motion is necessary, it could 

treat the petition for a writ of certiorari as encompassing such a 

motion.

 
12

Congress understood would survive,’ as well as to the 

nature of the effect of the state law on ERISA plans,” 

to “determine whether [the] state law has the forbidden connection” with ERISA plans. Egelhoff v. 

Egelhoff ex rel. Breiner, 532 U.S. 141, 147 (2001) (quoting Dillingham, 519 U.S. at 325). Where a state law 

unrelated to the basic purposes of ERISA operates in 

an area of traditional state regulation, such as “matters of health and safety,” the fact that the law will 

have “some effect on the administration of ERISA 

plans” is insufficient for preemption, De Buono v. 

NYSA-ILA Med. & Clinical Servs. Fund, 520 U.S. 

806, 814, 816 (1997), particularly if the state law merely “alters the incentives, but does not dictate the 

choices, facing ERISA plans,” Dillingham, 519 U.S. at 

334. 

b. Under the foregoing standards, the Vermont reporting requirements are not preempted. Respondent

does not contest the court of appeals’ holding that the 

requirements lack any “reference to” ERISA plans. 

Pet. App. 23 & n.9. The requirements apply to “all 

health care payers,” not only to ERISA plans. Id. at 

23 n.9. And the requirements could readily operate 

independently of the existence of ERISA plans (although excluding ERISA plans would render Vermont’s database less comprehensive). See Dillingham, 519 U.S. at 326.

Accordingly, as the court of appeals correctly held, 

the key question in this case is whether the Vermont 

reporting requirements have the requisite “connection 

with” ERISA plans. In the view of the United States, 

Judge Straub was correct that, at least on the record 

before the court of appeals, the panel majority erred 

in holding that such a connection exists. That conclu-
13

sion follows both from the significant difference between the purpose of the Database Statute and 

ERISA’s reporting requirements and from the lack of 

any record evidence that the Vermont statute will 

have more than an incidental effect on respondent’s 

administration of its plan or its ability to comply with 

ERISA’s requirements.

As discussed above, ERISA imposes a number of 

reporting requirements on plans, such as the submission of financial and actuarial information to the Secretary. See pp. 2-3, supra. Those requirements serve 

the basic purposes of ERISA: to prevent the “mismanagement of funds accumulated to finance employee benefits and the failure to pay employees benefits 

from accumulated funds.” Dillingham, 519 U.S. at 

326-327 (quoting Massachusetts v. Morash, 490 U.S. 

107, 115 (1989)). Any state-law reporting requirements serving the same functions would raise a substantial preemption question. Cf. Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 12-13 & n.7 (1987) (discussing Standard Oil Co. v. Agsalud, 633 F.2d 760 

(9th Cir. 1980), summarily aff’d, 454 U.S. 801 (1981)). 

That is because such requirements would effectively 

alter the balance that Congress struck between, on 

the one hand, accountability and disclosure, and, on 

the other hand, administrative costs and complexity. 

See Boggs v. Boggs, 520 U.S. 833, 844 (1997) (“States 

are not free to change ERISA’s structure and balance.”). 

The Vermont reporting requirements, however, 

have an entirely different focus. As the court of appeals explained, the information submitted to the 

Board enables it to populate a database that is designed as a tool to assess and improve healthcare 
14

outcomes for Vermont residents. See Pet. App. 4-5 

(citing Vt. Stat. Ann. tit. 18, § 9410(a)(1) (Supp. 2014)). 

The reporting requirements have nothing to do with 

ERISA’s principal concerns with the soundness of 

plans and the actions of plan fiduciaries in administering plans and paying promised benefits. They are 

therefore “quite remote from the areas with which 

ERISA is expressly concerned.” Dillingham, 519 

U.S. at 330. For that reason, absent more, they do not 

fall within ERISA’s preemptive scope. As this Court 

has explained, “in the field of health care, * * * 

there is no ERISA preemption without [a] clear manifestation of congressional purpose.” Pegram v. Herdich, 530 U.S. 211, 237 (2000) (citing Travelers, 514 

U.S. at 654-655).

The court of appeals nevertheless believed that the 

Database Statute and Database Regulation have the

forbidden “connection with” ERISA plans because 

they require “reporting of health claims, pharmacy 

claims, etc., information about the essential functioning of employee health plans.” Pet. App. 29 n.13. But 

the mere fact that a state-law reporting obligation 

encompasses information about the operation of an 

ERISA plan does not suffice for preemption. In De 

Buono, for example, this Court held that a grossreceipts tax on patient services provided by a hospital 

operated by an ERISA plan was not preempted, see 

520 U.S. at 809-810, 816, even though the administration of the tax required the hospital to file quarterly 

reports about its taxable gross receipts, see U.S. Amicus Br. at 2-3, De Buono, supra (No. 95-1594). The 

principal inquiry under the “connection with” prong of 

the ERISA preemption test is whether a state law 

“implicates an area of core ERISA concern.” Egel-
15

hoff, 532 U.S. at 147. The fact that some information 

relevant to the operation of an ERISA plan is also 

relevant to non-ERISA areas of state legislative concern does not broaden the scope of ERISA preemption to include reporting requirements that have nothing to do with the financial soundness of ERISA plans

or with their federal-law obligation to pay promised 

benefits.

That is not to say that any reporting obligation unrelated to the basic objectives of ERISA falls outside 

the scope of ERISA’s preemption provision. As petitioner correctly acknowledges (Pet. 21), a state-law 

reporting obligation could in theory have effects on 

the administration of an ERISA plan that are “so 

acute,” De Buono, 520 U.S. at 816 n.16, that preemption is warranted. See Travelers, 514 U.S. at 668; see 

also Br. in Opp. 19-20 & n.9. Moreover, in considering 

the effects of a state-law requirement, a court must

consider the effects of a potential patchwork of state 

laws imposing different requirements, as the court of 

appeals held. See Pet. App. 29; see also Egelhoff, 532 

U.S. at 149-150.

But in the posture of this case, no sound basis exists to conclude that the Vermont reporting requirements affect the administration of ERISA plans in a 

qualitatively different or more substantial way than 

“myriad state laws in areas traditionally subject to 

local regulation,” such as health and safety, “which 

Congress could not possibly have intended to eliminate.” Travelers, 514 U.S. at 668. As Judge Straub 

explained, “[o]n the record before [the court of appeals], there is no basis to find that the Vermont statute would cause [respondent] to increase its costs 

more than a de [minimis] amount to cover the cost of 
16

sending information to the state, much less that it 

would cause a fiduciary to change a plan in any way.” 

Pet. App. 40-41 (dissenting in part and concurring in 

part).

Respondent contends (Br. in Opp. 20) that the 

court of appeals’ view of the burdens created by the 

reporting requirements “reflects a common sense 

assessment of the administrative realities of ERISA 

plans,” because reporting requirements like the ones 

at issue here “require ERISA plans to provide states 

with specific information in a prescribed format and at 

prescribed intervals on every claim processed by the 

plans” and thus “directly affect those activities.” But 

that supposition is not obvious without any factual 

support. If the plan has the necessary information 

readily at hand, for example, it is unlikely that merely 

reporting it to a state agency will significantly interfere with plan administration. Similarly, if Blue Cross 

already has procedures in place to submit the reports 

on behalf of other plans that Blue Cross insures or

administers, it may entail little additional cost or administrative burden in submitting reports for respondent’s plan. See Pet. App. 73 n.5 (noting that 

Blue Cross apparently provides the data on behalf of 

other plans).

In any event, as respondent acknowledges (Br. in 

Opp. 26), a state law that merely adds administrative 

costs to an ERISA plan is not preempted. After all, 

ordinary tax and employment laws can entail substantial administrative costs. To be preempted, the law 

must interfere with the way in which the plan is administered—for example, by requiring plan administrators to “familiarize themselves with state statutes” 

in order to determine to whom to pay benefits, 
17

Egelhoff, 532 U.S. at 148-149. Without any showing 

that the requirements here have such an effect, the 

court of appeals was wrong to conclude that they are 

preempted.

c. Respondent briefly argues (Br. in Opp. 22-23) 

that the Database Statute and Database Regulation

conflict with ERISA’s requirement that fiduciaries 

follow plan documents, 29 U.S.C. 1104(a)(1)(D), because the plan documents in this case required respondent and Blue Cross to maintain the confidentiality of the medical records of participants and beneficiaries. See Boggs, 520 U.S. at 841 (holding that a 

state law is preempted by ERISA if it “conflicts with 

the provisions of ERISA or operates to frustrate its 

objects” regardless of Section 1144(a)’s applicability). 

But this Court has never suggested that the mere fact 

that a state law could conflict with a plan term is sufficient for preemption, and such a rule would effectively 

allow plan sponsors to evade any state law merely by 

adding a contrary plan term. See, e.g., FMC Corp. v. 

Holliday, 498 U.S. 52, 54, 56-65 (1990) (analyzing 

whether ERISA preempted state law barring plan 

provision under the normal ERISA preemption 

framework rather than holding it preempted by Section 1104(a)(1)(D)). Respondent cites Egelhoff, 532 

U.S. at 151 n.4, but the Court’s only point in the cited 

discussion was that a state law that directly regulates 

the administration of a plan (there, the payment of 

benefits) is not saved from preemption if it permits a 

plan sponsor to expressly opt out of the law by amending plan language. That principle has no application

here.7

7 In any event, the Vermont statute mandates that confidential 

information be “filed in a manner that does not disclose the identi-

 
18

3. Although the court of appeals erred in holding

that the Vermont reporting requirements are preempted by ERISA, this Court’s review of the question 

presented is not warranted at this time. The decision 

below does not squarely conflict with a decision of 

another court of appeals, and further percolation in 

the courts of appeals would likely aid this Court’s 

ultimate review of the preemption issue.

a. Petitioner generally argues throughout the petition that the decision below conflicts with this Court’s 

ERISA preemption decisions. Although the United 

States agrees that the court of appeals misapplied 

those general principles to the particular context of 

the recordkeeping requirements at issue here (see pp. 

11-17, supra), that misapplication does not rise to the 

level of a direct conflict with this Court’s precedent

that would warrant review. This Court, in fact, has 

not considered a state law similar to the Vermont 

scheme.

Similarly, petitioner’s contention (Pet. 14, 25, 31) 

that “[t]he Second Circuit embraced an expansive 

view of ERISA preemption” overstates the error of 

the court of appeals. The court made clear that it did 

ty of the protected person”; prohibits public disclosure of “direct 

personal identifiers,” including names, addresses, and Social Security numbers; and requires submitters to comply with the federal Health Insurance Portability and Accountability Act of 1996, 

Pub. L. No. 104-191, 110 Stat. 1936. Database Statute § 9410(e) 

and (h)(3) (Supp. 2014). The federal Centers for Medicare and 

Medicaid Services provide Medicare claims data to Vermont for its 

database on the condition that Vermont protect the privacy of the 

information. See Pet. 22 n.3.

 

 
19

not believe that all reporting requirements would be 

preempted, see Pet. App. 24, and the court emphasized what it saw as the particularly burdensome 

nature of the requirements here, see id. at 25-29. 

Although the United States agrees with petitioner 

that the court of appeals lacked factual support for 

that conclusion, the decision below does not purport to

rest on a significant expansion of ERISA preemption 

principles.

b. Petitioner also briefly contends (Pet. 32-33;

Cert. Reply Br. 7-8) that the decision below conflicts 

with the Sixth Circuit’s decision in Self-Insurance 

Institute of America, Inc. v. Snyder, 761 F.3d 631 

(2014), petition for cert. pending, No. 14-741 (filed 

Dec. 18, 2014) (Self-Insurance Institute). In SelfInsurance Institute, the Sixth Circuit held that the 

application to ERISA plans of a Michigan tax on 

claims paid by, among others, ERISA plans to 

healthcare providers for services rendered was not 

preempted. See id. at 633, 641. The tax required the 

plans to submit quarterly returns to the state tax 

authority and to keep certain records. Id. at 633. The 

Sixth Circuit held that the tax law did not have the 

requisite “connection with” ERISA plans because the 

law did “not require a plan administrator to change 

how it administers the plan at all” but rather merely 

“create[d] work independent of the core functions of 

ERISA—as do permissible state property and employment laws.” Id. at 635-636. 

With respect to the Michigan law’s recordkeeping 

requirements in particular, the Sixth Circuit held that 

although “Congress intended ERISA to preempt state 

laws providing for additional oversight with regard to 

the solvency of ERISA plans,” that “basic conclu-
20

sion * * * does not mean that Congress intended 

federal law to bar states from imposing additional 

administrative burdens unrelated to the plans’ core 

functions.” 761 F.3d at 637-638. The Sixth Circuit 

pointed to Travelers and De Buono as decisions of this 

Court that upheld state laws that included recordkeeping requirements. See id. at 638; see also p. 14, 

supra. And it noted that the contrary view would 

mean that “ERISA would preempt any state laws 

requiring ERISA-covered entities to submit incometax returns, property-tax returns, or employment 

records.” 761 F.3d at 638.

The Sixth Circuit rejected the plaintiff’s reliance on 

the Second Circuit’s decision in this case, characterizing the Second Circuit’s analysis as a “literal approach” that swept too broadly. 761 F.3d at 639. But 

the Sixth Circuit also “distinguished” the decision 

below “on two other grounds.” Ibid. First, the court 

said, the Michigan law’s “reporting requirements are 

intimately related to a state tax—a traditional area of 

state concern that [courts] presume Congress left 

untouched”—whereas “the Vermont statute mandates 

reporting to build a healthcare database, a purpose,” 

the court believed, that is “not entitled to the presumption.” Ibid. Second, in the Sixth Circuit’s view, 

the Vermont scheme “actually affects the administration of [ERISA] plans” because it requires an ERISA

plan to choose between directing a third-party adminstrator to turn over records in violation of a plan document or to indemnify the administrator for violating 

state law. Ibid.

Although some tension exists between the analysis 

of the decision below and that of Self-Insurance Institute, that tension does not amount to a square conflict 
21

warranting this Court’s immediate review. The Sixth 

Circuit took pains to distinguish the decision below, 

and thus if a state law similar to Vermont’s came before the Sixth Circuit, the State could not rely on SelfInsurance Institute as significant support for nonpreemption. Indeed, the Sixth Circuit’s opinion, if 

anything, seems to suggest that the result of the decision below was correct because “[t]he Vermont 

scheme actually affects the administration of the 

plans.” 761 F.3d at 639. Although the United States 

disagrees with that dicta, it demonstrates that no 

square conflict exists over the question presented at 

this time.

c. The question presented is important, but in our 

view it does not require this Court’s review at the 

present time, before any other court of appeals has 

had the opportunity to address a similar reporting 

scheme. 

As petitioner explains (Pet. 26-31), the development of state healthcare claims databases has great 

potential to improve healthcare outcomes nationally.8

 

For example, the federal Center for Medicare and 

Medicaid Innovation, which supports the development 

and testing of new healthcare payment and servicedelivery models, funds a variety of state-conducted 

models, including models for “all payers,” that rely on 

state data-collection efforts for evaluation purposes. 

8

 See, e.g., Ctrs. For Medicare & Medicaid Servs., Rate Review 

Cycle III Funding Opportunity: Frequently Asked Questions, 

http://www.cms.gov/CCIIO/Resources/Fact-Sheets-and-FAQs/rrfoa-faq-6-6-2013.html (last visited May 19, 2015); Ctrs. For Disease 

Control & Prevention, CDC’s Assessment Initiative Cooperative 

Agreement: New Hampshire, http://www.cdc.gov/ai/states/nh.

html (last visited May 19, 2015). 

 
22

See 42 U.S.C. 1315a(a)(1) and (b)(2)(B). In evaluating a model, the Secretary of Health and Human Services (HHS) must analyze “the quality of care furnished under the model, * * * [and] the changes in 

spending under [Medicare, Medicaid and the Children’s Health Insurance Program (CHIP)] by reason 

of the model.” 42 U.S.C. 1315a(b)(4). In part because 

models may sometimes shift costs among different 

payers or have health effects that are not reflected in 

the Medicare, Medicaid, and CHIP databases, it is 

essential to the accuracy of some evaluations to be 

able to analyze state-level databases that include all 

payer claims. According to HHS, using incomplete 

data sets often impedes the government’s ability to 

assess whether initiatives have achieved cost savings 

or improved quality. Relatedly, Congress, recognizing the importance of access to comprehensive claims 

data for healthcare evaluation purposes, has made

Medicare data available to States that use claims data 

“to evaluate the performance of providers of services 

and suppliers on measures of quality, efficiency, effectiveness, and resource use.” 42 U.S.C. 1395kk.

Although federally created health claims databases 

exist for Medicare and federal employees, no federal 

agency has created an all-payer database that encompasses ERISA-covered plans along with other payers. 

For that reason, States are uniquely positioned to 

improve quality of care and to control costs through 

the collection and publication of claims data. If States 

are unable to acquire such data from self-insured 

ERISA healthcare plans, their databases will be significantly less comprehensive and thus not as useful in 

developing health policy at both the state and national 
23

levels. See Pet. 29-30; Sec’y of Labor C.A. Amicus Br. 

10; see also States Cert. Amicus Br. 3.

Although the question presented thus has substantial importance to the Nation’s healthcare system, 

further percolation of the question presented among 

the courts of appeals is likely to prove helpful to the 

Court. In addition to furnishing the perspective of 

other courts of appeals on the legal issue, additional

appellate decisions in this area may furnish this Court 

with more information to assess the impact of similar 

reporting requirements on the administration of 

ERISA plans generally. And because States in the 

First, Fourth, Sixth, Eighth, Ninth, and Tenth Circuits “have enacted legislation creating health-care 

data collection programs” similar to Vermont’s 

scheme (States Cert. Amicus Br. 1 & n.3), it is reasonably likely that other circuits will have the opportunity to consider the question presented.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted. 

M. PATRICIA SMITH

Solicitor of Labor

G. WILLIAM SCOTT

Associate Solicitor

NATHANIEL I. SPILLER

Counsel

MELISSA MOORE

Attorney

DONALD B. VERRILLI, JR. Solicitor General

EDWIN S. KNEEDLER

Deputy Solicitor General

JOHN F. BASH

Assistant to the Solicitor 

General

MAY 2015