Safeco Life Insurance v. Musser
Opinion of the Court
Wisconsin imposes fees on health insurers who do business in the state which it uses to provide health insurance to individuals whose physical and mental conditions prevent them from obtaining coverage in the private market. Safeco Life Insurance Company sells stop-loss insurance coverage to a number of Wisconsin employers who sponsor self-funded employee welfare benefit plans, and it is assessed fees by the state based on the sales of that coverage. Safeco has filed this suit seeking a declaration that Wisconsin’s scheme is preempted by the Employee Retirement Income and Security Act, 29 U.S.C. § 1001, et seq. (“ERISA”), insofar as it applies to insurance sales to employers sponsoring ERISA plans. The district court concluded that the scheme is not preempted by ERISA and that, in any event, the Tax Injunction Act, 28 U.S.C. § 1341, deprived it of subject matter jurisdiction to grant the declaratory relief that Safeco requested. Guided by the Supreme Court’s recent decision in New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., — U.S. -, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995), we agree with the district court that the Wisconsin scheme is not preempted by ERISA and conclude that the defendants are entitled to judgment on that basis.
I.
Wisconsin enacted the Health Insurance Risk Sharing Plan in order to make health insurance available to individuals whose physical or mental conditions make it infeasible for them to obtain coverage in the private market. Wisconsin residents who are under the age of 65 are eligible to participate in HIRSP if they are HIV positive or if, due to another physical or mental condition, they have been notified that:
1. Their health insurance has been canceled or their application for insurance has been rejected;
2. Their existing coverage has been modified or limited in a way that substantially reduces the coverage of their policy vis á vis the coverage available to a person considered a standard risk;
3. Their premiums for existing coverage have been increased by fifty percent or more above the amount they have paid previously; or
4. The premiums for a policy not yet in effect have been set at a level fifty percent or more higher than a person considered a standard risk would typically pay.
Wis.Stat. § 619.12(1). Individuals certified as eligible are able to obtain major medical expense insurance through the HIRSP in exchange for the payment of premiums set by the state Commissioner of Insurance. Individuals with limited incomes pay reduced premiums (§ 619.165(1)); the state also provides financial assistance to assist them in paying their premiums as well as their deductibles.
The number of participants in HIRSP has risen markedly from 309 in 1981 to 12,380 in 1992. Given the health status of the individuals eligible to participate in the Plan, the amount in claims paid and the cost of administering the Plan have consistently outstripped the premiums collected. In 1992, for example, HIRSP collected $17,846,040 in premiums, but paid $37,699,824 in claims and incurred $2,168,546 in administrative expenses. To make up for that shortfall, HIRSP each year assesses a fee upon compa
Safeco, a Washington corporation, has been licensed to write insurance in Wisconsin since 1959. Among other types of policies, Safeco offers stop-loss insurance to employers who sponsor self-funded “employee welfare benefit plans” and “employee benefit plans” as those terms are defined in ERISA. See 29 U.S.C. § 1002(1), (3). These plans offer a variety of medical, surgical, hospital, and other benefits to employees in the event of sickness, accident, disability, death, or unemployment. Employers pay the expenses of these plans; but when they purchase stop-loss policies, the insurer pays a portion of the plan’s expenses above a certain amount, thus limiting the employer’s exposure. According to Safeco, ninety-six percent of all employers with less than 1,000 employees that sponsor self-funded ERISA plans purchase some form of stop-loss coverage.
Based upon the stop-loss policies that Safe-co sold to Wisconsin employers from 1988 through 1992, HIRSP assessed the insurer $239,577.93 plus interest. (Safeco was assessed an additional $22,889.15 in August 1993.) Safeco refused to pay the fee, contending that ERISA preempts the provisions of HIRSP insofar as they apply to the insurance policies sold to ERISA plans.
On cross-motions for summary judgment, the district court concluded that ERISA did not preempt HIRSP insofar as it applied to insurance policies sold to ERISA plans. Addressing the threshold question of whether the HIRSP assessments “relate to” an ERISA plan and are therefore (barring any applicable exemption) preempted (see 29 U.S.C. § 1144(a)), the court observed:
The HIRSP assessment as applied to Safe-co taxes only Safeco’s total health care revenue. It does not make a reference to an employee benefit plan, nor is it connected to an employee benefit plan. The HIRSP assessment is not based on a figure that is connected with the benefits paid from the plan such as percentage of benefits paid to employees in the plan which would merely be an indirect manner of taxing the plan....
... HIRSP assessments do not affect the substantive provisions of the coverage employees receive under their employee benefit plans. [Safeco] asserts that [it] will pass on the cost of HIRSP assessments to the employers who purchase stop-loss insurance. [Safeco] also asserts that employers will pass on the cost of HIRSP assessments to the plans by reducing benefits or by requiring employees to pay a higher share. There is no evidence in the record that the costs will be passed on from employers to the plans. Moreover, where some employers choose to pass the cost of HIRSP assessments to the plans by reducing benefits, this remote effect is not “a connection with or reference to” an employee benefit plan. Any effect is too “remote or tenuous” to “relate to” an employee benefit plan. [Otherwise] there would be no limit to those state laws which would be preempted by ERISA. State regulation of hospitals, which may lead to greater costs for employee benefit plans, does not “relate to” an employee benefit plan, nor does state taxation of an insurer’s revenue relate to an employee benefit plan....
Mem. at 8-9 (citation omitted). Even if the HIRSP assessments could be said to “relate to” an employee benefit plan, the court went
Alternatively, the district court opined that it lacked jurisdiction over Safeco’s suit in light of the Tax Injunction Act, 28 U.S.C. § 1341, which states that “[t]he district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State,” and which the Supreme Court has held applicable to suits for declaratory judgment. Franchise Tax Bd. of California v. Alcan Aluminium Ltd., 493 U.S. 331, 338, 110 S.Ct. 661, 666, 107 L.Ed.2d 696 (1990); California v. Grace Brethren Church, 457 U.S. 393, 408-411, 102 S.Ct. 2498, 2507-09, 73 L.Ed.2d 93 (1982). Although the parties had not raised this issue, the court noted, no one had suggested that Wisconsin did not afford Safeco a “plain, speedy and efficient” means of resolving Safeco’s objections to the HIRSP assessment. Consequently, the court reasoned, the Tax Injunction Act deprived it of jurisdiction over the suit. Mem. at 13-14. See Ashton v. Corp., 780 F.2d 816 (9th Cir. 1986) (Kennedy, J.); contra E-Systems Inc. v. Pogue, 929 F.2d 1100, 1102 (5th Cir.), cert. denied, 502 U.S. 981, 112 S.Ct. 585, 116 L.Ed.2d 610 (1991).
Safeco appeals, renewing its argument that ERISA preempts the HIRSP assessments imposed on the stop-loss policies it has sold to employers sponsoring employee benefit plans and contending that the Tax Injunction Act poses no bar to the declaratory relief it requests. The jurisdictional character of the latter argument normally would dictate that we address it first. But whether the HIRSP assessments constitute taxes for purposes of the Tax Injunction Act is a question that does not, in our view, lend itself to easy resolution. By contrast, the Supreme Court’s decision in New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., — U.S. -, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995), renders analysis of the preemption issue straightforward. Moreover, it is the defendants, who now invoke the jurisdictional shield of the Tax Injunction Act, that prevail on the merits of the preemption question. Under these circumstances, we find it unnecessary to consider whether the assessments qualify as taxes so as to deprive the court of jurisdiction to grant the declaratory relief that Safeco seeks. See Norton v. Mathews, 427 U.S. 524, 532, 96 S.Ct. 2771, 2775-76, 49 L.Ed.2d 672 (1976); Rekhi v. Wildwood Indus., Inc., 61 F.3d 1313, 1316-17 (7th Cir. 1995) (collecting cases).
II.
Our inquiry into preemption begins, as it must, with what Congress has said on that subject. FMC Corp. v. Holliday, 498 U.S. 52, 56-57, 111 S.Ct. 403, 407, 112 L.Ed.2d 356 (1990). “Three provisions of ERISA speak directly to the question of pre-emption.” Id. at 57, 111 S.Ct. at 407. These include: (1) the “preemption clause,” which states that the provisions of ERISA “shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan,” except as provided in the “saving clause” (29 U.S.C. § 1144(a) (emphasis supplied)); (2) the “saving clause,” which states that “except as provided in [the “deemer clause”], nothing in this subchapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance, banking, or securities” (29 U.S.C. § 1144(b)(2)(A)); and (3) the “deemer
Shortly after we heard oral arguments in this ease, the Supreme Court granted certio-rari in New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., — U.S. -, 115 S.Ct. 305, 130 L.Ed.2d 217 (1994).
The Court began its preemption inquiry with the observation 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.’ ” — U.S. at -, 115 S.Ct. at 1677 (quoting Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 97, 103 S.Ct. 2890, 2900, 77 L.Ed.2d 490 (1983)). The surcharges in no way made reference to an ERISA plan, the Court noted, since they were imposed without regard to whether insurance or HMO enrollment was procured by an ERISA plan, by private purchase, or otherwise. Id.
But this still leaves us to question whether the surcharge laws have a “connection with” the ERISA plans, and here an uncritical literalism is no more help than in trying to eonstrue “relate to.” For the same reasons that infinite relations cannot be the measure of preemption, neither can infinite connections. We simply must go beyond the unhelpful text and the frustrating difficulty of defining its key term, and look instead to the objectives of the ERISA statute as a guide to the scope of the state law that Congress understood would survive.
Id. What Congress meant, the Court continued, was to eliminate the prospect of conflict among the federal, state, and local laws applying to employee benefit plans by making the regulation of such plans exclusively a federal matter. Id. “The basic thrust of the pre-emption clause, then, was to avoid a multiplicity of regulation in order to permit the nationally uniform administration of employee benefit plans.” Id. — U.S. at -, 115 S.Ct. at 1677-78. Consistent with that purpose, the Court in prior cases had deemed preempted state laws that had the
Turning to the surcharges imposed by New York, the Court acknowledged that the fees, to the extent they were passed on to the purchasers of commercial insurance or HMO membership, likely would have some influence on the type of health care coverage that the sponsors of ERISA plans would pursue. Thus, for example, “[although there is no evidence that the surcharges will drive every health insurance consumer to the Blues, they do make the Blues more attractive (or less unattractive) as insurance alternatives and thus have an indirect economic effect on choices made by insurance buyers, including ERISA plans.” Id. — U.S. at -, 115 S.Ct. at 1679. But that limited effect alone was not enough to trigger ERISA’s preemption clause:
An indirect economic influence ... does not bind plan administrators to any particular choice and thus function as a regulation of an ERISA plan itself; commercial insurers and HMOs may still offer more attractive packages than the Blues. Nor does the indirect influence of the surcharges preclude uniform administrative practice or the provision of a uniform interstate benefit package if a plan wishes to provide one. It simply bears on the costs of benefits and the relative costs of competing insurance to provide them. It is an influence that can affect a plan’s shopping decisions, but it does not affect the fact that any plan will shop for the best deal it can get, surcharges or no surcharges.
Id.
There was “nothing remarkable,” the Court continued, about hospital bill surcharges and their effect on the costs incurred by health care plans, nor was there anything unusual about charge differentials among commercial insurers, the latter historically having varied greatly from region to region, “presumably reflecting the geographically disparate burdens of providing for the uninsured.” Id. It was thus unlikely that Congress had meant to preclude, through ERISA’s preemption clause, the indirect economic influences such rate differentials had on employee benefit plans. It was even more unlikely that Congress had meant to interfere with the variety of other state actions that will inevitably affect the benefits provided by ERISA plans — health care quality controls, for example, and even basic employment regulations. Id. Such regulations no doubt “will affect what an ERISA or other plan can afford or get for its money,” the Court conceded, but it was confident that the indirect effect of these regulations was beyond what Congress meant to regulate through ERISA. Id.
Indeed, to read the preemption provision as displacing all state laws affecting costs and charges on the theory that they indirectly relate to ERISA plans that purchase insurance policies or HMO memberships that would cover such services, would effectively read the limiting language in [the preemption clause] out of the statute, a conclusion that would violate basic principles of statutory interpretation and could not be squared with our prior pronouncement that “[preemption does not occur ... if the state law has only a tenuous, remote, or peripheral connection with covered plans, as is the case with many laws of general applicability.” District of Columbia v. Greater Washington Board of Trade, 506 U.S. [-,-] n. 1, 113 S.Ct. 580, 588 n. 1 [121 L.Ed.2d 513] (1992) (internal quotation marks and citations omitted).... [N]othing in the language of the Act or the context of its passage indicates that Congress chose to displace general health care regulation, which historically has been a matter of local concern ....
— U.S. at -, 115 S.Ct. at 1679-80.
We believe the Court’s pragmatic view of the surcharges at issue in Travelers to be dispositive here. Like New York, Wisconsin has adopted a regulatory scheme that attempts to render health insurance and health care more accessible to individuals who find it difficult or impossible to obtain them in the private market. The approaches the two states have taken are different: New York has used the surcharge as a device to give a
III.
Because the HIRSP assessments imposed by Wisconsin on health insurance carriers do not interfere with the provisions or administration of ERISA plans, the assessments do not “relate to” such plans in a manner significant enough to implicate the preemption clause of the statute. Any indirect effect that the HIRSP assessments may have upon
VACATED AND REMANDED WITH DIRECTIONS.
. HIRSP also assessed Safeco for policies it sold to other Wisconsin residents. Because those policies had nothing to do with ERISA plans, Safeco does not contest the propriety of the corresponding HIRSP fees and has already paid them.
. In addition to its preemption claim, Safeco's complaint included a second count asserting that the HIRSP assessment does not apply to the sale of stop-loss insurance policies. The district court indicated that if it had jurisdiction over the suit, it would abstain from deciding this state law claim. Mem. at 14-15. Safeco has not pressed the claim on appeal, indicating that it may pursue the matter at a later date in state proceedings. Safeco Opening Br. at 3.
. We postponed resolution of this case pending the Supreme Court's decision in Travelers.
. The statement of uncontested facts submitted by the parties below avers that Safeco will, in fact, pass along the surcharge to its insureds, including employers who have purchased stop-loss coverage for their ERISA plans. R. 29, Schedule A ¶ 22.
Reference
- Full Case Name
- SAFECO LIFE INSURANCE COMPANY v. Josephine W. MUSSER, in her capacity as Wisconsin Commissioner of Insurance, and the Wisconsin Health Insurance Risk Sharing Plan
- Cited By
- 1 case
- Status
- Published