Medicaid & Medicare Advantage Products Ass'n of PR v. Emanuelli-Hernandez ( 2023 )


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  •           United States Court of Appeals
    For the First Circuit
    Nos. 21-1297, 21-1379
    MEDICAID AND MEDICARE ADVANTAGE PRODUCTS ASSOCIATION OF PUERTO
    RICO, INC.; MMM HEALTHCARE, LLC; TRIPLE-S ADVANTAGE, INC.; MCS
    ADVANTAGE, INC.; HUMANA HEALTH PLANS OF PUERTO RICO, INC.,
    Plaintiffs, Appellees,
    v.
    DOMINGO EMANUELLI HERNÁNDEZ, in his official capacity as
    Attorney General for the Commonwealth of Puerto Rico; MARIANO A.
    MIER-ROMEU, in his official capacity as Puerto Rico Insurance
    Commissioner,
    Defendants, Appellants,
    ASOCIACION DE HOSPITALES DE PUERTO RICO, INC.; MENNONITE GENERAL
    HOSPITAL, INC.; SAN JORGE CHILDREN'S HOSPITAL, INC.; HOSPITAL
    MENONITA CAGUAS, INC.; HOSPITAL MENONITA GUAYAMA, INC.; PUERTO
    RICO COLLEGE OF PHYSICIANS-SURGEONS; CLINICAL LABORATORIES
    ASSOCIATION INC.; PUERTO RICO ASSOCIATION OF RADIOLOGY IMAGING
    CENTERS INC.,
    Intervenors, Appellants.
    APPEALS FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF PUERTO RICO
    [Hon. Silvia Carreño-Coll, U.S. District Judge]
    Before
    Lipez, Howard, and Thompson,
    Circuit Judges.
    Mariola Abreu-Acevedo, Assistant Solicitor General, with whom
    Fernando Figueroa-Santiago, Solicitor General of Puerto Rico, Omar
    Andino-Figueroa, Deputy Solicitor General, and Carlos Lugo-Fiol
    were on brief, for defendant-appellants.
    César T. Alcover, Carla S. Loubriel Carrión, Casellas Alcover
    & Burgos, P.S.C., Luis Sánchez Betances, Jaime Sifre Rodríguez,
    Jorge Flores de Jesús, Sánchez Betances, Sifre & Muñoz Noya, Omar
    E Martinez-Vázquez, Martinez & Martinez, Luis E. Romero Nieves,
    Luis M. Pellot-Juliá, and Pellot-González, P.S.C. on brief for
    intervenor-appellants.
    Michael B. Kimberly, with whom Ankur J. Goel, Sarah P.
    Hogarth, McDermott Will & Emery LLP, Luis R. Román-Negrón, SBGB
    LLC, Roberto L. Prats-Palerm, RPP Law, José A. Hernández-Mayoral,
    Hernández Mayoral Law Office, Mariacté Correa-Cestero, Ricardo
    José Casellas-Santana, O'Neill & Borges LLC, Herman Colberg, and
    Pietrantoni Méndez & Alvarez LLC were on brief, for appellees.
    January 18, 2023
    LIPEZ, Circuit Judge.          Facing an exodus of healthcare
    providers from Puerto Rico for more lucrative employment in the
    continental United States, the Puerto Rico legislature passed Act
    90,   which    requires   that   Medicare       Advantage    plans    compensate
    healthcare providers in Puerto Rico at the same rate as providers
    are   compensated     under   traditional       Medicare.      After       several
    entities that manage Medicare Advantage plans challenged the law,
    the district court determined in a thoughtful decision that Act 90
    is preempted by federal law.       We affirm.
    I.
    A.    Medicare Advantage Program
    The federal Medicare program, established by Title XVIII
    of the Social Security Act, provides health insurance coverage to
    people 65 years of age or older and certain other qualifying
    beneficiaries, such as people with disabilities.                   See 42 U.S.C.
    § 1395c; Akebia Therapeutics, Inc. v. Azar, 
    976 F.3d 86
    , 89 (1st
    Cir. 2020).      The Secretary of the Department of Health and Human
    Services ("HHS") administers the Medicare program through the
    Centers for Medicare and Medicaid Services ("CMS"), an agency
    housed within HHS.        See Visiting Nurse Ass'n Gregoria Auffant,
    Inc. v. 
    Thompson, 447
     F.3d 68, 70 (1st Cir. 2006).                     Under the
    "traditional"     Medicare    program    (Parts    A   and   B),     the   federal
    government pays healthcare providers directly for a limited array
    of specified services according to a fee-for-service schedule set
    - 3 -
    by CMS.   See First Med. Health Plan, Inc. v. Vega-Ramos, 
    479 F.3d 46
    , 48 (1st Cir. 2007); 42 U.S.C. §§ 1395c to 1395i-6 (Part A); 42
    U.S.C. §§ 1395j to 1395w-6 (Part B).
    The Medicare Advantage program, also known as Medicare
    Part C, which is governed by the Medicare Prescription Drug,
    Improvement, and Modernization Act of 2003 ("Medicare Advantage
    Act"), 
    Pub. L. No. 108-173, 117
     Stat. 2066 (2003) (codified at 42
    U.S.C. §§ 1395w-21 to 1395w-28), takes a different approach. Under
    Medicare Advantage, CMS contracts with private organizations --
    Medicare Advantage Organizations ("MAOs"), essentially private
    insurers -- who in turn contract with healthcare providers to
    supply core Medicare services as well as additional benefits, such
    as hearing and dental care, which fall outside of the traditional
    Medicare program.   See UnitedHealthcare Ins. Co. v. Becerra, 
    16 F.4th 867
    , 872-73 (D.C. Cir. 2021).
    Congress established the Medicare Advantage program to
    expand the availability of private health plan options to Medicare
    beneficiaries while generating cost savings for both the federal
    government and for enrollees through market competition and the
    greater use of managed care.   See Medicare Program; Establishment
    of the Medicare Advantage Program, 
    70 Fed. Reg. 4588
    , 4589 (Jan.
    28, 2005) (codified at 42 C.F.R. pts. 417, 422).         The Medicare
    Advantage program aims to achieve these purposes through several
    interrelated   policies.   Most   relevant   to   this   appeal,   MAOs
    - 4 -
    negotiate payment and network-inclusion terms with in-network
    healthcare providers rather than paying these providers according
    to a fixed fee-for-service schedule as under traditional Medicare.
    See generally 42 U.S.C. § 1395w-23(a); 
    42 C.F.R. § 422.520
    (b)(2).
    In lieu of fixed fee-for-service reimbursements, MAOs generally
    receive a per-beneficiary monthly payment in return for providing
    coverage   to   Medicare   Advantage    enrollees   for   all    traditional
    Medicare services as well as additional services outside the
    traditional Medicare program.         42 U.S.C. § 1395w-23(b).         Acting
    through CMS, the Secretary of HHS determines an MAO's monthly
    payment by comparing its bid -- the cost that the MAO estimates
    for providing Medicare-covered services -- to a federal benchmark,
    the   maximum   amount     the   federal    government    will   pay   under
    traditional Medicare for providing those services in the plan's
    geographic service area.1        See id.; UnitedHealthcare Ins. Co., 16
    F.4th at 872-73.
    1If the bid an MAO plan tenders is less than the federal
    benchmark, CMS pays the MAO its bid plus a rebate, which must be
    returned to enrollees in the form of additional benefits or
    coverage for services outside of traditional Medicare, such as
    dental or hearing benefits.    42 U.S.C. §§ 1395w-23(a)(1)(B)(i),
    (E); 1395w-24(b)(1)(C). If the MAO plan's bid is equal to or above
    the federal benchmark, the compensation that the MAO receives from
    CMS is the benchmark amount, and each enrollee in that plan will
    incur an additional premium to cover the amount by which the bid
    exceeds the federal benchmark.      Id. §§ 1395w-23(a)(1)(B)(ii),
    1395w-24(b)(1)(A), 1395w-24(b)(2)(C).     During open enrollment
    season, beneficiaries choose from among MAO plan offerings and
    MAOs compete against one another for beneficiaries by providing
    additional or supplemental benefits to those offered by
    - 5 -
    The Medicare Advantage Act also prohibits the Secretary
    of HHS from modifying this payment approach, providing that
    [i]n order to promote competition under this part . . .
    the Secretary may not require any [MAO] to contract with
    a particular hospital, physician, or other entity or
    individual to furnish items and services under this
    subchapter or require a particular price structure for
    payment under such a contract . . . .
    42 U.S.C. § 1395w-24(a)(6)(B)(iii) (emphasis added).   Lastly, but
    crucially for purposes of this appeal, the Medicare Advantage Act
    contains the following preemption clause:
    The standards established under this part shall
    supersede any State law or regulation (other than State
    licensing laws or State laws relating to plan solvency)
    with respect to [Medicare Advantage] plans which are
    offered by [Medicare Advantage] organizations under this
    part.
    42 U.S.C. § 1395w-26(b)(3).
    B.   Puerto Rico Act 90
    In 2019, the Legislative Assembly of Puerto Rico passed,
    and the Governor signed into law, Act 90-2019 ("Act 90"), which
    requires that MAOs pay Puerto Rico healthcare providers no less
    than the fixed fee-for-service Medicare reimbursement rate.     Act
    90-2019, 
    2019 P.R. Laws 660
     (codified at P.R. Laws Ann. tit. 26,
    traditional Medicare, broader access to in-network providers, or
    lower out-of-pocket costs as compared to other MAOs. See Medicare
    Program; Establishment of the Medicare Advantage Program, 70 Fed.
    Reg. at 4589.   Thus, under Medicare Advantage's market-oriented
    approach, MAOs assume the risk of individual beneficiaries' health
    care costs.
    - 6 -
    §   1915(7)).     The     legislation,    which   amends   the   Puerto   Rico
    Insurance Code, is an "attempt to address a major public health
    crisis afflicting the island for more than a decade: the mass
    exodus of medical professionals in pursuit of better economic
    opportunity elsewhere in the United States."            Medicaid & Medicare
    Advantage Prods. Ass'n of P.R. v. Emanuelli-Hernández, Civ. No.
    19-1940 (SCC), 
    2021 WL 792742
    , at *1 (Mar. 1, 2021).2                  As the
    Puerto Rico Senate explained in the bill that became Act 90, a
    significant factor in this severe retention problem is that even
    traditional Medicare's fee-for-service rates "established by CMS
    for Puerto Rico physicians are lower than those established for
    physicians in any other state or territory of the United States."
    Id. at *8.    Further, under Medicare Advantage, "insurers in Puerto
    Rico . . . pay rates even below the already-low rates paid by CMS
    under     [traditional]    Medicare,     thus   encouraging   the   flight   of
    medical professionals to other jurisdictions where reimbursement
    rates are higher."        Id.   With Act 90, the Puerto Rico legislature
    sought to encourage medical professionals to remain in Puerto Rico
    "by eliminating insurers' practice of paying providers below the
    2 In Act 90's Statement of Motives, the Puerto Rico
    legislature asserted that "[f]or the 2009-2014 period, there was
    an average annual loss of 472 physicians and 347 medical
    specialists in Puerto Rico.      In 2016, nearly 600 physicians
    cancelled their Puerto Rico licenses to move to the United States."
    Act 90, 2019 P.R. Laws at 661.
    - 7 -
    minimum   reimbursement    rates      paid    by   CMS    under   [traditional]
    Medicare."   Id.
    To that end,       Act 90 requires MAOs to pay Medicare
    Advantage providers in Puerto Rico at least as much as the federal
    government would compensate those entities under the corresponding
    fee-for-service    schedule     set    by    CMS   for   traditional   Medicare
    services.     Referred    to    as    the     "Mandated    Price    Provision,"
    subsection 7 of section 1 states, in relevant part:
    No agreement, contract, addendum, or stipulation between
    a Medicare Advantage health service organization . . .
    and a service provider, relating to the services offered
    to Medicare Advantage shall include a clause providing
    for the payment of fees that are less favorable for the
    service provider or lower than those established in the
    fee-for-service schedule developed annually by . . .
    [CMS] for Puerto Rico.
    
    P.R. Laws Ann. tit. 26, § 1915
    (7).            The Mandated Price Provision
    provides that "[a]ny condition, stipulation or agreement [between
    an MAO and a service provider] that is inconsistent with [the
    provision] shall be deemed void."            
    Id.
    C.    District Court Proceedings
    Shortly after Act 90 became law, appellees, a trade
    organization representing MAOs and several individual MAOs, filed
    suit seeking a declaratory judgment and an injunction barring
    enforcement of the Mandated Price Provision.3              In their complaint,
    3 On appeal, the government appellants initially challenged
    the   district court's determination that Act 90's termination
    - 8 -
    appellees asserted that the Medicare Advantage Act preempts the
    challenged provision, and that the provision also violates the
    U.S. Constitution's Contract and Takings Clauses.                 Appellants, the
    Attorney General and the Insurance Commissioner of Puerto Rico,
    moved to dismiss the complaint arguing, in relevant part, that the
    provision is not preempted and that the suit should therefore be
    dismissed for failure to state a claim pursuant to Federal Rule of
    Civil Procedure 12(b)(6).          Various hospitals and organizations
    representing      healthcare    professionals       in     Puerto   Rico   --    the
    intervenor-appellants -- intervened as a matter of right pursuant
    to Federal Rule of Civil Procedure 24(a)(2).
    Appellees opposed the motion to dismiss and cross-moved
    for partial summary judgment on the preemption claim. The district
    court ultimately ruled in favor of the appellees, holding that the
    Medicare    Advantage   Act     expressly       preempts    the   Mandated    Price
    Provision    in   Act   90.      The     district    court    therefore      denied
    appellants'    motion   to     dismiss    and    granted     appellees'    summary
    judgment motion as a motion for judgment on the pleadings.                      This
    appeal followed.4
    provision -- which prohibits MAOs from terminating providers
    without just cause -- was also preempted by federal law. At oral
    argument, however, counsel for appellants conceded that this
    provision is preempted by the Medicare Advantage Act's preemption
    clause and the regulations governing the termination of provider
    contracts by MAOs. See 
    42 C.F.R. § 422.202
    (d).
    4 The government appellants and the intervenor-appellants
    filed separate appeals, which this court consolidated. See Fed.
    - 9 -
    II.
    The Supremacy Clause of the U.S. Constitution, which
    makes federal law "the supreme Law of the Land," U.S. Const. art.
    VI, cl. 2, means that Congress "has the power to pre-empt state
    law."     Me. Forest Prods. Council v. Cormier, 
    51 F.4th 1
    , 6 (1st
    Cir. 2022) (quoting Arizona v. United States, 
    567 U.S. 387
    , 399
    2012)).     The test for federal preemption of a Puerto Rico law is
    the same as the test under the Supremacy Clause for preemption of
    the law of a state.             P.R. Dep't of Consumer Affairs v. Isla
    Petroleum Corp., 
    485 U.S. 495
    , 499 (1988).
    Federal preemption of state law "may be either expressed
    or   implied,     and    is    compelled    whether    Congress'      command   is
    explicitly      stated    in     the    statute's    language    or     implicitly
    contained in its structure and purpose."                    Gade v. Nat'l Solid
    Wastes Mgmt. Ass'n, 
    505 U.S. 88
    , 98 (1992) (internal quotation
    marks   omitted).        Where    a    federal    statute    contains    a   clause
    expressly purporting to preempt state law, "we focus on the plain
    wording of the clause, which necessarily contains the best evidence
    of Congress' preemptive intent."                 Chamber of Com. of U.S. v.
    Whiting,    
    563 U.S. 582
    ,    594    (2011)   (internal     quotation    marks
    omitted).     Congressional "intent 'is the ultimate touchstone' of
    an express preemption analysis."            First Med. Health Plan, Inc. v.
    R. App. P. 3(b)(2).
    - 10 -
    Vega-Ramos, 
    479 F.3d 46
    , 51 (1st Cir. 2007) (quoting Medtronic,
    Inc. v. Lohr, 
    518 U.S. 470
    , 485 (1996)).
    As we have explained, "[i]n determining the preemptive
    scope of a congressional enactment, [we] rely on the plain language
    of the statute and its legislative history to develop a reasoned
    understanding of the way in which Congress intended the statute to
    operate."    
    Id.
     (internal quotation marks omitted).   Further, to
    determine "whether a Federal act overrides a state law, the entire
    scheme of the statute must . . . be considered . . . . If the
    purpose of the act cannot otherwise be accomplished -- if its
    operation within its chosen field [would] be frustrated and its
    provisions be refused their natural effect -- the state law must
    yield to the regulation of Congress within the sphere of its
    delegated power."   Crosby v. Nat'l Foreign Trade Council, 
    530 U.S. 363
    , 373 (2000) (quoting Savage v. Jones, 
    225 U.S. 501
    , 533
    (1912)).
    III.
    The question before us, then, is whether the Medicare
    Advantage Act's preemption clause applies to Act 90's Mandated
    Price Provision, such that the provision is expressly preempted by
    federal law.     We review de novo a district court's grant of
    judgment on the pleadings.    Perez-Acevedo v. Rivero-Cubano, 
    520 F.3d 26
    , 29 (1st Cir. 2008).      Moreover, "a federal preemption
    ruling presents a pure question of law subject to plenary review."
    - 11 -
    United States v. R.I. Insurers' Insolvency Fund, 
    80 F.3d 616
    , 619
    (1st Cir. 1996).       "The burden to prove preemption is on the
    plaintiffs."   Capron v. Off. of Att'y Gen. of Mass., 
    944 F.3d 9
    ,
    21 (1st Cir. 2019).
    We begin with a threshold issue: whether the presumption
    against   preemption    applies.     This   substantive   canon   of
    construction, as explained by the Supreme Court, means that federal
    law should not be interpreted to preempt state law "unless that
    was the clear and manifest purpose of Congress."   Rice v. Santa Fe
    Elevator Corp., 
    331 U.S. 218
    , 230 (1947).     However, the Supreme
    Court has also recently stated that where a "statute contains an
    express pre-emption clause, [courts] do not invoke any presumption
    against pre-emption."    Puerto Rico v. Franklin Cal. Tax-Free Tr.,
    
    579 U.S. 115
    , 125 (2016) (internal quotation marks omitted).
    Although appellants offer various arguments, based on pre-Franklin
    case law, that the presumption should apply in this case, the
    Supreme Court's broad language in Franklin forecloses us from
    applying the presumption against preemption in interpreting the
    Medicare Advantage Act's express preemption clause.5
    5 In applying Franklin's broad language outside that case's
    specific context of the Bankruptcy Code's preemption clause, we
    join other circuit courts that have applied Franklin to other
    statutes. See, e.g., Pharm. Care Mgmt. Ass'n v. Wehbi, 
    18 F.4th 956
    , 967 (8th Cir. 2021) (applying Franklin to ERISA and to
    Medicare Part D's preemption provision, which is identical to 42
    U.S.C. § 1395w-26(b)(3)); Dialysis Newco, Inc. v. Cmty. Health
    Sys. Grp. Health Plan, 
    938 F.3d 246
    , 258-59 (5th Cir. 2019)
    - 12 -
    Turning to that preemption clause, we conclude that the
    plain language and legislative history demonstrate                   Congress's
    intent   to    preempt   a   state    law   like    Act   90's   Mandated   Price
    Provision.      As the district court noted, the preemption clause's
    use of the "modifying term 'any' before 'State law or regulation'
    and the inclusion of two listed exceptions" suggest "that Congress
    intended for all state laws or regulations that purport[] to
    regulate [Medicare Advantage] plans offered by MAOs . . . [to be]
    preempted."     Medicaid and Medicare Advantage Prods. Ass'n of P.R.,
    
    2021 WL 792742
    , at *9.       That is, the clause's plain language sweeps
    broadly and would certainly            encompass a state law, like             the
    Mandated Price Provision, that specifically attempts to govern
    Medicare Advantage's payment structure.
    The   legislative      history   of    the    preemption      clause
    confirms that Congress intended to broadly preempt state laws
    regarding Medicare Advantage plans.                Prior to its amendment in
    2003, the preemption clause read as follows:
    The standards established under this subsection shall
    supersede any State law or regulation . . . with respect
    to [Medicare Part C] plans . . . to the extent that such
    (applying Franklin to ERISA); EagleMed LLC v. Cox, 
    868 F.3d 893
    ,
    899, 903 (10th Cir. 2017) (applying Franklin to the Airline
    Deregulation Act's express preemption clause); Watson v. Air
    Methods Corp., 
    870 F.3d 812
    , 817 (8th Cir. 2017) (en banc) (same).
    But see Shuker v. Smith & Nephew, PLC, 
    885 F.3d 760
    , 771 n.9 (3d
    Cir. 2018) (declining to apply Franklin to the Food, Drug, and
    Cosmetic Act because the case involved products liability claims
    historically regulated by the states).
    - 13 -
    law   or   regulation          is   inconsistent       with    such
    standards. . . .
    42 U.S.C. § 1395w-26(b)(3)(A) (2002); Balanced Budget Act of 1997,
    
    Pub. L. No. 105-33, § 1856
    (b)(3)(A), 
    111 Stat. 251
    , 319; see also
    Mass. Ass'n of Health Maint. Orgs. v. Ruthardt, 
    194 F.3d 176
    , 178
    (1st Cir. 1999).        The 2003 amendment removed the requirement that
    a   state   law   be    "inconsistent     with"    federal   standards   to    be
    preempted.    See Medicare Advantage Act § 232(a).                As the Eighth
    Circuit recently commented, "the effect of the 2003 amendment was
    to expand the scope of express Medicare preemption from conflict
    preemption to field preemption." Pharm. Care Mgmt. Ass'n v. Wehbi,
    
    18 F.4th 956
    , 971 (8th Cir. 2021).
    While we are not sure that the labels of "conflict" and
    "field" preemption are especially helpful where, as here, we seek
    to determine congressional intent behind an express preemption
    clause, we agree with the Eighth Circuit that the amendment clearly
    expanded the scope of preemption beyond those laws that directly
    conflict with federal standards.            Indeed, CMS has noted that the
    2003 amendment "relieves uncertainty of which State laws are
    preempted by 'preempting the field' of State laws [apart from the
    two noted exceptions of licensing and solvency laws]."                 Medicare
    Program; Establishment of the Medicare Advantage Program, 70 Fed.
    Reg. at 4694.          Moreover, CMS observed that the 2003 amendment
    "reversed"    the      presumption   that   a     conflict   is   required    for
    - 14 -
    preemption, and noted that under the current provision, state laws
    that in any way relate to Medicare Advantage "standards" are
    "presumed to be preempted unless they relate to licensure or
    solvency."     Medicare Program; Medicare Prescription Drug Benefit,
    
    70 Fed. Reg. 4194
    , 4319 (Jan. 28, 2005) (codified at 42 C.F.R.
    pts. 400, 403, 411, 417, 423).      In short, the Medicare Advantage
    Act's preemption clause does what it purports to do: it extends
    preemption to "any State law or regulation (other than State
    licensing laws or State laws relating to plan solvency) with
    respect   to   [Medicare   Advantage]   plans."    42    U.S.C.    § 1395w-
    26(b)(3).
    There is another    important    indication that Congress
    intended to preclude states from dictating price structures under
    Medicare Advantage.     In a clause entitled "Noninterference," the
    Medicare Advantage Act provides:
    In order to promote competition under this part . . .
    the Secretary [of HHS] may not require any [Medicare
    Advantage] organization to contract with a particular
    hospital, physician, or other entity or individual to
    furnish items and services under this subchapter or
    require a particular price structure for payment under
    such a contract . . . .
    42   U.S.C.    § 1395w-24(a)(6)(B)(iii)     (emphasis    added).       This
    provision only specifically constrains the ability of a federal
    agency -- HHS -- to dictate the price structure for Medicare
    Advantage contracts.       It stands to reason,         however,   that if
    Congress has precluded HHS from dictating the pricing structure to
    - 15 -
    achieve Medicare Advantage's goal of promoting competition, it
    would not have intended to allow states to do so.
    Commentary in the Federal Register further supports a
    conclusion that the Medicare Advantage Act was intended to preempt
    state    laws    dictating     pricing      structures     under     the   Medicare
    Advantage program.        For example, CMS has explicitly noted that
    "payments for local and regional [Medicare Advantage] plans will
    be based on competitive bids rather than administered pricing."
    Medicare Program; Establishment of the Medicare Advantage Program,
    70 Fed. Reg. at 4589 (emphasis added).               Thus, when the preemption
    clause   is     considered     in    the   context   of   Medicare    Advantage's
    regulatory      scheme,   it    is   apparent    that     Congress    intended   to
    prohibit all governmental bodies -- federal and state -- from
    dictating compensation for in-network providers, allowing MAOs the
    flexibility to compete with one another for enrollees.                     See id.
    Appellants concede that, after the 2003 amendment, the
    Medicare Advantage Act's preemption provision "does not require a
    conflict (i.e., inconsistency) between state and federal standards
    for preemption to occur." However, they read the preemption clause
    to still require the existence of a federal "standard" that
    specifically "addresses the subject of the state regulation."                     In
    other words, appellants contend that the Medicare Advantage Act's
    preemption clause does not supersede Act 90's Mandated Price
    Provision because neither the Medicare Advantage Act nor federal
    - 16 -
    regulations supply a "specific, overlapping federal standard"
    governing MAO pricing structures.                Appellants' position is both
    factually and legally unavailing.6
    First, the standards establishing Medicare Advantage's
    competitive bidding system and forbidding administered pricing,
    discussed above, are federal standards addressing the subject of
    the Mandated Price Provision.              Second, requiring the existence of
    a more specific standard would mean, for all intents and purposes,
    limiting the preemption clause to cases of direct "conflict"
    preemption, which, as we have explained, is an approach foreclosed
    by the preemption clause's plain statutory language (preempting
    "any       State   law   or   regulation")      and   the   history   of   the   2003
    amendment.          Third,    while   it   is    true   that   Congress    has   not
    specifically prevented states from dictating pricing structures,
    as it has done with respect to the federal government itself, see
    42 U.S.C. § 1395w-24(a)(6)(B)(iii), requiring the existence of a
    standard explicitly prohibiting states from regulating MAO pricing
    structures would largely eviscerate the effect of the expansive
    preemption clause.
    6Neither the statute nor regulations define the term
    "standards" in the Medicare Advantage Act's preemption clause, nor
    have we done so. We agree with the Eighth Circuit that "standards"
    in this context should be understood simply to mean "statutory
    provision[s] or . . . regulation[s] promulgated under [Medicare
    Advantage] and published in the Code of Federal Regulations."
    Wehbi, 18 F.4th at 971.
    - 17 -
    Finally, and perhaps most        importantly, although the
    Medicare Advantage Act's preemption clause sweeps more broadly
    than conflict preemption, it is clear that Act 90's Mandated Price
    Provision does indeed "conflict" with the federal statutory and
    regulatory regime -- in other words, the federal standards --
    created to ensure that Medicare Advantage contracts "will be based
    on competitive bids rather than administered pricing."              Medicare
    Program; Establishment of the Medicare Advantage Program, 70 Fed.
    Reg. at 4589 (emphasis added).      As appellees note, "[t]he Mandated
    Price Provision regulates with respect to [Medicare Advantage]
    plans in the same area as -- indeed (though not required for
    preemption), in direct conflict with -- . . . federal standards by
    requiring [Medicare Advantage] plans to pay providers at least as
    much   as   the   federal   government     would   pay   under   traditional
    Medicare."     In short, whatever preemption terminology is used, the
    Mandated Price Provision is preempted by the plain language of the
    Medicare     Advantage   Act's   express    preemption    clause    and   the
    Congressional intent it evinces.
    IV.
    We do not minimize the seriousness of the threat Puerto
    Rico faces from the flight of medical professionals.               Nor do we
    overlook the difficulties Puerto Rico faces in addressing this
    crisis.     But on the specific question of whether Act 90's Mandated
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    Price Provision is preempted by federal law, the answer is clear.
    We therefore affirm the judgment of the district court.
    So ordered.   Each side to bear its own costs.
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