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

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
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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
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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
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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.
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§ 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.
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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
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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.
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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).
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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."
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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)
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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).
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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
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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
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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
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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.
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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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