Kentucky Ass'n of Health Plans, Inc. v. Nichols

I write separately with respect to Part III of the majority’s opinion to dissent from the majority’s conclusion that Ky. Rev.Stat. Ann. §§ 304.17A-2701 and 304.17A-171(2) (Banks-Baldwin 1995) fall within ERISA’s insurance savings clause. I believe that Kentucky’s any willing provider laws have little to do with insurance and are not saved from preemption by ERISA’s Insurance Savings Clause as they do not regulate insurance as a matter of common sense and fail all three of the McCarran-Ferguson factors.

I. Insurance Savings Clause

A

The district court in the case at bar devoted only a sentence to…