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<pre>                 United States Court of Appeals <br>                     For the First Circuit <br> <br> <br> <br> <br> <br>No. 99-1133 <br> <br>  MASSACHUSETTS ASSOCIATION OF HEALTH MAINTENANCE ORGANIZATIONS, <br>                       Plaintiff, Appellee, <br> <br>                                v. <br> <br>            LINDA RUTHARDT, COMMISSIONER OF INSURANCE, <br>                      Defendant, Appellant. <br> <br> <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                FOR THE DISTRICT OF MASSACHUSETTS <br> <br>          [Hon. Richard G. Stearns, U.S. District Judge] <br> <br> <br> <br>                              Before <br> <br>                      Selya, Circuit Judge, <br>                 Bownes, Senior Circuit Judge, <br>                   and Lipez, Circuit Judge. <br>                                 <br>                                 <br>                                 <br>     Thomas A. Barnico, Assistant Attorney General, Commonwealth of <br>Massachusetts, with whom Thomas F. Reilly, Attorney General, was on <br>brief, for appellant. <br>     Clare D. McGorrian and Health Law Advocates on brief for Mass. <br>Senior Action Council, Health Care for All, Inc., Disability Law <br>Center, Gerontology Institute of the University of Mass.-Boston, <br>Center for Medicare Advocacy, Alzheimer's Disease and Related <br>Disorders Ass'n of Eastern Mass., and AIDS Action Committee of <br>Mass., amici curiae. <br>     John T. Montgomery, with whom Richard S. Weitzel and Ropes & <br>Gray were on brief, for appellee. <br> <br> <br> <br> <br> <br>October 8, 1999 <br> <br> <br> <br>

  SELYA, Circuit Judge.  The Commonwealth of Massachusetts <br>requires organizations that offer Medicare beneficiaries <br>supplemental health care insurance to provide full prescription <br>drug coverage.  When the federal government enacted legislation <br>that imposed its own imperatives on such organizations, an <br>association of health care providers sought a declaration that the <br>federal scheme preempted the Massachusetts drug-benefit directive.  <br>The United States District Court for the District of Massachusetts, <br>ruling ore tenus, found preemption.  We affirm. <br>I.  BACKGROUND <br>  If social programs are meant to furnish a safety net, <br>Medicare is a notoriously porous one.  A main cause of this <br>porosity is that most outpatient prescription drugs are not <br>covered.  As a result, Medicare beneficiaries who desire such <br>coverage must either purchase supplemental private insurance or <br>enroll in a health maintenance organization (HMO).  For many years, <br>Massachusetts HMOs, like their counterparts elsewhere, offered <br>benefit options ranging from no coverage for prescription drugs to <br>full coverage.  Then, in a bold stroke designed to improve health <br>care for the elderly and disabled, the Massachusetts legislature <br>passed a law commanding all supplemental providers to offer at <br>least one plan that includes unlimited outpatient prescription drug <br>coverage.  See Mass. Gen. Laws Ann. ch. 176K (West 1998) (effective <br>Jan. 14, 1994); Mass. Regs. Code tit. 211,  71.23 (1998) <br>(effective Jan. 1, 1995). <br>  The Medicare program, 42 U.S.C.  1395-1395ggg (1999), <br>remains a work in progress.  Since its inception in 1965, Congress <br>has made countless modifications to it.  Continuing in this mode, <br>Congress, as part of the fiscal 1997 budget bill, established the <br>Medicare+Choice Program (the Program).  See Balanced Budget Act of <br>1997 (BBA), Pub. L. No. 105-33  4001, 111 Stat. 251, 275-328 <br>(codified at 42 U.S.C.  1395w-21 to w-28).  Participation in the <br>Program is conditioned on providers offering basic Medicare <br>benefits, meeting certain other statutorily defined criteria, and <br>neither charging more in premiums nor furnishing less in <br>supplemental benefits than the levels established through <br>regulation by the Secretary of Health and Human Services (the <br>Secretary).  See 42 U.S.C.  1395w-22, w-24, w-25, w-26. <br>  The BBA includes the following provisions discussing the <br>Program's preemptive effect: <br>                  (b) Establishment of other standards <br> <br>                  . . . <br> <br>                     (3) Relation to state laws <br> <br>                            (A) In general <br> <br>                              The standards established under <br>              this subsection shall supersede any <br>              State law or regulation (including <br>              standards described in subparagraph <br>              (B)) with respect to Medicare + <br>              Choice plans which are offered by <br>              Medicare + Choice organizations <br>              under this part to the extent such <br>              law or regulation is inconsistent <br>              with such standards. <br> <br>                            (B) Standards specifically <br>              superseded <br> <br>                              State standards relating to the  <br>              following are superseded under this <br>              paragraph: <br> <br>                                 (i) Benefit requirements. <br> <br>                                  (ii) Requirements relating to <br>                 inclusion or treatment of <br>                 providers. <br> <br>                                  (iii) Coverage determinations <br>                 (including related appeals and <br>                 grievance processes). <br> <br>Id.  1395w-26. <br>  In April 1998, the Massachusetts Commissioner of <br>Insurance (the Commissioner), undaunted by the BBA, announced that <br>the Commonwealth would continue to require supplemental providers <br>to offer full prescription drug coverage.  See Bulletin No. 98-03 <br>(Apr. 17, 1998).  In June 1998, the Secretary published an interim <br>final rule interpreting subparagraph (B) of section 1395w-26 to <br>nullify state benefit requirements (even those that are not <br>inconsistent with federal standards).  See 63 Fed. Reg. 34,968, <br>35,099 (June 26, 1998) (codified at 42 C.F.R.  422.402 (1998)).  <br>This rule remains in effect.  See 64 Fed. Reg. 7968 (Feb. 17, <br>1999).  Massachusetts promptly proclaimed that it would defy the <br>federal regulation and continue to enforce its drug-benefit <br>requirement "absent a judicial determination that any state law is <br>preempted."  Bulletin No. 98-07 (July 20, 1998). <br>  The Commonwealth's intransigence led the Massachusetts <br>Association of HMOs (the Association) to seek a declaration that <br>the BBA and the Secretary's rule preempt the Commonwealth's full <br>drug coverage requirement.  The federal district court obliged.  <br>The Commissioner appeals. <br>II.  ANALYSIS <br>  We begin by mapping the legal terrain and then turn to <br>the topography of the case at hand. <br>                         A.  An Overview. <br>  The Supremacy Clause provides that federal law "shall be <br>the supreme Law of the Land; . . . any Thing in the Constitution or <br>Laws of any State to the Contrary notwithstanding."  U.S. Const. <br>art. VI, cl. 2.  By virtue of this commandment, state law that <br>conflicts with federal law is a nullity.  See Maryland v. <br>Louisiana, 451 U.S. 725, 746 (1981);  Gibbons v. Ogden, 22 U.S. (9 <br>Wheat.) 1, 210-11 (1824); M'Culloch v. Maryland, 17 U.S. (4 Wheat.) <br>316, 427 (1819); Greenwood Trust Co. v. Massachusetts, 971 F.2d <br>818, 822 (1st Cir. 1992). <br>  Preemption is strong medicine.  Thus, although the power <br>to preempt is absolute, its exercise is not lightly to be presumed.  <br>See Gregory v. Ashcroft, 501 U.S. 452, 460 (1991).  Rather, courts <br>"start with the assumption that the historic police powers of the <br>States [are] not to be superseded by . . . Federal Act unless that <br>[is] the clear and manifest purpose of Congress."  Rice v. Santa Fe <br>Elevator Corp., 331 U.S. 218, 230 (1947).  It follows inexorably <br>that congressional intent stands at the base of all preemption <br>analysis.  See Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 <br>(1992). <br>  The Supreme Court generally distinguishes between express <br>and implied theories of preemption.  Express preemption occurs <br>"when Congress has 'unmistakably . . . ordained' that its <br>enactments alone are to regulate a [subject, and] state laws <br>regulating that [subject] must fall."  Jones v. Rath Packing Co., <br>430 U.S. 519, 525 (1977) (quoting Florida Lime & Avocado Growers, <br>Inc. v. Paul, 373 U.S. 132, 142 (1963)).  Implied preemption is <br>more elusive; that concept "has a certain protean quality, which <br>renders pigeonholing difficult."  French v. Pan Am Express, Inc., <br>869 F.2d 1, 2 (1st Cir. 1989).  Generally speaking, implied <br>preemption encompasses both "field" and "conflict" preemption <br>principles.  The former set of principles reflects the view that <br>Congress's intent to occupy a given field can be inferred from the <br>pervasiveness of federal regulation and/or the dominance of the <br>federal interest in a particular area of legislative activity.  See <br>Rice, 331 U.S. at 230; French, 869 F.2d at 2.  By contrast, the <br>latter set of principles reflects the idea that congressional <br>intent also can be deduced from circumstances such as inconsistency <br>or impossibility.  See Gade v. National Solid Wastes Mgmt. Ass'n, <br>505 U.S. 88, 98 (1992) (plurality op.). <br>  The Court recently offered additional guidance on the <br>proper approach to statutes that include explicit preemption <br>language.  In Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996), the <br>Justices explained that although an express preemption clause may <br>indicate congressional intent to preempt "at least some state law," <br>courts nonetheless must "identify the domain expressly pre-empted <br>by that language."  Id. at 484 (citation and internal quotation <br>marks omitted).  Two presumptions inform the process of determining <br>the scope of an express preemption clause.  First, the familiar <br>assumption that preemption will not lie absent evidence of a clear <br>and manifest congressional purpose must be applied not only when <br>answering the threshold question of whether Congress intended any <br>preemption to occur, but also when measuring the reach of an <br>explicit preemption clause.  See id. at 485.  Second, while the <br>scope determination must be anchored in the text of the express <br>preemption clause, congressional intent is not to be derived solely <br>from that language but from context as well.  See id. at 486 <br>(acknowledging as "relevant" data "the structure and purpose of the <br>statute as a whole, as revealed not only in the text, but through <br>the reviewing court's reasoned understanding of the way in which <br>Congress intended the statute and its surrounding regulatory scheme <br>to affect business, consumers, and the law" (citations and internal <br>quotation marks omitted)); accord California Fed. Sav. & Loan Ass'n <br>v. Guerra, 479 U.S. 272, 284 (1987) (explaining that, in such <br>circumstances, a court "must examine the [act's] language against <br>the background of its legislative history and historical context"). <br>                         B.  The Merits. <br>  Against this legal landscape, we turn to the merits.  Our <br>review is plenary.  See Philip Morris Inc. v. Harshbarger, 122 F.3d <br>58, 62 (1st Cir. 1997). <br>                                1. <br>  On its own, section 1395w-26(b)(3)(B) appears to reflect <br>an unqualified congressional desire to preempt state standards <br>relating to, inter alia, benefit requirements.  The following <br>excerpt drives the point home: <br>                     State standards relating to the following <br>         are superseded under this paragraph: <br> <br>                            (i) Benefit requirements. <br> <br>                            (ii) Requirements relating to inclusion <br>              or treatment of providers. <br> <br>                            (iii) Coverage determinations (including <br>              related appeals and grievance processes). <br> <br>Noting that the Commissioner does not dispute that the <br>Massachusetts law and regulation mandating a full prescription drug <br>coverage option are "state standards relating to . . . benefit <br>requirements," the Association invites us to declare that the <br>quoted passage ends the matter. <br>  We decline the Association's invitation to read <br>subparagraph (B) as an entirely free-standing statutory provision <br>for two reasons.  For one thing, the text of the subparagraph <br>includes the phrase "under this paragraph."  The Association <br>attempts to slough off these words as "nothing more than a drafting <br>formality, akin to stating 'hereunder,'" and optimistically <br>suggests that the phrase refers only to the paragraph's title <br>("Relation to state laws") and not to the conjoined subparagraphs <br>that together constitute "this paragraph."  Appellee's Brief at 24 <br>n.5.  Although it is true that courts sometimes rely on the titles <br>of statutory enactments in plumbing their meaning, see, e.g., <br>United States v. Chapman, 60 F.3d 894, 897-98 (1st Cir. 1995), that <br>practice should not be indulged at the expense of the text itself.  <br>For another thing, even if subparagraph (B) included no external <br>referent, we would consider ourselves obliged to examine the <br>statutory provision in context.  See Medtronic, 518 U.S. at 486; <br>see also O'Connell v. Shalala, 79 F.3d 170, 176 (1st Cir. 1996) <br>(warning that statutory construction should never proceed by <br>"focus[ing] with Cyclopean intensity" on a single provision). <br>  What, then, does it mean to be "superseded under this <br>paragraph"?  The Commissioner accurately observes that the <br>paragraph includes subparagraph (A), which provides: <br>                     The standards established under this <br>         subsection shall supersede any State law or <br>         regulation (including standards described in <br>         subparagraph (B)) with respect to Medicare + <br>         Choice plans which are offered by Medicare + <br>         Choice organizations under this part to the <br>         extent such law or regulation is inconsistent <br>         with such standards.  [Emphasis supplied.] <br> <br>From the parenthetical reference to subparagraph (B), the <br>Commissioner deduces that subparagraph (A) circumscribes the <br>preemptive scope of subparagraph (B) by applying a conflict <br>preemption regime to all state standards, including those that <br>relate to benefit requirements.  Because Massachusetts law insists <br>upon additional benefits, her thesis runs, it is not inconsistent <br>with federal law.  See, e.g., 42 U.S.C.  1395w-22(a)(1)(B) <br>(mandating that Medicare+Choice plans shall provide additional <br>benefits required under section 1395w-24(f)(1)(A)); id.  1395w- <br>24(f)(1)(E) (clarifying that nothing in subsection 1395w-24(f) <br>shall be construed as preventing organizations from providing <br>supplemental benefits described in section 1395w-22(a)(3)); id.  <br>1395w-22(a)(3)(C) (similarly emphasizing that organizations may <br>provide additional benefits).  Thus, the Commonwealth's ukase <br>should be allowed to operate ex proprio vigore. <br>  The Commissioner's interpretation possesses a patina of <br>plausibility.  In the last analysis, however, it would diminish <br>subparagraph (B) to a list of examples   a role that the text and <br>context of the subparagraph belie.  This subparagraph declares that <br>certain state standards "are" superseded under the paragraph; it <br>does not intimate that these standards "may" be preempted if the <br>Secretary promulgates particular types of regulations.  As a <br>general matter, we are loath to reduce statutory language to a <br>merely illustrative function, and the language of this subparagraph <br>does not readily invite a departure from that norm.  This is <br>particularly true when we recollect that "[a]ll words and <br>provisions of statutes are intended to have meaning and are to be <br>given effect, and no construction should be adopted which would <br>render statutory words or phrases meaningless, redundant or <br>superfluous."  United States v. Ven-Fuel, Inc., 758 F.2d 741, 751- <br>52 (1st Cir. 1985).  Though a list of examples is not necessarily <br>superfluous   Congress may consider a specific point important or <br>uncertain enough to justify a modicum of redundancy   the <br>surrounding statutory framework compels a finding of superfluity in <br>the case of subparagraph (B).  In the same subsection, the <br>Secretary is enjoined to "establish by regulation . . . standards <br>. . . for Medicare + Choice organizations and plans . . . to carry <br>out this part," 42 U.S.C.  1395w-26(b)(1), and the subject areas <br>enumerated in subparagraph (B) are unquestionably central to the <br>Medicare+Choice program, see, e.g., id.  1395w-22 ("Benefits and <br>beneficiary protections"); id.  1395w-22(f) ("Grievance <br>mechanism"); id.  1395w-22(g) ("Coverage determinations, <br>reconsiderations, and appeals").  In this context, it strains <br>credulity to suppose that, absent this cryptic parenthetical, the <br>Secretary would overlook the need for regulation in these vital <br>areas. <br>  Withal, the rule against superfluity can be a double- <br>edged interpretive sword.  Were the parenthetical in subparagraph <br>(A) otherwise inexplicable, we would be faced with an unhappy <br>choice between nullifying the parenthetical or reducing <br>subparagraph (B) to mere window-dressing.  Ordinary prudence, then, <br>counsels in favor of searching the full paragraph's text and the <br>surrounding statutory framework to see whether they collectively <br>suggest a more substantive role for subparagraph (B), consistent <br>with the odd parenthetical that appears in subparagraph (A).  To <br>this end, we mull three theories that the Association hawks. <br>  The district court embraced the first of the <br>Association's theories:  that the parenthetical simply authorizes <br>the Secretary to promulgate, among other standards, regulations <br>pertaining to the subject areas specifically preempted by <br>subparagraph (B).  On this reasoning, subparagraph (A) describes <br>the manner in which state standards are preempted by federal <br>regulations, whereas subparagraph (B) declares that certain state <br>standards are specifically superseded by the BBA itself.  This <br>hypothesis fails because it depends on the faulty assumption that <br>the Secretary is blind to the rest of the statute.  After all, the <br>parenthetical is not the source of the Secretary's rulemaking <br>authority in these areas; section 1395w-26(b)(1) fills that role. <br>  What is more, subparagraph (B) would represent a curious <br>placement for a provision describing the preemptive effect of the <br>BBA itself.  The subparagraph provides that certain state standards <br>are superseded "under this paragraph"   not "under this part"   and <br>the relevant paragraph appears in a subsection that orders the <br>Secretary to establish standards by regulation.  A far more logical <br>location for an announcement of the BBA's preemptive effect would <br>be section 1395w-22, which outlines the statutory benefit <br>requirements for Medicare+Choice plans.  For these reasons, we <br>reject the Association's first theorem. <br>  The Association's remaining two theories are:  (1) that <br>the parenthetical informs the Secretary that she has interpretative <br>authority to determine whether a particular state standard falls <br>into one of the categories enumerated in subparagraph (B); and (2) <br>that it puts the Secretary on notice that certain types of state <br>laws are deemed per se to clash with her regulations (should she <br>promulgate any).  At first blush, both of these attributions may <br>seem extraneous.  Subparagraph (B) is obviously within the "part" <br>which the Secretary is instructed to implement via regulation, see <br>42 U.S.C.  1395w-26, and one might think it equally obvious that <br>the Secretary's power extends to subparagraph (B) itself.  But that <br>glib conclusion overlooks that the presumption against preemption <br>applies to the task of defining the scope of an express preemption <br>clause.  See Medtronic, 518 U.S. at 485.  Hence, the general <br>delegation provision in paragraph (1) may not by itself resolve the <br>potential deadlock between the presumption and the need for <br>deference to agency expertise.  See Chevron U.S.A. Inc. v. Natural <br>Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984); see <br>generally Jack W. Campbell IV, Regulatory Preemption in the <br>Garcia/Chevron Era, 59 U. Pitt. L. Rev. 805 (1998). <br>  This brings us to Smiley v. Citibank (S.D.), N.A., 517 <br>U.S. 735, 743-44 (1996), in which the Court unanimously held that <br>deference to a regulation that defines an ambiguous term in a <br>substantive statutory provision is appropriate, even though the <br>effect is to preempt state law.  The Smiley Court distinguished <br>Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992), on the <br>ground that the issue there involved the meaning of an express <br>preemption clause.  See Smiley, 517 U.S. at 744.  Thus, Smiley left <br>open the question of what happens when the strong centrifugal force <br>of deference to an agency's interpretation of an express preemption <br>clause comes into contact with the strong centripetal force of the <br>presumption against preemption. <br>  The intervening decision in Medtronic only complicates <br>matters.  There, five Justices accorded what appears to be an <br>intermediate level of deference to an agency's interpretation of <br>the scope of an express preemption provision.  See Medtronic, 518 <br>U.S. at 496 (according the agency's interpretation "substantial <br>weight"); id. at 505-06 (Breyer, J., concurring) (allowing the <br>agency a "degree of leeway").  Against the backdrop of this <br>doctrinal uncertainty, the parenthetical here may well indicate <br>that Congress intended the Secretary's regulations, including those <br>designed to delineate the reach of subparagraph (B), to warrant at <br>least some measure of deference, the non-preemption presumption <br>notwithstanding. <br>  Although this distinction seems plausible, we need not <br>rest our decision on it.  The Association says that the most <br>logical purpose of the parenthetical is to put the Secretary on <br>notice that state standards in particular areas create a per se <br>conflict with federal regulation.  On its own, this proposed <br>function merely restates the argument's conclusion.  If <br>subparagraph (B) clearly provides for the automatic preemption of <br>state law in the three listed categories, then it affords ample <br>notice to the Secretary without recourse to (or need for) the <br>parenthetical in subparagraph (A).  Despite this deficiency, <br>however, the appellee's argument contains a solid kernel of truth.  <br>The important idea is not notice but, rather, the implied <br>suggestion of a special category of inconsistency.  Recognizing <br>this fact brings the most natural reading of subparagraph (B) and <br>the earlier parenthetical into focus, and supplies the last piece <br>of the interpretive puzzle. <br>  We believe that paragraph (3) as a whole concerns the <br>relationship between federal regulations and state criteria.  This <br>follows from the placement of the paragraph in a section that deals <br>with the establishment of standards by the Secretary, not in the <br>section containing the relevant self-executing provisions.  As part <br>of this construct, subparagraph (A) provides a general rule of <br>conflict preemption that (as the parenthetical and title ["In <br>general"] make clear) applies universally   that is, all state <br>standards are preempted to the extent they are inconsistent with <br>federal regulations. <br>  Subparagraph (B) goes a step further.  It says in <br>unqualified terms that state standards relating to three enumerated <br>areas "are superseded under this paragraph."  In context, we think <br>this means that state standards concerning these three enumerated <br>areas are deemed to be per se inconsistent with any federal <br>regulation.  This taxonomy makes sense when one considers the <br>centrality of the enumerated areas vis--vis the Medicare+Choice <br>program.  Subparagraph (B) thus makes explicit what might well have <br>been implied:  the anticipation that, once promulgated, federal <br>regulations will dominate these particular fields, leaving no room <br>therein for state standard-setting. <br>  The distinction between this interpretation and the <br>theory advanced by the Association, as we parse the statutory <br>scheme, is that state standards in the three enumerated areas are <br>not expressly preempted unless and until the Secretary triggers <br>preemption by promulgating regulations.  This makes sense in light <br>of the intentionally skeletal nature of the statute.  Congress, in <br>the midst of enacting a massive budget bill, chose not to limn the <br>exact parameters of a complex new program.  Instead, it provided <br>the ossature and left the Secretary the duty of adding flesh and <br>sinew by regulation.  Perhaps Congress believed that to preempt <br>state law before the Secretary made the Program's corpus complete <br>would have been premature.  In all events, once the Secretary <br>established regulations pursuant to subsection (b)   as she has <br>done, see 42 C.F.R. pt. 422   the Commonwealth's requirement that <br>supplemental health care providers must offer full prescription <br>drug coverage became ineffectual. <br>  There is a final and decisive textual argument, not made <br>by the parties or the amici.  Paragraph (1) of section 1395w-25(a) <br>requires Medicare+Choice organizations to be licensed under state <br>law.  Paragraph (2) outlines a mechanism whereby provider-sponsored <br>organizations can secure waivers of this requirement from the <br>Secretary.  As a condition to procuring such a waiver, an <br>organization must comply with all state consumer protection and <br>quality standards insofar as such standards "are consistent with <br>the standards established under this part."  Id.  1395w- <br>25(a)(2)(G)(i)(III).  In the very next sentence, the statute warns <br>that "[s]uch standards shall not include any standard preempted <br>under section 1395w-26(b)(3)(B) of this title."  This warning is <br>gibberish unless subparagraph (B) itself preempts certain state <br>standards   an assumption that is fundamentally incompatible with <br>the Commissioner's characterization of that subparagraph as a mere <br>list of examples. <br> <br>                                2. <br>  Although textual analysis resolves the statutory <br>construction issue, we sometimes have looked to legislative history <br>to confirm textual intuitions.  See, e.g., United States v. Meade, <br>175 F.3d 215, 219 (1st Cir. 1999); Barker v. United States Dep't of <br>Labor, 138 F.3d 431, 436 (1st Cir. 1998).  In an abundance of <br>caution, we do so here. <br>  A brief survey of the BBA's legislative history <br>reinforces our belief that we have reached the correct destination.  <br>The conference report that preceded the law's passage lacks any <br>compelling evidence that Congress intended to limit the preemption <br>of state benefit requirements to those that directly conflict with <br>federal law.  To the contrary, the committee justified the <br>preemption paragraph on the following basis: <br>      The Conferees believe that the <br>  Medicare+Choice program will continue to grow <br>  and eventually eclipse original fee-for- <br>  service Medicare as the predominant form of <br>  enrollment under the Medicare program.  Under <br>  original fee-for-service, the Federal <br>  government alone set legislative requirements <br>  regarding reimbursement, covered providers, <br>  covered benefits and services, and mechanisms <br>  for resolving coverage disputes.  Therefore, <br>  the Conferees intend that this legislation <br>  provide a clear statement extending the same <br>  treatment to private Medicare+Choice plans <br>  providing Medicare benefits to Medicare <br>  beneficiaries. <br> <br>H.R. Conf. Rep. No. 105-77, at 638, reprinted in 1997 U.S.C.C.A.N. <br>176, 259.  This excerpt demonstrates that Congress intended the <br>federal government   and the federal government alone   to set <br>requirements anent "covered benefits."  <br>  The Commissioner accepts this conclusion, but strives to <br>carve out an exception large enough to shelter the Commonwealth's <br>drug-benefit mandate.  She argues that supplemental benefits do not <br>constitute either "covered" or "Medicare" benefits, so the quoted <br>passage cannot be read to manifest an intent to preempt state <br>regulation of supplemental benefits.  This argument fails to <br>persuade.  In the first place, the corresponding statutory <br>provision addresses "[b]enefit requirements," 42 U.S.C.  1395w- <br>26(b)(3)(B)(i), not "covered" or "Medicare" benefits, an omission <br>that undermines the Commissioner's heavy reliance on these <br>qualifying terms.  In the second place, the BBA makes the provision <br>of supplemental benefits dependent upon the Secretary's approval.  <br>See id.  1395w-22(a)(3)(A).  Thus, those benefits arguably are <br>"covered" by the Program. <br>  Looking beyond what Congress said to what Congress <br>actually did, we find affirmative support for our interpretation <br>of subparagraph (B).  At the same time that it created subparagraph <br>(B), Congress eliminated a provision that would have accomplished <br>exactly the result which the Commissioner and her amici urge this <br>court to adopt.  An earlier version of the House bill provided that <br>a state could enforce its own beneficiary requirements if such <br>requirements were more stringent than those established under <br>federal law.  See H.R. 2015, 105th Cong.  4001 (section 1852(n)), <br>reprinted in 143 Cong. Rec. H4416, H4441 (daily ed. June 25, 1997).  <br>The conference agreement that added subparagraph (B) deleted this <br>provision.  See H.R. Conf. Rep. No. 105-217, at 611, 637-38, <br>reprinted in 1997 U.S.C.C.A.N. 176, 231-32, 258-59.  Notably, the <br>precursor to paragraph (3) in the same draft version also had <br>included language to the effect that consumer protections more <br>exacting than those established under subsection (b) would not be <br>preempted by federal regulation.  See H.R. 2015,  4001 (section <br>1856(b)(5)), reprinted in 143 Cong. Rec. at H4446.  Again, the <br>conference committee eliminated this language.  Congress sometimes <br>can speak as clearly by opting not to enact proffered language as <br>by enacting it.  See, e.g., INS v. Cardoza-Fonseca, 480 U.S. 421, <br>442-43 (1987) ("Few principles of statutory construction are more <br>compelling than the proposition that Congress does not intend sub <br>silentio to enact statutory language that it has earlier discarded <br>in favor of other language." (citation and internal quotation marks <br>omitted)); United States v. Rivera, 131 F.3d 222, 226-27 (1st Cir. <br>1997) (similar); Rhode Island v. Narragansett Indian Tribe, 19 F.3d <br>685, 700 (1st Cir. 1994) (similar).  And when Congress speaks, <br>courts charged with the delicate work of statutory construction <br>should listen. <br> <br>III.  CONCLUSION <br>  The road we have traveled has been long and winding.  <br>Massachusetts posits that the arduousness of the journey itself <br>requires reversal:  Congress's intent cannot be "clear and <br>manifest," Rice, 331 U.S. at 230, if this court can discern it only <br>after undertaking such an odyssey.  But this is an especially <br>intricate preemption regime, and courts must do their best to <br>animate complex statutes as well as simple ones.  In this instance, <br>the length of our journey more accurately reflects the variety of <br>the arguments advanced rather than any uncertainty inherent in the <br>statutory regime   and we perhaps have prolonged matters unduly by <br>pausing along the way to illuminate subtle flaws in those arguments <br>out of respect for the earnestness that underlies them.  Finally, <br>and most importantly, we have felt it incumbent upon us to explain <br>how one   and only one   interpretation of the language that <br>Congress chose imbues each statutory provision with genuine <br>meaning. <br>  We need go no further.  Congress's intent to prefer an <br>exclusively federal regulatory scheme and to preempt all state <br>benefit requirements is clear and manifest, even if not immediately <br>apparent.  Consequently, the judgment below must be <br> <br>Affirmed.</pre>

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