              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT



                           No. 95-30481


CIGNA HEALTHPLAN OF LOUISIANA, INC.; CONNECTICUT
GENERAL LIFE INSURANCE CO.,

                                             Plaintiffs-Appellees,



                              versus


STATE OF LOUISIANA, EX Rel. RICHARD P. IEYOUB, Attorney General,

                                              Defendant-Appellant.



          Appeal from the United States District Court
              for the Middle District of Louisiana

                          April 30, 1996


Before REYNALDO G. GARZA, WIENER, and STEWART, Circuit Judges.
WIENER, Circuit Judge:
     Plaintiffs-Appellees CIGNA Healthplan of Louisiana (CIGNA) and
Connecticut General Life Insurance Company (CGLIC) filed suit
against Defendant-Appellant the State of Louisiana, ex rel. Richard
P. Ieyoub, Attorney General1 (Ieyoub), seeking inter alia (1) a


     1
      In their complaint, CIGNA and CGLIC name Ieyoub, acting in
his official capacity, as the defendant in this action.
Nevertheless, Ieyoub contends that the Eleventh Amendment bars the
suit. The district court rejected this argument out of hand,
characterizing it as “patently without merit.” We agree with the
court's assessment of this issue, as it is well established that
the federal courts have jurisdiction to hear suits against state
officials where, as here, the plaintiffs seek only prospective
declaratory or injunctive relief to prevent a continuing violation
declaratory judgment holding that Louisiana's Any Willing Provider
statute2 is preempted by the Employee Retirement Income Security
Act (ERISA)3; and (2) an injunction prohibiting the commencement of
any action against them for alleged violations of the Any Willing
Provider statute.4    The district court granted summary judgment



of federal law. See, e.g., Shaw v. Delta Air Lines, Inc., 463 U.S.
85, 96 n.14, 103 S. Ct. 2890, 77 L. Ed. 2d 490 (1983); Saltz v.
Tenn. Dep't of Employment Sec., 976 F.2d 966 (5th Cir. 1992);
Brennan v. Stewart, 834 F.2d 1248 (5th Cir. 1988).
     Our conclusion is unaffected by the Supreme Court's recent
decision in Seminole Tribe of Florida v. Florida, 1996 W.L. 134309
(U.S. May 27, 1996) (5-4 decision). There, a sharply divided court
held that suits against state officials for prospective injunctive
relief are barred “where Congress has prescribed a detailed
remedial scheme for the enforcement against a State of a
statutorily created right.” Id. at *16. Here, CIGNA and CGLIC do
not seek to enforce against Louisiana any cause of action created
by Congress; and no congressionally mandated remedial scheme is
implicated.    Instead, CIGNA and CGLIC seek only to prevent a
Louisiana official from violating the Supremacy Clause of the
United States Constitution by encroaching on legal terrain that
Congress has properly deemed preempted. Accordingly, the Court's
holding in Seminole does not apply to the circumstances of this
case; and we affirm the district court's determination that the
Eleventh Amendment does not proscribe this suit.
     The district court also rejected Ieyoub's contention that this
action is barred by the Anti-Injunction Act.         As the Anti-
Injunction Act prohibits a federal court from staying a pending
state court proceeding, and as CIGNA and CGLIC seek no such stay,
we affirm the district court's holding on this issue. See, e.g.,
B & A Pipeline Co. v. Dorey, 904 F.2d 996, 1001 n.15 (5th Cir.
1990) (citing Dombrowski v. Pfister, 380 U.S. 479, 85 S. Ct. 1116,
14 L. Ed. 2d 22 (1965)).
            2
        See LA. REV. STAT. ANN. § 40:2202(5)(c) (West 1992) (“No
licensed provider, other than a hospital, who agrees to the terms
and conditions of the preferred provider contract shall be denied
the right to become a preferred provider to offer health services
within the limits of his license.”).
        3
         See 29 U.S.C.S. §§ 1001 et seq. (Law. Co-op 1990 & Supp.
1995).
    4
     CIGNA and CGLIC also sought declaratory and injunctive relief
on the theory that the Any Willing Provider statute violates the
Due Process clause of the United States Constitution. The district
court dismissed the due process claim for failure to state a claim.
CIGNA and CGLIC do not challenge this ruling on appeal.
declaring that ERISA preempts the Any Willing Provider statute
insofar as it applies to third party administrators and health care
plans that provide services to ERISA-qualified benefit plans, and
issued an injunction barring enforcement of the statute against
CIGNA and CGLIC.            Concluding that the Any Willing Provider statute
relates to employee benefit plans within the meaning of ERISA's
preemption clause,5 and that the statute is not exempted from
preemption by ERISA's insurance savings clause,6 we affirm.
                                                I.
                                FACTS AND PROCEEDINGS
A.       FACTS
         1.      The Any Willing Provider Statute
         In 1984, in an attempt to reduce health care costs without
jeopardizing         the     quality       of   care   received    by    patients,7      the
Louisiana legislature enacted the Health Care Cost Control Act (the
Act).8        The Act specifically authorizes the formation of preferred
provider organizations (PPOs), which are defined as “contractual .
.    .   agreements         between    a    provider    or   providers        and   a   group
purchaser or purchasers to provide for alternative rates of payment
.    .   .     .”9    The    definitional        section     of   the   Act    contains    a
definition of “group purchaser,” then follows the definition with
an illustrative list of some of the types of entities that may be


         5
             See 29 U.S.C.S. § 1144(a) (Law. Co-op 1990).
         6
     See 29 U.S.C.S. § 1144(b)(2)(A) (Law. Co-op 1990) (providing
that, with limitations irrelevant to the instant appeal, “nothing
in this title shall be construed to exempt or relieve any person
from any law of any state which regulates insurance, banking, or
securities”).
         7
             See LA. REV. STAT. ANN. § 40:2201(A) (West 1992).
         8
      See LA. REV. STAT. ANN. §§ 40:2201 et seq. (West 1992 & Supp.
1996).
         9
             LA. REV. STAT. ANN. § 40:2202(5) (West 1992).

                                                3
included     in   that     category.10       According    to   the   Act,   “group
purchasers” may include “[e]ntities which contract for the benefit
of their insured, employees, or members”11; and “[e]ntities which
serve as brokers for the formation of [contracts with providers],
including health care financiers, third party administrators, . .
. or other intermediaries.”12
     The Any Willing Provider statute, which is incorporated as §
2202(5)(c) of the Act, mandates that “[n]o licensed provider . . .
who agrees to the terms and conditions of the preferred provider
contract      shall   be    denied   the     right   to   become     a   preferred
provider.”13      According to an advisory opinion issued by the
Louisiana Attorney General's office in February 1993, the arbitrary
exclusion from a PPO of a licensed physician who is “willing and
able to accede to the terms and conditions of the preferred
provider contract” constitutes both a violation of the Any Willing
Provider statute and an unfair trade practice under Louisiana law.14
     2.       The Parties


     10
      Section 2202(3) of the Act reads:
     “Group purchaser” shall mean an organization or entity
     which contracts with providers for the purpose of
     establishing a preferred provider organization. “Group
     purchaser” may include:
     (a) Entities which contract for the benefit of their
     insured [sic], employees, or members such as insurers,
     self-funded organizations, Taft-Hartley trusts, or
     employers who establish or participate in self funded
     trusts or programs.
     (b) Entities which serve as brokers for the formation of
     such contracts, including health care financiers, third
     party administrators, providers, or other intermediaries.
See LA. REV. STAT. ANN. § 40:2202(3) (West 1992).
     11
          LA. REV. STAT. ANN. § 40:2202(3)(a).
     12
          LA. REV. STAT. ANN. § 40:2202(3)(b).
     13
          LA. REV. STAT. ANN. § 40:2202(5)(c).
     14
          See Op. Att'y Gen. No. 92-824 (Feb. 8, 1993).

                                         4
      Both CIGNA and CGLIC constitute “group purchasers” under the
terms   of   the     Act.      CIGNA   is       a    licensed      health    maintenance
organization (HMO) that provides prepaid health care coverage to
enrolled subscribers —— including the sponsors of ERISA-qualified
employee benefit plans —— by contracting with selected physicians,
hospitals,     and     other     health         care     suppliers      (collectively,
providers).        The chosen providers agree to comply with CIGNA's
quality control requirements and to offer health care services to
CIGNA's subscribers at a discounted rate.
      In Louisiana, CIGNA's provider network is marketed by CGLIC,
a licensed health insurer. CGLIC also contracts with CIGNA for the
right to use the provider network in conjunction with the insured
and self-funded health benefit plans that CGLIC offers to, and
administers for, its clients.             Like CIGNA's subscribers, CGLIC's
clients include the sponsors of ERISA-qualified employee welfare
benefit plans.
      3.     Impact of the Any Willing Provider Statute
      In 1994, CIGNA notified one of the physicians on its provider
network,     Dr.    Ronald     Sylvest,         that    his       contract   was    being
terminated.    Dr. Sylvest sued CIGNA, alleging that his termination
violated the Any Willing Provider statute.                          After a temporary
restraining order was issued against CIGNA, the parties reached a
settlement; and the suit was dismissed.
      Since the dismissal of the Sylvest suit, CIGNA has received
statutory notice from the Attorney General's office that a formal
complaint has been filed by a doctor charging that CIGNA violated
the Any Willing Provider statute by rejecting his application to
its provider panel.         Moreover, CIGNA has received, and would like
to   reject,   applications       from      a       number   of    physicians      seeking
inclusion in its network of providers.
B.    PROCEEDINGS
      In an effort to free themselves from the threat of suit for

                                            5
the violation of the Any Willing Provider statute, CIGNA and CGLIC
brought this action against Ieyoub in federal district court,
seeking inter alia (1) a declaratory judgment holding that the Any
Willing        Provider    statute   is   preempted       by   ERISA;   and   (2)   an
injunction prohibiting the commencement of any action against them
for alleged violations of the Any Willing Provider statute.                         The
district       court    granted   summary      judgment    declaring    that   ERISA
preempts the Any Willing Provider Statute insofar as it relates to
third party administrators and health care plans that provide
services to ERISA-qualified benefit plans, and issued an injunction
barring Ieyoub from enforcing the statute against CIGNA and CGLIC.
Ieyoub timely appealed.
                                          II.
                                      ANALYSIS
A.   STANDARD     OF   REVIEW
     When reviewing a grant of summary judgment, we view the facts
and inferences in the light most favorable to the non-moving
party15; and we apply the same standards as those governing the
trial court in its determination.16                 Summary judgment must be
granted if a court determines "that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law."17
B.   ERISA PREEMPTION18


     15
      See Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256,
266 (5th Cir. 1995).
     16
      See Neff v. Am. Dairy Queen Corp., 58 F.3d 1063, 1065 (5th
Cir. 1995), cert. denied, 116 S. Ct. 704 (1996).
     17
          FED. R. CIV. P. 56(c).
          18
        Ieyoub contends that we may not address the substantive
issues of this case, as CIGNA and CGLIC lack standing and no active
justiciable controversy exists. We agree with the district court's
conclusion that these arguments are meritless, and we approve the

                                           6
     1.      Preemption Doctrine
     The first question we must address is whether the Any Willing
Provider statute is preempted pursuant to § 514(a) of ERISA.
Section 514(a) states that ERISA "shall supersede any and all State
laws insofar as they may now or hereafter relate to any employee
benefit plan" that is covered by the federal statute.19 Courts have
interpreted this preemption clause broadly, observing that its
deliberatively expansive language was designed "to establish . . .
plan regulation as exclusively a federal concern."20
     The Supreme Court has given the phrase "relate to" a "broad
common-sense meaning."21     A state law relates to an ERISA plan "in
the normal sense of the phrase if it has connection with or
reference to such a plan."22       A state law can relate to an ERISA
plan even if that law was not specifically designed to affect such
plans, and even if its effect is only indirect.23      If a state law
does not expressly concern employee benefit plans, it will still be
preempted insofar as it applies to benefit plans in particular
cases.24     Of particular significance to our analysis today is the


reasoning set forth in the court's opinion. See CIGNA Healthplan
of Louisiana, Inc. v. State of Louisiana, ex rel. Richard P.
Ieyoub, 883 F. Supp. 94 (M. D. La. 1995).
     19
          See 29 U.S.C.S. § 1144(a).
     20
      Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 138, 111 S.
Ct. 478, 112 L. Ed. 2d 474 (1990) (internal quotations and
citations omitted).
     21
      Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 47, 107 S. Ct.
1549, 95 L. Ed. 2d 39 (1987).
     22
          Shaw, 463 U.S. at 96-97 (emphasis added).
    23
      See Rozzell v. Security Services, Inc., 38 F.3d 819, 821 (5th
Cir. 1994) (citing Pilot Life, 481 U.S. 41).
     24
      See Sommers Drug Stores Co. Employee Profit Sharing Trust v.
Corrigan Enter., Inc., 793 F.2d 1456 (5th Cir. 1986), cert. denied,
479 U.S. 1034, and cert. denied, 479 U.S. 1089 (1987).

                                    7
fact that the Supreme Court has repeatedly held that ERISA preempts
“state laws that mandat[e] employee benefit structures or their
administration.”25
     Nevertheless, ERISA preemption is not without limits.                  The
Supreme Court has cautioned that "[s]ome state actions may affect
employee benefit plans in too tenuous, remote, or peripheral a
manner to warrant a finding that the law 'relates to' the plan."26
A unanimous Supreme Court has recently held in this regard that
ERISA does not preempt state laws that have “only an indirect
economic effect on the relative costs of various health insurance
packages” available to ERISA-qualified plans.27
     ERISA itself contains provisions which limit the scope of
preemption.28      For the purposes of the instant appeal, it is
relevant that under § 514(b)(2)(A) of ERISA, preemption stops short
of “any law of any State which regulates insurance.”29
     2.      Application of § 514(a) to the Instant Appeal
     As     discussed   above,   §   514(a)   of   ERISA   provides   for   the
preemption of state laws that either refer to or have a connection




     25
      New York State Conference of Blue Cross & Blue Shield Plans
v. Travelers Ins. Co., 115 S. Ct. 1671, 1678, 131 L. Ed. 2d 695
(1995) [hereinafter Travelers] (citing Shaw, 463 U.S. 85; FMC Corp.
v. Holliday, 498 U.S. 52, 111 S. Ct. 403, 112 L. Ed. 2d 356 (1990);
Alessi v. Raybestos-Manhattan, Inc., 451 US. 504, 101 S. Ct. 1895,
68 L. Ed. 2d 402 (1981)).
     26
          Shaw, 403 U.S. at 100 n.21.
     27
      Travelers, 115 S. Ct. at 1680 (discussing New York statute
requiring hospitals to collect surcharges from patients covered by
commercial insurers but not from patients insured by a Blue
Cross/Blue Shield plan) (emphasis added).
     28
          See 29 U.S.C.S. § 1144(b) (Law. Co-op 1990 & Supp. 1995).
    29
     See 29 U.S.C. § 1144(b)(2)(A); see also Travelers, 115 S. Ct.
at 1675.

                                       8
with an ERISA-qualified plan.30         The Any Willing Provider statute
qualifies for preemption on both counts.                First, it refers to
ERISA-qualified plans.         More specifically, the statute requires
that    all     licensed   providers   “who   agre[e]    to   the   terms   and
conditions of the preferred provider contract” must be accepted as
providers in the PPO.31        Under the terms of the Act, a preferred
provider contract constitutes an agreement “between a provider or
providers and a group purchaser or purchasers to provide for
alternative rates of payment specified in advance for a defined
period of time.”32          The Act specifically provides that group
purchasers may include entities, such as “Taft-Hartley trusts or
employers who establish or participate in self funded trusts or
programs,”33 which “contract [with health care providers] for the
benefit of their . . . employees.”34          Given that these enumerated
entities constitute ERISA-qualified plans,35 the Act, and through


       30
      See, e.g., Travelers, 115 S. Ct. at 1677; Dist. of Columbia
v. Greater Washington Bd of Trade, 506 U.S. 125, 113 S. Ct. 580,
121 L. Ed. 2d 513 (1992); Shaw, 463 U.S. at 96-97.
       31
            See LA. REV. STAT. ANN. § 40:2202(5)(c).
       32
            See LA. REV. STAT. ANN. § 40:2202(5)(a) (emphasis added).
       33
            See LA. REV. STAT. ANN. § 40:2202(3)(a).
        34
       See id. (“'Group purchaser' may include: . . . Entities
which contract for the benefit of their insured [sic], employees,
or members such as insurers, self-funded organizations, Taft-
Hartley trusts, or employers who establish or participate in self
funded trusts or programs.”) (emphasis added). We note that the
statute would be considerably clearer if it had been drafted as
follows: “'Group purchaser' may include: . . . Entities (such as
insurers, self-funded organizations, Taft-Hartley trusts, or
employers who establish or participate in self funded trusts or
programs) which contract for the benefit of their insured [sic],
employees, or members.”
       35
      See 29 U.S.C.S. § 1002(1)(A) (Law. Co-op 1992) (defining an
employee welfare benefit plan as “any plan, fund, or program which
. . . is . . . maintained by an employer . . . to the extent that

                                       9
it the Any Willing Provider statute,36 expressly refers to ERISA
plans.
     Moreover, the statute “relates to” ERISA plans in the sense
that it is connected with such plans.             The Supreme Court has
emphasized that preemption is appropriate on this ground when
statutes      “mandat[e]   employee     benefit   structures   or   their
administration.”37    In the instant case, ERISA plans that choose to
offer coverage by PPOs are limited by the statute to using PPOs of
a certain structure —— i.e., a structure that includes every
willing, licensed provider.           Stated another way, the statute
prohibits those ERISA plans which elect to use PPOs from selecting
a PPO that does not include any willing, licensed provider.           As
such, the statute connects with ERISA plans.
     Neither is it of any consequence that plans might not choose
to offer coverage by PPOs:            It is sufficient for preemption
purposes that the statute eliminates the choice of one method of




such plan, fund, or program . . . is maintained for the purpose of
providing for its participants . . . medical . . . care or benefits
. . . .”); see also 29 U.S.C.S. § 1002(1)(B) (Law. Co-op 1992)
(including in the definition of employee welfare benefit plans
programs providing “any benefit described in section 302(c) of the
Labor Management Relations Act”). The referenced section of the
Labor Management Relations Act provides for the establishment of
Taft-Hartley trusts. See 29 U.S.C.S. § 186(c) (Law. Co-op 1993);
Lickteig v. Business Men's Assurance Co. of Am., 61 F.3d 579, 581
n.3 (8th Cir. 1995).
    36
      We recognize that in holding that the statute refers to ERISA
plans, we rely heavily on language that is found not in the text of
the statute itself, but rather in the surrounding provisions of the
Act that define the key terms of the statute. As these provisions
are indispensable to the interpretation and application of the
statute, we cannot separate the references to ERISA in those
provisions from such references in the statute itself.
     37
          See Travelers, 115 S. Ct. at 1678.

                                      10
structuring benefits.38       The fact that neither CIGNA nor CGLIC is
itself an ERISA plan is likewise inconsequential:              By denying
insurers, employers, and HMOs the right to structure their benefits
in a particular manner, the statute is effectively requiring ERISA
plans to purchase benefits of a particular structure when they
contract with organizations like CIGNA and CGLIC.39 In that regard,
the statute “bears indirectly but substantially on all insured
plans,”40 and is accordingly preempted by ERISA.41
     Ieyoub     and   amici   curiae42   strenuously   argue   that   this


          38
        See, e.g., Alessi, 451 U.S. at 524 (discussing a state
statute that banned pension benefit offsets based on workers
compensation awards, and holding that the statute related to ERISA
plans pursuant to § 514(a) because it “eliminate[d] one method for
calculating . . . benefits . . . that is permitted by federal
law”); see also FMC Corp., 498 U.S. at 60 (holding that statute
related to ERISA plans pursuant to § 514(a) because it
“prohibit[ed] plans from being structured in a manner requiring
reimbursement in the event of a recovery from a third party”).
         39
       See Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S.
724, 105 S. Ct. 2380, 85 L. Ed. 2d 728 (1985) (holding that a
statute “relates to” ERISA plans for the purposes of preemption if
it “requires [the plans] to purchase the . . . benefits specified
in the statute when they purchase a certain kind of common
insurance policy.”).
     40
          See Metropolitan Life, 471 U.S. at 739.
    41
      Cf. Stuart Circle Hosp. Corp. v. Aetna Health Management, 995
F.2d 500, 502 (4th Cir.) (holding that Virginia statute prohibiting
insurance    companies   from   unreasonably    discriminating   in
establishing PPOs is covered by ERISA's preemption provision
because it “restricts the ability of an insurance company to limit
the choice of providers that otherwise would confine the
participants of an employee benefit plan to those preferred by the
insurer”) (also holding that the statute was saved from preemption
by ERISA's insurance savings clause), cert. denied, 114 S. Ct. 579
(1993); Blue Cross and Blue Shield of Atlanta v. Nielsen, No. CV-
94-L-1265-S, 1996 U.S. Dist. LEXIS 1970 (Jan. 31, 1996) (holding
that Alabama's equivalent of the Any Willing Provider statute is
preempted by ERISA).
         42
       A brief was filed in support of Ieyoub's position by the
Louisiana State Medical Society and the Louisiana Dental

                                    11
conclusion is barred by the Supreme Court's recent decision in New
York    State     Conference   of   Blue   Cross   &   Blue    Shield   Plans    v.
Travelers Ins. Co.,43 which was decided shortly after the district
court issued its opinion in the instant case.                 In Travelers, the
Court held that ERISA does not preempt a New York statute that
requires hospitals to collect surcharges from patients covered by
commercial insurers, but not from patients insured by Blue Cross &
Blue Shield plans.         The plaintiffs in Travelers argued that the New
York statute was preempted by ERISA because it “make[s] the Blues
more attractive (or less unattractive) as insurance alternatives
and thus ha[s] an indirect economic effect on choices made by
insurance buyers, including ERISA plans.”44                   The Supreme Court
disagreed, holding that statutes that have “only an indirect
economic effect on the relative costs of various health insurance
packages”45 available to ERISA plans are not preempted by ERISA.
The Court reasoned that “[a]n indirect economic influence . . .
does not bind plan administrators to any particular choice.”46                  The
Court also emphasized the limited nature of its holding:
       [W]e do not hold today that ERISA preempts only direct
       regulation of ERISA plans, nor could we do that with
       fidelity to the views expressed in our prior opinions on
       the matter.    We acknowledge that a state law might
       produce such acute, albeit indirect, economic effects, by
       intent or otherwise, as to force an ERISA plan to adopt
       a certain scheme of substantive coverage . . . and that
       such a state law might indeed be preempted under § 514.
       But as we have shown, New York's surcharges do not fall
       into [that] category; they affect only indirectly the
       prices of insurance policies, a result no different from


Association acting as amici curiae.
       43
            115 S. Ct. 1671.
       44
            See id. at 1679 (emphasis added).
       45
            Id. at 1680.
       46
            Id.

                                       12
     myriad state laws in areas traditionally subject to local
     regulation . . . .47
     Unlike the New York statute at issue in Travelers, Louisiana's
Any Willing Provider statute specifically mandates that certain
benefits       available       to     ERISA    plans       must   be   constructed      in   a
particular manner.             In other words, the Louisiana statute does not
merely raise the cost of the implicated benefits; it delineates
their very structure.                  As such, the statute falls outside the
purview       of     the    limited     Travelers      holding:         The     Court   there
repeatedly           recognized       that    ERISA    preempts        “state    laws    that
mandat[e] employee benefit structures.”48 Accordingly, we hold that
the Travelers decision leaves undisturbed our conclusion that
Louisiana's Any Willing Provider statute is preempted by ERISA.
     3.            The Insurance Exception
     Determining that the Louisiana statute “relates to” ERISA
plans        and    is     therefore    covered       by    ERISA's     broad    preemption
provision does not complete our inquiry.                          We must next consider
whether the statute is nonetheless saved from preemption by one of
the exceptions embodied in ERISA's savings clause.                              This clause
provides that “nothing in this title shall be construed to exempt
or relieve any person from any law of any State which regulates
insurance,          banking,     or     securities.”49            In   Metropolitan      Life
Insurance Co. v. Massachusetts,50 the Supreme Court delineated the
requirements that a statute must meet to come within the insurance
facet of the savings clause.                  As we have noted in prior opinions,


     47
          Id. at 1683 (emphasis added) (citations omitted).
        48
      Id. at 1678; see also id. at 1679 (distinguishing New York
law from preempted laws on ground that it “does not bind plan
administrators to any particular choice”); id. at 1681.
     49
          29 U.S.C.S. § 1144(b)(2)(A) (emphasis added).
     50
          471 U.S. 724.

                                               13
the Court took a conjunctive two-step approach:
     First, the court determined whether the statute in
     question fitted the common sense definition of insurance
     regulation.   Second, it looked at three factors: (1)
     Whether the practice (the statute) has the effect of
     spreading the policyholders' risk; (2) whether the
     practice is an integral part of the policy relationship
     between the insurer and the insured; and (3) whether the
     practice is limited to entities within the insurance
     industry.    If the statute fitted the common sense
     definition of insurance regulation and the court answered
     “yes” to each of the questions in the three part test,
     then the statute fell within the savings clause exempting
     it from ERISA preemption.51
Thus, if a statute fails either to fit the common sense definition
of insurance regulation or to satisfy any one element of the three-
factor Metropolitan Life test, then the statute is not exempt from
preemption by the ERISA insurance savings clause.52
     When we begin to apply that test to Louisiana's Any Willing
Provider Statute, we may start and finish with the third factor of
the Metropolitan Life test:               On its face, Louisiana's statute
obviously      is    not    “limited    to     entities    within   the   insurance
industry.”      Even though the statute lists insurers as one group
covered by its terms, it also specifies, in a non-exclusive list,
that it applies to “self-funded organizations, Taft-Hartley trusts,
or employers who establish or participate in self funded trusts or
programs,”53        as   well   as   “health      care   financiers,   third    party
administrators, providers, or other intermediaries.”54                         As the
statute fails to meet the third factor of the Metropolitan Life



     51
       Tingle v. Pac. Mut. Ins. Co., 996 F.2d 105, 108 (5th Cir.
1993) (citations omitted) (emphasis added); see also NGS Am., Inc.
v. Barnes, 998 F.2d 296, 299 (5th Cir. 1993).
     52
          See Tingle, 996 F.2d at 108; NGS Am., 998 F.2d at 299.
     53
          LA. REV. STAT. ANN. 40:2202(3)(a).
     54
          LA. REV. STAT. ANN. 40:2202(3)(b).

                                             14
test,55 we affirm the district court's holding that the statute is
not saved from preemption by the insurance exception of § 514(b) of
ERISA.
                               III.
                            CONCLUSION
     For the foregoing reasons, we affirm the district court's
grant of summary judgment declaring that ERISA preempts the Any
Willing Provider Statute insofar as it relates to third party
administrators and health care plans that provide services to
ERISA-qualified benefit plans. We also affirm the court's grant of
an injunction barring Ieyoub from enforcing the statute against
CIGNA and CGLIC.
AFFIRMED.




     55
       See Iron Workers Mid-South Pension Fund v. Terotechnology
Corp., 891 F.2d 548 (5th Cir.), cert. denied, 497 U.S. 1924 (1990).
As discussed above, having determined that the statute fails to
meet one element of the Metropolitan Life test, we need not
consider whether the statute meets the other elements.

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