This section contains the nature of the case and procedural background.

Ps include several health maintenance organizations (HMOs) and a Kentucky-based association of HMOs. In order to control the quality and cost of health-care delivery, Ps have contracted with selected doctors, hospitals, and other health-care providers to create exclusive 'provider networks.' Providers in such networks agree to render health-care services to the HMOs' subscribers at discounted rates and to comply with other contractual requirements. In return, they receive the benefit of patient volume higher than that achieved by nonnetwork providers who lack access to Ps' subscribers. D's Any Willing Provider' (AWP) statutes impair Ps' ability to limit the number of providers with access to their networks, and thus their ability to use the assurance of high patient volume as the quid pro quo for the discounted rates that network membership entails. Kentucky law provides that '[a] health insurer shall not discriminate against any provider who is located within the geographic coverage area of the health benefit plan and who is willing to meet the terms and conditions for participation established by the health insurer, including the Kentucky state Medicaid program and Medicaid partnerships.' Ps filed suit against D asserting that ERISA pre-empts D's AWP laws. ERISA pre-empts all state laws 'insofar as they may now or hereafter relate to any employee benefit plan,' 29 U.S.C. § 1144(a), but state 'laws . . . which regulate insurance, banking, or securities' are saved from pre-emption, § 1144(b)(2)(A). The District Court held that the AWP statutes 'relate to' employee benefit plans under § 1144(a), each law 'regulates insurance' and is therefore saved from pre-emption by § 1144(b)(2)(A). The Sixth Circuit also concluded that the AWP laws 'regulate insurance' and fall within ERISA's savings clause. It held held that the AWP laws regulate insurance 'as a matter of common sense,' because they are 'specifically directed toward 'insurers' and the insurance industry. . . ,' it then aplied three factors used to determine whether a practice fits within 'the business of health insurance' in our cases interpreting the McCarran-Ferguson Act. These factors are: 'first, whether the practice has the effect of transferring or spreading a policyholder's risk; second, whether the practice is an integral part of the policy relationship between the insurer and the insured; and third, whether the practice is limited to entities within the insurance industry.' It then reiterated that the 'basic test' under ERISA's savings clause is whether, from a common-sense view, D's AWP laws regulate insurance. It held that the laws passed both the 'common sense' test and the McCarran-Ferguson 'checking points,' the Sixth Circuit upheld D's AWP statutes. Ps appealed.

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