336
Opinion of the Court
other entities from doing, with the regulated entities, what the regulations forbid; this does not suffice to place such regulation outside the scope of ERISA's saving clause.1
1 Petitioners also contend that Ky. Rev. Stat. Ann. § 304.17A-270 (West 2001) is not "specifically directed toward" insurers because it applies to "self-insurer or multiple employer welfare arrangement[s] not exempt from state regulation by ERISA." § 304.17A-005(23). We do not think § 304.17A-270's application to self-insured non-ERISA plans forfeits its status as a "law . . . which regulates insurance" under 29 U. S. C. § 1144(b)(2)(A). ERISA's saving clause does not require that a state law regulate "insurance companies" or even "the business of insurance" to be saved from pre-emption; it need only be a "law . . . which regulates insurance," ibid. (emphasis added), and self-insured plans engage in the same sort of risk pooling arrangements as separate entities that provide insurance to an employee benefit plan. Any contrary view would render super-fluous ERISA's "deemer clause," § 1144(b)(2)(B), which provides that an employee benefit plan covered by ERISA may not "be deemed to be an insurance company or other insurer . . . or to be engaged in the business of insurance . . . for purposes of any law of any State purporting to regulate insurance companies [or] insurance contracts. . . ." That clause has effect only on state laws saved from pre-emption by § 1144(b)(2)(A) that would, in the absence of § 1144(b)(2)(B), be allowed to regulate self-insured employee benefit plans. Under petitioners' view, such laws would never be saved from pre-emption in the first place. (The deemer clause presents no obstacle to Kentucky's law, which reaches only those employee benefit plans "not exempt from state regulation by ERISA.")
Both of Kentucky's AWP laws apply to all HMOs, including HMOs that do not act as insurers but instead provide only administrative services to self-insured plans. Petitioners maintain that the application to noninsuring HMOs forfeits the laws' status as "law[s] . . . which regulat[e] insurance." § 1144(b)(2)(A). We disagree. To begin with, these noninsuring HMOs would be administering self-insured plans, which we think suffices to bring them within the activity of insurance for purposes of § 1144(b)(2)(A). Moreover, we think petitioners' argument is foreclosed by Rush Prudential HMO, Inc. v. Moran, 536 U. S. 355, 372 (2002), where we noted that Illinois' independent-review laws contained "some over-breadth in the application of [215 Ill. Comp. Stat., ch. 125,] § 4-10 [(2000)] beyond orthodox HMOs," yet held that "there is no reason to think Congress would have meant such minimal application to noninsurers to remove a state law entirely from the category of insurance regulation saved from preemption."
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