Opinion No. 1987-72

Jack McCoy

Attorney General of Arkansas — Opinion
March 17, 1987

STEVE CLARK, Attorney General

Honorable Jack McCoy State Representative 612 McNeil Street Malvern, AR 72104

RE: House Bill 1691

Dear Representative McCoy:

We are writing in response to your February 20, 1987 request for our opinion as to the constitutionality of House Bill 1691, a copy of which you attached to your request. Based upon the reasons which follow, it is our opinion that House Bill 1691, as it relates to health care services furnished or provided by health care maintenance organizations (HMO’s), is void by operation of the Supremacy Clause, U.S. Const. Art. VI, sec. 2, because it is contrary to 42 U.S.C. § 300e-10(a)(1)(C).

42 U.S.C. § 300e-10 reads in relevant portion:

“In the case of any entity which cannot do business as a health maintenance organization in a state in which it proposes to furnish basic and supplemental health services because that state by law, regulation, or otherwise . . . requires that all physicians or a percentage of physicians in the locale participate or be permitted to participate in the provision of services for the entity . . . such requirements shall not apply to that entity so as to prevent it from operating as a health maintenance organization in accordance with 300e of this title.”

The Supremacy Clause operates to supersede those state laws in conflict with federal statutes when Congress unmistakably has provided for the federal legislations’ [legislation’s] controlling effect. See Health Care Plan of New Jersey, Inc. v. Schweiker, 553 F. Supp. 440, 446 (D.N.J. 1982). Because 42 U.S.C. § 300e-10
(a)(1)(C) specifically prohibits state law from requiring that all physicians be permitted to participate in providing services for federally qualified HMO’s, it is our opinion that the portion of HB 1691 which relates to HMO’s is void. We see no other constitutional problems with House Bill 1691 as written.

We hope that the foregoing will prove of material benefit to you. This opinion, which I hereby approve, was prepared by Assistant Attorney General Frank J. Wills. If we can be of further assistance, please advise.