United States: Seventh Circuit Rejects In-Network Providers' Bid For ERISA Claims Procedures

Claims by providers seeking to assert the rights of ERISA plan participants have been percolating in courts throughout the country.1 The Seventh Circuit has now weighed in, rejecting the notion that providers who have payment disputes with ERISA plans are entitled to utilize a plan's ERISA-mandated claims appeal procedures simply by virtue of being part of the plan's network.2

The litigation began in 2009, when the Pennsylvania Chiropractic Association and several chiropractors filed suit against Blue Cross and Blue Shield Association and a number of Blue Cross and Blue Shield entities to challenge the insurers' recoupment policies. The insurers had paid for health care services the providers had provided to patients, but subsequently unilaterally determined those payments were calculated on the wrong basis (e.g., fee for service rather than a capitated fee). The Insurers demanded repayment or withheld future payments in order to recoup the overpayments.

Although they had provider contracts with the insurers that specified the basis for calculation of their fees, the plaintiffs characterized the recoupments as retroactive denials of benefits due under the underlying ERISA plans of the insurers' customers and argued that they were entitled to the same protections afforded to plan participants under ERISA Section 503's claims procedure, 29 U.S.C. 1133, which requires that every employee benefit plan:

  1. provide adequate notice in writing to any participant or beneficiary whose claim for benefits under the plan has been denied, setting forth the specific reasons for such denial, written in a manner calculated to be understood by the participant, and
  2. afford a reasonable opportunity to any participant whose claim for benefits has been denied for a full and fair review by the appropriate named fiduciary of the decision denying the claim.

Following a trial in December 2013, Judge Kennelly of the Northern District of Illinois accepted the plaintiffs' theory. The judge entered a permanent injunction against one of the insurers, Independence Blue Cross ("IBC") requiring that its claims notices and appeal procedures meet the ERISA procedural requirements. This injunction would have required recoupment notices to include an explanation of IBC's reasoning; identify plan provisions to support IBC's position; describe information the provider could submit to avoid repayment; and provide notice of appeal rights. In the event of an appeal, the injunction would have required IBC to accept any comments or documents submitted by the provider and to disclose any records relevant to its final decision.

IBC appealed the decision to the Seventh Circuit, where a skeptical Judge Easterbrook dispatched the plaintiffs' claims as exceeding ERISA's requirements, reversing the district court decision.

First, the court observed that ERISA's claims procedures are available only to "participants" and "beneficiaries." The plaintiffs conceded they are not participants, and the court rejected plaintiffs' arguments that they are beneficiaries. ERISA defines a "beneficiary" as a person designated "by a participant" or "by the terms of an employee benefit plan." The providers did not have assignments of claims from their patients and could not point to any plan term that would make them beneficiaries. The court rejected the providers' argument that they became beneficiaries simply by virtue of their contracts with IBC.

Second, the court rejected the providers' strange argument that "every insurer (perhaps every policy)" should ipso facto be deemed to be a "plan," thus making every provider-insurer agreement subject to ERISA rules. Here again, the court relied mainly on ERISA's definitions. A "plan" is "any plan, fund, or program. . . established or maintained by an employer or by an employee organization, or by both, to the extent such plan, fund or program was established or is maintained for the purpose of" providing medical or other employee benefits. Independence, which was created decades before ERISA, is not established or maintained by an employer, and serves millions of people (more, the court noted, than any ERISA plan), does not fit the bill. The court pointed out that the providers had contracted with the insurers as insurers (the court characterized these as "wholesale-level" contracts), not with employers or plan sponsors (which the court described as "retail-level" contracts). Not "any document related to a plan is itself a plan" (court's emphasis).

Finally, the court was unmoved by the providers' concern that ERISA's preemption clause might prevent them from bringing state law claims to enforce their contract claims. In the court's view, "[w]e need not distort the word 'beneficiary' in order to enable medical providers to contract for and enforce procedural rules about how insurers pay for medical care."

In reaching this result, the Seventh Circuit joined the Second Circuit3 in holding that in-network status is not enough to entitle a provider to the ERISA rights afforded to participants. The dismissive tone of the Seventh Circuit's decision, which relied on little more than the text of the statute, also suggests that the court did not view the decision as a close one. Perhaps the decisions by these two influential courts will begin to stem the tide of ERISA claims brought by providers.

Footnotes

1 See links to prior blog posts on this topic:

http://www.erisa-employeebenefitslitigationblog.com/2015/07/01/chasing-payments-district-court-holds-that-providers-lack-standing-to-sue-erisa-plans-for-benefits-if-the-patients-remain-liable-to-the-provider-in-the-event-of-non-payment/

http://www.erisa-employeebenefitslitigationblog.com/2015/04/24/fifth-circuit-finds-out-of-network-medical-provider-has-standing-to-sue-health-plan/

http://www.erisa-employeebenefitslitigationblog.com/2013/11/12/out-of-network-provider-may-get-in-network-erisa-plan-reimbursement/

http://www.erisa-employeebenefitslitigationblog.com/2011/10/25/northern-district-of-california-ruling-of-first-impression-on-right-of-medical-plan-trustees-to-claw-back-overpayments-from-health-care-providers/

2 Pennsylvania Chiropractic Ass'n v. Independence Hosp. Indem. Plan, Inc., No. 14-2322, — F.3d –, 2015 WL 5853690 (7th Cir. Oct. 1, 2015)

3 Rojas v. CIGNA Health & Life Insurance Co., 793 F.3d 253 (2d Cir. 2015).

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