The Second Circuit concluded that a promissory estoppel claim by an out-of-network provider against an insurer was not completely preempted by ERISA and thus remanded the claim to state court for further proceedings. The provider's claim was predicated on its assertion that the insurer made certain representations about coverage for the insured. The Court held that the provider was not the type of party that can bring an ERISA benefit claim because the plan at issue bars assignments of an insured's right to benefits to out-of-network providers. In so ruling, the Court rejected several arguments. First, the Court ruled that a determination about whether the purported assignment was valid under the terms of the plan is not an issue that must be decided under ERISA. Second, the Court determined that the provider's claim could not be construed as a claim for benefits because the provider had no pre-existing relationship with the insurer and was not a valid assignee of benefits. Third, the Court found inapplicable its prior conclusion that a provider's pre-approval telephone call to an insurer can never "give rise to an independent legal duty" enforced outside of ERISA. Here, unlike in previous cases, the provider's lack of a contractual relationship with the plan or the insurer meant that it was not required to call the insurer to receive pre-approval; rather, the provider called the insurer for its own benefit. Thus, the provider's suit to enforce the alleged promises made during the call is one to enforce its own rights that exist independent from the plan. The case is McCulloch Orthopaedic Surgical Services, PLLC v. Aetna Inc., 2017 WL 2173651 (2d Cir. May 18, 2017).
Out-of-Network Physician's Claim Against Insurer Not Preempted by ERISA
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