Bobby P. Kearney, MD, PLLC v. Blue Cross & Blue Shield Northcarolina
Bobby P. Kearney, MD, PLLC v. Blue Cross & Blue Shield Northcarolina
Opinion of the Court
Plaintiff, Bobby P. Kearney, MD, PLLC, brings this action against Blue Cross and Blue Shield of North Carolina ("Blue Cross NC" or "BCBSNC") seeking payment for services under Section 502(a) of the Employment Retirement Income Security Act ("ERISA"),
I. BACKGROUND
Plaintiff is a medical practice located in Iredell County, North Carolina, "devoted solely and exclusively" to treating patients with substance abuse and drug addiction issues. (ECF No. 50 ¶¶ 1, 13.) BCBSNC "is an administrator of health benefit plans for its insureds or members." (ECF No. 52 at 3; see ECF No. 50 ¶¶ 2, 14.) Plaintiff and BCBSNC entered into a Network Participation Agreement ("Provider Agreement"), effective May 8, 2011, under which Plaintiff "agree[d] to render Medically Necessary Covered Services" to BCBSNC Members
*622On July 22, 2015, BCBSNC notified Plaintiff by letter that, "effective immediately," BCBSNC would institute a pre-payment review of certain claims for urine tests administered by Plaintiff to BCBSNC Members. (Id. ¶¶ 23, 24.) BCBSNC further informed Plaintiff that, "[g]oing forward," Plaintiff would be required to "submit all medical record documentation" to support the billing of claims for urine tests, including "the test results along with the specific rationale for performing these tests." (Id. ¶ 26.) Upon receiving BCBSNC's July 22, 2015 letter, Plaintiff complied with the new billing submission requirements while attempting, to no avail, to discuss the matter with BCBSNC in order to understand "the reason or reasons that [BCBSNC] was investigating [Plaintiff, and] why the protocol for presenting claims had changed." (Id. ¶¶ 29, 31-33.) BCBSNC subsequently terminated Plaintiff as a provider for BCBSNC on June 2, 2016. (Id. ¶ 38.)
In February 2016, Plaintiff filed this action in state court, alleging that BCBSNC failed to pay Plaintiff for certain "medically necessary" services provided to BCBSNC insureds. (ECF No. 6.) On March 10, 2016, BCBSNC removed the action to this Court, contending that federal question jurisdiction was present because "one or more of Plaintiff's claims are completely preempted by [ERISA]." (ECF No. 1 ¶ 8.) On April 11, 2016, BCBSNC moved to dismiss all claims in Plaintiff's Complaint under Rule 12(b)(6) ("First Motion to Dismiss"). (ECF No. 15.) On February 9, 2017, this Court entered a Memorandum Opinion and Order which, in pertinent part, granted in part and denied in part BCBSNC's First Motion to Dismiss, and further, granted leave for Plaintiff to amend its Complaint "so that Plaintiff can properly file its claims consistent with this opinion and clarify any claim brought under § 502." Bobby P. Kearney, MD, PLLC v. Blue Shield of N.C. ,
On February 22, 2017, Plaintiff filed an Amended Complaint, (ECF No. 27), which BCBSNC moved to dismiss, (ECF No. 29). Plaintiff then simultaneously filed a motion seeking leave to file a Second Amended Complaint as well as a motion to remand this action to state court. (ECF Nos. 34, 36.) On March 23, 2018, this Court entered an Order denying Plaintiff's motion to remand; granting leave for Plaintiff to file a Second Amended Complaint; and denying as moot, without prejudice, BCBSNC's motion to dismiss. (ECF No. 43 at 9-10.) BCBSNC now moves to dismiss Plaintiff's Second Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (ECF No. 51.)
II. STANDARD OF REVIEW
A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure"challenges the legal sufficiency of a complaint," including whether the complaint meets the pleading standard of Rule 8(a)(2). Francis v. Giacomelli ,
Generally, on a Rule 12(b)(6) motion to dismiss, a court cannot consider documents beyond the complaint without converting the motion into a motion for summary judgment. See Occupy Columbia v. Haley ,
III. DISCUSSION
Defendant moves for Rule 12(b)(6) dismissal of Plaintiff's Complaint on the following four grounds: (i) "Plaintiff lacks statutory standing to bring a claim under ERISA";
As an initial matter, Plaintiff argues that its claims "hinge[ ] solely upon the Provider Agreement" and that "[t]his case has nothing to do with efforts by Plaintiff to recover payment for medically necessary services from any of the health insurance plans alluded to in Defendant's Motion to Dismiss." (ECF No. 54 at 3, 5.) According to Plaintiff, BCBSNC's assertions that "Plaintiff has filed [this] civil action to recover under ERISA" is erroneous, and "[n]othing could be further from the truth, as appears on the face of the pleadings." (Id. at 2-3.)
However, Plaintiff specifically alleges the following on the face of its Second Amended Complaint:
(i) that "[t]his Court has jurisdiction to consider Plaintiff's claims pursuant to the authority granted in29 U.S.C. § 1331 , et seq., particularly29 U.S.C. § 1332 , ERISA § 502," (ECF No. 50 ¶ 5); and
(ii) "ERISA § 502(a)(1)(B) grants to Plaintiff the right to bring this action to recover sums due [Plaintiff] for medically necessary services provided ... to Defendant's insureds," (id. ¶ 8).
Plaintiff also pleads its first claim in the Second Amended Complaint as: "Payment for medically necessary services under ERISA § 502(a)(1)(B)." (Id. at 14.) The Court continues to be perplexed, (see ECF No. 43 at 4-5), by Plaintiff's repeated contention that this action does not involve ERISA and, instead, arises out of a breach of contract claim, despite having elected to amend its Complaint twice to include an ERISA claim, (see ECF Nos. 27, 50). Thus, as this Court stated in its Memorandum Opinion and Order entered February 9, 2017, "Plaintiff's breach of contract claim is really one for benefits under [ERISA] § 502(a)." (ECF No. 26 at 9.) Accordingly, the Court will now address BCBSNC's first argument that "Plaintiff lacks statutory standing to bring a claim under ERISA," (ECF No. 52 at 2, 7-12.)
Defendant first argues that Plaintiff's ERISA claim should be dismissed "because Plaintiff does not have direct or derivative standing ... to bring an ERISA claim." (ECF No. 52 at 12.) Specifically, Defendant contends that "Plaintiff does not have direct statutory standing to bring an ERISA action because he is not a fiduciary, beneficiary, or a plan participant." (Id. at 7.) Defendant further contends that Plaintiff lacks derivative standing because "[u]nder the plain language of the Blue Cross NC health benefit plans, Blue Cross NC members are contractually prohibited from assigning benefits to any third party, and any purported assignment has no legal effect." (Id. at 11-12.) Plaintiff argues that "[s]tanding to enforce a claim under ERISA is a non-issue, because it is abundantly clear from the pleadings and the facts here that Plaintiff's claim against Defendant arises from a 'Provider Agreement' between Plaintiff and Defendant and not between Plaintiff and an ERISA plan which has defined benefits for an insured." (ECF No. 54 at 5.)
"Congress enacted ERISA to 'protect ... the interests of participants in employee benefit plans and their beneficiaries' by setting out substantive regulatory requirements for employee benefit plans and to 'provid[e] for appropriate remedies, sanctions, and ready access to the Federal courts.' " Aetna Health Inc. v. Davila ,
Plaintiff is a healthcare provider. (See ECF No. 50 ¶ 1.) "Healthcare providers ... are generally not 'participants' or 'beneficiaries' under ERISA and thus lack independent standing to sue under ERISA." Gables Ins. Recovery, Inc. v. Blue Cross & Blue Shield of Fla., Inc. ,
With respect to derivative standing, however, most courts, including district courts in this circuit,
Here, Plaintiff's Second Amended Complaint alleges that Plaintiff obtained a written assignment of benefits from its BCBSNC insured patients which reads as follows:
ASSIGNMENT OF INSURANCE BENEFITS
I hereby irrevocably assign and transfer to Addiction Recovery Medical Services (hereafter referred to as ARMS), and or Bobby P. Kearney, MD, all rights, title and interest in the benefits payable for services rendered by ARMS or Bobby P. Kearney, MD, provided in any insurance policy(ies) under which I am insured. Said irrevocable assignment and transfer shall be for the purpose of granting ARMS or Bobby P. Kearney, MD, an independent right of recovery on said policy(ies) of insurance but shall not be construed to be an obligation of ARMS or Bobby P. Kearney, MD, to pursue any such right of recovery. This assignment and transfer shall not take away my standing to make claim or sue for benefits individually should coverage be denied by any insurance company(ies).
I hereby authorize all insurance company(ies) under which I am insured to pay directly to ARMS or Bobby P.[ ] Kearney, MD, all benefits due under said policy(ies) by reason of services rendered therein.
(ECF No. 50 ¶ 17b.) Accepting this allegation as true, if valid, such an assignment could confer upon Plaintiff derivative standing to sue under ERISA. See Gables Ins. Recovery, Inc. ,
"ERISA plans are contractual documents." Johnson v. Am. United Life Ins. Co. ,
*627St. Francis Reg'l Med. Ctr. v. Blue Cross & Blue Shield of Kan., Inc. ,
Under the heading "Benefits to which MEMBERS are Entitled," the BCBSNC benefit plans provide the following:
The benefits described in this benefit booklet are provided only for MEMBERS .8 These benefits and the right to receive payment under this health benefit plan cannot be transferred or assigned to any other person or entity, including PROVIDERS .9 Under the PLAN , BCBSNC may pay a PROVIDER directly.... However, any PROVIDER 's right to be paid directly is through such contract with BCBSNC, and not through the PLAN . Under the PLAN, BCBSNC has the sole right to determine whether payment for services is made to the PROVIDER [.] ... BCBSNC's decision to pay a PROVIDER directly in no way reflects or creates any rights of the PROVIDER under the PLAN , including but not limited to benefits, payments or procedures.
(E.g. , ECF No. 52-1 at 64.) When interpreting an ERISA health insurance plan, the Court will "enforce the terms of an ERISA insurance plan according to 'the plan's plain language in its ordinary sense.' " Johnson , 716 F.3d at 819-20 (quoting Wheeler v. Dynamic Eng'g, Inc. ,
In its response, Plaintiff cites two cases in support of its standing argument. (ECF No. 54 at 6-7.) The first case cited by Plaintiff is Borrero v. United Healthcare of N.Y., Inc. ,
*628Borrero ,
In contrast, in the second case cited by Plaintiff-Spinedex Physical Therapy USA Inc. v. United Healthcare of Ariz., Inc. ,
Having concluded that Plaintiff lacks direct or derivative statutory standing to bring this ERISA action, the Court will grant BCBSNC's motion to dismiss the Second Amended Complaint.
For the reasons outlined herein, the Court enters the following:
ORDER
IT IS THEREFORE ORDERED that Blue Cross NC's Motion to Dismiss Plaintiff's Second Amended Complaint, (ECF No. 51), is GRANTED, and Plaintiff's claims against Defendant are hereby DISMISSED WITH PREJUDICE.
A Judgment dismissing this action will be entered contemporaneously with this Order.
Under the Provider Agreement, " 'Member' ... means an individual designated by [BCBSNC] who is eligible for coverage and/or benefits and is properly enrolled in a Benefit Plan." (ECF No. 50 at 19 ¶ 1.17.) The Provider Agreement further defines "Benefit Plan" as "the particular set of health benefits and services provided as set forth in an applicable evidence of coverage, that is issued to an individual or to a Group and that describes the terms, conditions, limitations, exclusions, benefits, rights and obligations relating to the Member's health benefits and services." (Id. at 18 ¶ 1.4.)
(ECF Nos. 52-1 to 52-21; ECF Nos. 53, 53-1 to 53-23.)
According to the Fourth Circuit, "typically, '[a] dismissal for lack of statutory standing is effectively the same as a dismissal for failure to state a claim.' " CGM, LLC v. BellSouth Telecomms., Inc. ,
Under ERISA's civil enforcement provision, "[a] civil action may be brought ... by a participant or beneficiary ... to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan."
Under ERISA, the term "participant" is defined as "any employee or former employee of an employer, or any member or former member of an employee organization, who is or may become eligible to receive a benefit of any type from an employee benefit plan which covers employees of such employer or members of such organization, or whose beneficiaries may be eligible to receive any such benefit."
Under ERISA, the term "beneficiary" is defined as "a person designated by a participant, or by the terms of an employee benefit plan, who is or may become entitled to a benefit thereunder."
See, e.g., Med. Univ. Hosp. Auth./Med. Ctr. of the Med. Univ. of S.C. v. Oceana Resorts, LLC , Civ. No. 2:11-cv-1522,
The benefit plan defines "MEMBER" as "[a]n employee or dependent , who is currently enrolled in the plan and for whom premium is paid." (E.g. , ECF No. 52-1 at 77.)
The benefit plan defines " provider " as "[a] hospital , nonhospital facility , doctor , or other provider , accredited, licensed or certified where required in the state of practice, performing within the scope of license or certification. All services performed must be within the scope of license or certification to be eligible for reimbursement." (E.g. , ECF No. 52-1 at 79.)
Because the Court concludes that Plaintiff has neither direct nor derivative standing to sue under ERISA, it need not evaluate Defendant's remaining arguments in support of its motion to dismiss. See Griffin v. Coca-Cola Enters., Inc. ,
Reference
- Full Case Name
- BOBBY P. KEARNEY, MD, PLLC v. BLUE CROSS AND BLUE SHIELD OF NORTH CAROLINA, an Independent Licensee of the Blue Cross Blue Shield Association
- Cited By
- 8 cases
- Status
- Published