This week’s notable decision is the Sixth Circuit’s most recent decision in Saginaw Chippewa Indian Tribe of Michigan v. Blue Cross Blue Shield of Michigan, No. 17-1932, __F’Appx__ (6th Cir. Aug. 30, 2018), one of many cases against BCBSM for charging its self-funded customers’ hidden administrative fees. The Tribe maintained two self-insured policies with BCBSM, one covered tribal members (“Member Policy”) and the other covered tribal employees (“Employee Policy”).
In 2014, the Sixth Circuit affirmed the district court’s ruling that Defendant BCBSM violated ERISA by increasing its customer’s hospital claims with hidden administrative surcharges. See Hi-Lex Controls, Inc. v. Blue Cross Blue Shield of Michigan, 751 F.3d 740 (6th Cir. 2014). In this case, in addition to the undisclosed administrative fees claim at issue in Hi-Lex, the Tribe also alleged that BCBSM violated its fiduciary duties under ERISA by failing to take advantage of federal regulations that permit Indian Tribes to pay reduced services provided by Medicare-participating hospitals and that BCBSM charged hidden fees as part of the company’s Physician Group Incentive Program (“PGIP”).
At the district court, the Tribe prevailed on the hidden-fees claim, but the court determined that ERISA did not apply to the Member Policy and that BCBSM did not breach any fiduciary duties under ERISA through its operation of PGIP or its failure to pay less for services by Medicare-participating hospitals. The Tribe appealed these claims in addition to the district court’s failure to award prejudgment interest on the hidden-fees claim.
On appeal, the Sixth Circuit determined that the Employee Policy and Member Policy do not constitute a single ERISA plan. The ERISA Regulations and the Sixth Circuit’s decision in Loren v. Blue Cross & Blue Shield of Michigan, 505 F.3d 598 (6th Cir. 2007) do not apply here because they establish that when an employer provides health care benefits to its employees, it’s presumed that the various benefits offered constitute a single ERISA plan. Here, the Tribe was not acting in the capacity of an employer when it offered tribal members benefits under the Member Policy. The court also determined that it does not appear that the Tribe intended to offer coverage under the Member Policy as one of two benefits options for employees. On the question of whether the Member Policy is an ERISA plan, the court says no. The Member Policy was not established or maintained with the intent of providing benefits to its employees.
The Sixth Circuit did agree with the Tribe that it adequately stated a claim that BCBSM violated its fiduciary duties under ERISA by causing the Tribe to overpay on claims that were eligible for a lower, Medicare-Like Rate (“MLR”). The court disagreed with the district court’s rationale that BCBSM’s fiduciary duty does not extend to obligations extrinsic to the text of ERISA and the plan. Here, the MLR regulations do not impose an additional duty on BCBSM, it only serves as the basis for the claim that Defendant did not act prudently or solely in the interest of the plan’s participants and beneficiaries. The court declined to express an opinion on the ultimate merits of the Tribe’s MLR claim.
On the PGIP claim, the court affirmed the district court because the record does not support that BCBSM secretly marked up the Tribe’s professional claims to cover the expenses of operation PGIP.
On the prejudgment interest claim, the court agreed with BCBSM that the Tribe forfeited any claim to prejudgment interest by declining to request the interest in its motion for partial summary judgment, indicating that it would ask for interest at a later point in time. The district court decided the summary judgment motions without making any decision on prejudgment interest. Rather than filing a postjudgment motion, the Tribe filed an appeal to the Sixth Circuit. Because the Tribe did not give the district court the opportunity to decide whether to award it prejudgment interest, the issue was not preserved for appeal.
Below is a summary of this past week’s notable ERISA decisions by subject matter and jurisdiction.
Saginaw Chippewa Indian Tribe of Mich. v. Blue Cross Blue Shield of Mich., No. 18-1170, __F.App’x__ (6th Cir. Aug. 30, 2018) (Before: Boggs, Batchelder, and Thapar, Circuit Judges). In a separate opinion, the court reversed the Tribe’s Medicare-Like Rates (“MLR”) claim. The district court awarded the Tribe only 25% of its requested fees since it prevailed on only 1 of 4 of its claims. In this opinion, the court reversed the district court’s decisions to exclude certain hours from the Tribe’s fee award and to reduce the amount of the fee-and-cost award insofar as those decisions were premised on the dismissal of the MLR claim.
Knowlton v. Anheuser-Busch Companies, LLC, No. 4:13-CV-210 SNLJ, 2018 WL 4052248 (E.D. Mo. Aug. 24, 2018) (Judge Stephen N. Limbaugh, Jr.). In this case, where the court previously granted judgment on the pleadings to Plaintiffs on their claim for enhanced retirement benefits, the court denied Class Counsel’s motion for fees based on a common fund due to ERISA’s anti-alienation provision. 29 U.S.C. § 1056(d)(1). The court will award fees under the fee-shifting statute but without any additional percentage-based fees taken from a common fund. The court also denied Class representative incentive payments at this time since it is premature until the full amount of damages has been determined and any incentive award is not part of the attorney fees calculation.
Derichs v. AT&T Servs., Inc., No. 16-2346-JWL, 2018 WL 4052151 (D. Kan. Aug. 24, 2018) (Judge John W. Lungstrum). The court previously remanded Plaintiff’s long term disability claim to the Plan to evaluate Plaintiff’s disability under an interpretation that would deem him disabled if he could not perform any of the essential functions of his job. Before the Plan decided the claim on remand, Plaintiff moved for attorneys’ fees. The “Court awards plaintiff attorney fees in the amount of $3,175.00, representing fees incurred relating to the particular issue of interpretation resolved by the Court. Plaintiff’s request for additional fees is denied without prejudice, which request may be renewed as appropriate when plaintiff’s claim for benefits has been finally resolved.”
Breach of Fiduciary Duty
Neufeld v. Cigna Health and Life Insurance Company, No. 3:17-CV-01693-WWE, 2018 WL 4158377 (D. Conn. Aug. 30, 2018) (Judge Warren W. Eginton). In this putative class action alleging ERISA and RICO violations for Cigna’s alleged common fraudulent and deceptive scheme to artificially inflate medical costs causing consumers to pay more than they should have paid for medically necessary products and services, the court granted in part and denied in part Cigna’s motion to dismiss the complaint. The court determined that Plaintiffs have plausibly alleged that Cigna is a fiduciary and that it exercised its discretion over the Plans in breach of its fiduciary duties. The court did not dismiss the ERISA fiduciary claims.
Acosta v. Ameriguard Sec. Servs., Inc., et al., No. CV JKB-15-3484, 2018 WL 4158349 (D. Md. Aug. 30, 2018) (Judge James K. Bredar). The court determined that the Secretary failed to establish that AmeriGuard was a fiduciary under ERISA, 29 U.S.C. § 1002(21)(A). The court was not persuaded by the fact that AmeriGuard was required by the CBA to contribute money on behalf of its employees to the various employee benefit plans. AmeriGuard did not have authority to appoint a trustee and the Plans were established without AmeriGuard’s involvement.
Saginaw Chippewa Indian Tribe of Michigan v. Blue Cross Blue Shield of Michigan, No. 17-1932, __F’Appx__ (6th Cir. Aug. 30, 2018) (Before: Boggs, Batchelder, and Thapar, Circuit Judges). See Notable Decision summary above.
Pfeifer v. Wawa, Inc., No. 16-497PD, (E.D. Pa August 31, 2018) (Judge Paul S. Diamond). In this lawsuit “challenging an amendment to Defendant Wawa, Inc.’s ESOP that eliminated [participants’] right to hold Wawa stock through age 68 and forced them to sell their shares at a purportedly unfair price,” the court finally approved a class action settlement which provides for a cash payment of $25 million—less Class Counsel’s fees of $5 million and costs of $80,123 and $25,000 incentive payments to the Class Representatives—to the Wawa, Inc. Employee Stock Ownership Plan.
Disability Benefit Claims
Shahgholi v. Aetna Inc. Long Term Disability Benefits Plan, No. 17 CIV. 963 (PAE), 2018 WL 4177934 (S.D.N.Y. Aug. 30, 2018) (Judge Paul A. Engelmayer). In this case where Plaintiff alleges that Aetna wrongfully denied her long term disability benefits “for subjective tinnitus and hearing loss,” the court determined that Aetna’s decision was not arbitrary and capricious. Aetna relied upon “independent” reviews done by Dr. Alan Lipkin (otolaryngologist) and Dr. Peter Mosbach (psychologist). The court found that Aetna did give proper credit to Plaintiff’s subjective complaints and that it was appropriate for Aetna to rely on the medical reviews even where Dr. Lipkin stated that tinnitus and sensorineural hearing loss “should not lead to a functional impairment” and that tinnitus “is not generally an issue that precludes all ability to work.”
Colvill v. Life Insurance Company of North America, No. 17-C-1290, 2018 WL 4078398 (E.D. Wis. Aug. 27, 2018) (Judge Lynn Adelman). On the parties’ motions to decide the applicable standard of review, the court determined that the Appointment of Claim Fiduciary Form, which purports to appoint LINA as the designated fiduciary for review of claims under the LTD policy, is a plan document that confers discretion on LINA. The court also determined that this grant of discretion was properly communicated in the Summary Plan Description. Thus, LINA’s denial of long term disability benefits will be subject to deferential review.
Christoff v. Unum Life Ins. Co. of Am., No. CV 17-3512 (DWF/KMM), 2018 WL 4110963 (D. Minn. Aug. 29, 2018) (Judge Donovan W. Frank). The court overruled Plaintiff’s objection to the Report and Recommendation and agreed “that the abuse-of-discretion standard should apply to this matter based on the clear language in the policy granting discretionary authority to Defendant.”
Kochanek v. Aetna Life Ins. Co., No. 4:16-CV-00324 BSM, 2018 WL 4088762 (E.D. Ark. Aug. 27, 2018) (Judge Brian S. Miller). The court determined that Aetna’s termination of short-term disability benefits was reasonable where, “[n]ot only did one of her own treating physicians clear her to return to work as early as July 3, 2014, the only medical opinion favorable to Kochanek’s claim lacked any supporting medical documentation and could not identify any specific restrictions or limitations on her daily activities.” The court rejected Plaintiff’s arguments and found that: (1) Aetna has full authority to determine entitlement to STD benefits; (2) it’s not Aetna’s burden to show she can perform her job and it can require periodic receipt of medical records showing continuing disability; (3) the plan documents support Aetna’s requirement for objective medical evidence; (4) there is no evidence in the record that Plaintiff complained to her doctors about her medications and Aetna did review her medications; (5) the fact that Aetna initially approved her claim does not mean it was obligated to continuing paying her, and (6) Aetna was not required to have her file evaluated by an independent doctor.
Sarro v. Bank of Am., No. 16-CV-5066(ENV)(ST), 2018 WL 4119208 (E.D.N.Y. Aug. 29, 2018) (Judge Eric N. Vitaliano). In this lawsuit brought by a pro se litigant over the alleged wrongful surrender of a group life insurance certificate issued under a group universal life plan as part of a group multiple employer welfare benefit plan and trust which insured his life for $2.4m, the court determined that his state law claims are preempted by ERISA. In addition, his ERISA claims for breach of fiduciary duty and for benefits are time-barred. The court denied Plaintiff’s motion to remand to state court and dismissed the case without leave to amend.
Exhaustion of Administrative Remedies
Germana v. Reliance Standard Life Ins. Co., No. 3:16-CV-01611 (VAB), 2018 WL 4096632 (D. Conn. Aug. 28, 2018) (Judge Victor A. Bolden). The court denied Defendant’s motion to dismiss on the basis of Plaintiff failing to exhaust administrative remedies by not appealing Reliance Standard’s claim denial. The court noted that the Plan itself, which provides for legal actions if filed within sixty days after the written proof of loss, suggests the propriety of the present lawsuit. The court determined that Reliance cannot rely on its denial letter’s statement that “failure to request a review of a denial may constitute a failure to exhaust.” In a supplemental filing, Reliance produced an Insurance Certificate which included an explanation of appeal rights but it applies to claims on or after April 1, 2018, when this lawsuit was already pending. The court found that it “would benefit from a fuller factual record to determine what notice Plaintiffs were given of an appeals provision, if any, and if they could have ‘reasonably interpret[ed] the plan terms not to require exhaustion.’”
Cannon v. Crown Cork & Seal Co., Inc., No. 18-3280, __F.App’x__, 2018 WL 4090885 (6th Cir. Aug. 28, 2018) (BEFORE: SILER, MOORE, and ROGERS, Circuit Judges). The court affirmed the district court’s dismissal of Plaintiff’s claims on the grounds that he was required to exhaust his administrative remedies before filing suit. Plaintiff argued that his failure to exhaust administrative remedies is excused on grounds of futility. The court found that the district court was correct in determining that this exception did not apply here. “Cannon’s only reason for why an administrative appeal would have been futile is the fact that the company’s frontline benefits administrator had determined that Cannon was required to apply for benefits before March 23, 2013. This is clearly not enough to show that any appeal of that decision would have been pointless, in the sense that the outcome would be predetermined without regard to any argument that Cannon might offer.” Defendant did not waive the exhaustion requirement by allowing Plaintiff to submit a tardy application (after he filed his lawsuit), and ultimately awarding him benefits.
Applegate v. Liberty Life Assurance Company of Boston, No. 217CV130FTM99MRM, 2018 WL 4103557 (M.D. Fla. Aug. 29, 2018) (Judge Sheri Polster Chappell). The court determined that Plaintiff did not exhaust his administrative remedies in appealing his long term disability claim denial. On the due date of the appeal, Plaintiff’s attorney faxed in a letter stating “ENCLOSED: Letter requesting an additional 10 days to submit evidence from Richard Hood, M.D., in support of the appeal.” Liberty Life did not grant the extension or consider the letter when it was finally submitted. The Magistrate Judge determined, and the court agreed, that this letter stated a future intention to appeal and at the time of the deadline “Liberty Life had no actual request for a review or an appeal from the Plaintiff, and Liberty Life had nothing more to consider on review beyond what it had already reviewed.”
Medical Benefit Claims
Weinreb v. Xerox Bus. Servs., LLC Health & Welfare Plan, et al., No. 16 CIV. 6823 (DAB), 2018 WL 4177933 (S.D.N.Y. Aug. 29, 2018) (Judge Deborah A. Batts). The court granted Defendants’ motion to dismiss Plaintiffs’ Second Amended Complaint alleging violations of ERISA, Title VII and the Pregnancy Discrimination Act, the Equal Pay Act, and the ACA for refusing to cover a prescription for fentanyl. With respect to the ERISA claim, the court found that Caremark’s decision to deny coverage for off-label fentanyl use was not arbitrary and capricious since the administrator applied the plain letter of the Plan’s clinical guidelines and Summary Plan Description, which only provide benefits for fentanyl to treat cancer-related pain, also known as FDA-approved, “on-label” use. Plaintiff does not have cancer.
Magnanini v. Aetna Life Insurance Company, et al., No. CV 18-2758 (KM), 2018 WL 4110942 (D.N.J. Aug. 28, 2018) (Judge Kevin McNulty). In this dispute by plan participants against their medical insurer for reneging on a promise to pay for the surgical correction of their daughter’s bone condition that resulted in one arm being three inches shorter than the other, the court denied the motion to dismiss on the basis of failure to exhaust administrative remedies. “At least in the context of the allegations of this Complaint, that is a fact-bound inquiry, requiring a discretionary determination by the Court.” The court dismissed their common law fraud claim as being completely preempted by ERISA.
Sandy Jo H. v. Cigna Behavioral Health, & The Intervention Inc. Medical Benefit Plan, No. 2:17-CV-00110-TC, 2018 WL 4082275 (D. Utah Aug. 27, 2018) (Judge Tena Campbell). The court granted summary judgment to Cigna, finding that its determination to deny residential treatment for Plaintiff’s children’s behavioral problems was based on a reasonable determination that the treatment for each child was not medically necessary.
Pension Benefit Claims
IN RE: JIE XIAO Debtor RONALD I. CHORCHES, TRUSTEE Movant v. JIE XIAO Respondent, No. 13-51186 (JJT), 2018 WL 4054765 (Bankr. D. Conn. Aug. 22, 2018) (Judge James J. Tancredi). The court sustained the Trustee’s objection and held that the funds under the LXEng Pension Plan, in the amount of $412,533.40, plus any interest or dividend accruals, are not exempted from the Debtor’s bankruptcy estate. The Plan was not in substantial compliance with the IRC because it violated the permanency requirement, the minimum participation requirements, and the nondiscrimination and exclusive benefit requirement. It was also not operated in accordance with its terms.
Sanzone, et al. v. Mercy Health, et al., No. 4:16 CV 923 CDP, 2018 WL 4071897 (E.D. Mo. Aug. 27, 2018) (Judge Catherine D. Perry). Plaintiffs brought ERISA claims against fiduciaries of the pension plan and argued that the plan does not qualify for ERISA’s “church plan” exemption because is it not maintained by an organization whose principal purpose is providing benefits for employees of a church.” The court determined that the pension plan is an ERISA-exempt church plan because the Benefits Committee is the entity that actually “maintains” the plan, it is an organization under § 1002(33)(C)(i), and Mercy Health and the Benefits Committee are controlled by or associated with a church. The court also determined that Plaintiffs lack standing to bring their claim that ERISA’s “church plan” exemption as applied to the Plan violates the Establishment Clause of the First Amendment.
Pleading Issues & Procedure
Cup v. Ampco Pittsburgh Corp., No. 17-2349, __F.3d__, 2018 WL 4101049 (3d Cir. Aug. 29, 2018) (Before: SMITH, Chief Judge, HARDIMAN, and RESTREPO, Circuit Judges). The court reversed and remanded the district court’s decision to compel arbitration of this dispute over retiree medical benefits because these benefits are not subject to the CBA. “As the Company correctly points out, ‘there is no provision in the CBA regarding retiree medical benefits,’ and the MOA does not provide for arbitration. Nor did the CBA include retirees in its definition of ‘employees’ or incorporate the MOA’s provisions regarding retiree health benefits.” (internal citations omitted).
University Spine Center v. Cigna Health and Life Insurance Company, No. CV 17-13596 (KM), 2018 WL 4144684 (D.N.J. Aug. 29, 2018) (Judge Kevin McNulty). In this provider action, the court dismissed the Complaint under Rule 8 because it “does not meet Twombly/Iqbal standards. University all but admits that it has filed a boilerplate complaint against the Claims Administrator in order to find out if it has been underpaid under the terms of the Plan, effectively shifting its Rule 8 pleading burden to the defendant. That approach, however convenient for a plaintiff, does not comport with the requirement that a complaint state facts permitting a plausible ‘inference that the defendant is liable for the misconduct alleged.’”
Bay Area Painters & Tapers Pension Trust Fund v. J&C Fuentes Painting & Decorating Co. Inc., No. 18-CV-04118-LB, 2018 WL 4108069 (N.D. Cal. Aug. 29, 2018) (Magistrate Judge Laurel Beeler). In this case, involving nonpayment of withdrawal liability, Plaintiffs made several unsuccessful attempts to effect service of the complaint and summons on Defendant. The court granted Plaintiffs leave to serve the defendants by service upon the Secretary of State of California. The court also directed Plaintiffs to again make service by email, using firstname.lastname@example.org.
K.H.B. by & through his father, K.D.B., individually, & on behalf of similarly situated individuals v. Unitedhealthcare Insurance Company, No. C 18-04175 WHA, 2018 WL 4053457 (N.D. Cal. Aug. 24, 2018) (Judge William Alsup). In this case challenging the denial of coverage for a Utah wilderness program for Plaintiff with severe mental health and substance abuse conditions, who was a minor at the time of treatment, the court granted Plaintiff’s motion to proceed under a pseudonym of his initials but his father must use his full first name and an initial for his last name. Pursuant to the local rules regarding filing documents under seal, Plaintiff must obtain a court order each time he seeks to redact personal information going forward.
Univ. Spine Ctr. v. United Healthcare, No. CV178575ESJAD, 2018 WL 4089061 (D.N.J. Aug. 27, 2018) (Judge Esther Salas). “[T]he Court has reviewed the anti-assignment provision and finds it to be clear and unambiguous, and thus valid and enforceable. As already noted, the anti-assignment provision does not allow assignment of benefits without Defendant’s consent. Plaintiff does not allege that Defendant gave such consent. Accordingly, the Patient’s assignment of rights or benefits to Plaintiff is void. In the absence of a valid assignment from the Patient, Plaintiff lacks standing under ERISA to pursue this action.” (internal citation omitted).
Griffin v. Aetna Health Inc., No. 17-13113, __F.App’x__, 2018 WL 4043465 (11th Cir. Aug. 24, 2018) (Before TJOFLAT and JORDAN, Circuit Judges, and HINKLE,* District Judge). Plaintiff appealed the district court’s dismissal of Plaintiff’s statutory penalties claim against Defendants on the basis that it was brought outside of the statute of limitations. The Eleventh Circuit affirmed on a different basis. After her earlier lawsuit was dismissed on the basis that the patients did not assign her the right to sue for statutory penalties, Plaintiff obtained a second assignment from each patient explicitly conferring that right. The court did not reach the issue of whether a person could retroactively assign rights against a third person. “The critical question is whether Coventry violated the statute by denying Dr. Griffin’s request for the summary plan description. The answer is no. The explanation is this. When Dr. Griffin requested the summary plan description, she had no right to it. The district court settled this issue in the earlier lawsuit, and Dr. Griffin did not appeal. She does not challenge that ruling in this case. The patients had a right to the document at the time of Dr. Griffin’s request, but the patients did not request the document.” The court also declined to decide whether the limitations period for an ERISA claim for statutory penalties in Georgia is one year, six years, or twenty years.
University Spine Center v. Aetna, Inc., No. CV177759ESSCM, 2018 WL 4089063 (D.N.J. Aug. 27, 2018) (Judge Esther Salas). Defendant moved to dismiss Count Two of Plaintiff’s Complaint on the basis that the breach of fiduciary duty claim is duplicative of its ERISA claim for allegedly unpaid benefits. “The Court agrees with Plaintiff, and with other courts in this District, that dismissal of an ERISA-breach-of-fiduciary-duty claim on this basis is not appropriate at this early procedural stage.” The court denied the motion without prejudice. Defendant may renew the challenge on summary judgment.
Chavis v. Plumbers & Steamfitters Local 486 Pension Plan, No. CV ELH-17-2729, 2018 WL 4052182 (D. Md. Aug. 23, 2018) (Judge Ellen Lipton Hollander). Where Plaintiffs seek to bar each defendant from ever acting as a fiduciary of any ERISA-covered plan, the court denied Defendants’ motion to dismiss the claims under § 502(a)(2) because removal of a fiduciary is a form of relief that plaintiffs may seek. The court did dismiss Plaintiffs’ § 502(a)(3) claim because it is duplicative of the § 502(a)(1)(B) and § 502(a)(2) claim. “In my view, it does not appear that Amara has abrogated the precedent set forth by the Supreme Court in Varity, and followed by the Fourth Circuit in Korotynska.”
Christoff v. Unum Life Ins. Co. of Am., No. CV 17-3512 (DWF/KMM), 2018 WL 4110963 (D. Minn. Aug. 29, 2018) (Judge Donovan W. Frank). In this dispute over disability benefits, “The Court concludes that Amara, Silva, and Jones plainly foreclose Defendant’s Motion for Judgment on the Pleadings. Plaintiff’s claims not only arise under distinct legal theories—improper denial of benefits under the terms of the plan and breach of fiduciary duty—but also seek distinct relief. Specifically, while Count I of Plaintiff’s complaint seeks benefits due under the Plan, Count II seeks separate ‘make-whole’ remedies (attorney fees and medical insurance costs) alleged to arise from Defendant’s failure to fulfill its fiduciary obligations to Plaintiff.”
Statute of Limitations
Chavis v. Plumbers & Steamfitters Local 486 Pension Plan, No. CV ELH-17-2729, 2018 WL 4052182 (D. Md. Aug. 23, 2018) (Judge Ellen Lipton Hollander). In this suit challenging the suspension of retirement benefits, the court “cannot conclude as a matter of law that plaintiffs had actual knowledge of an alleged fiduciary breach as of March 5, 2013. Therefore, at this juncture, the applicable statute for plaintiffs’ claim is six years after the date of the last action which constituted a part of the breach or violation. On September 28, 2012, plaintiffs’ benefits were first suspended. On the basis of the Complaint, this claim appears to have been timely filed.” (internal quotations and citations omitted). In addition, the court found that the claim for benefits asserted under Section 502(a)(1)(B) is timely because it was filed within three years of Plaintiffs’ final appeal denials.