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Montana SB44 and State Efforts to…Do What, Exactly?
By: Jon Jablon, Esq.

A few months ago, Montana passed SB44, which created a new part of the Montana Code Annotated (the MCA). The new provisions have been added because, according to the legislature’s statement of purpose, “in many cases the high charges assessed by out-of-network air ambulance services and limited insurer and health plan reimbursements have resulted in Montanans incurring excessive out-of-pocket expenses….” For once, I don’t disagree with a state law’s purpose. Unlike many other states’ laws, which justify themselves as correcting health plan coverage deficiencies, this law exists because of high provider charges, and the legislature acknowledged that, at least to some extent. The “limited insurer and health plan reimbursements” is a byproduct of high provider charges, rather than a separate problem; it’s a problem created by the medical provider who have gouged payers for decades.

To start, note that it is likely that ERISA will preempt this law as it relates to self-funded health plans governed solely by ERISA, since the primary purpose of this law is to determine reimbursement by a health plan to a medical provider. Courts have consistently interpreted ERISA as preempting state laws purporting to change the allocation of risk between the insurer and the insured, and this apparently does exactly that by dictating what the insurer must pay. Seems like a textbook candidate for preemption.

According to the “Hold Harmless” section of the law (MCA 33-2-2302), a health plan is required to tender payment to an air ambulance provider within 30 days of claim receipt based on either (i) billed charges, (ii) a negotiated rate with the provider, or (iii) the median amount the insurer or health plan would pay to an in-network air ambulance service for the services performed.

The law goes on to provide for dispute resolution, which applies after payment is made, and if a party disputes the other party’s contention of whether any further payment obligation exists. This is potentially troublesome because it does not say that the parties can engage in dispute resolution right off the bat if either party disputes the reimbursement allegedly due; this implies that payment must first be made, and then the parties can engage in dispute resolution. Needless to say, that’s not ideal for a health plan.

The dispute resolution provisions start out on a high note (the procedure outlined in the law “is to be used to determine the fair market price of the services”). Then there’s another very sensible provision (“[p]ayment of the fair market price calculated pursuant to 33-2-2305 constitutes payment in full of the claim”). Those factors include fees usually charged and accepted as payment in full by the provider and other providers, Medicare rates, the context of the flight, and crew qualifications. This is all looking good!

But then it takes a turn.

The very next provision, referring specifically to dispute resolution, says “[a] determination under this section is not binding on the insurer or health plan and the air ambulance service.”

I am dumbfounded. That’s as anticlimactic a statement as any law can contain. The legislature’s inclusion of that last bit undermines the entire provision; once you find out that it’s not binding, you can basically just stop reading and forget what you read. It’s like reading something purporting to be a “true story” and then at the end there’s a disclaimer saying “none of this actually happened.” Not good.

So, then, where do we stand regarding payment amounts due to out-of-network air ambulance providers in Montana based on this law? It’s hard to know. Payment is apparently required to be made within 30 days, and then it can be challenged (with non-binding dispute resolution…?) – but if a health plan is first required to tender payment based on either billed charges, a negotiated rate, or the median network rate accessed by the plan, then it seems that this law is going to do more harm than good.
I wonder if Montana’s penal code is non-binding, too?

The Irony of Equity – It’s Almost Never Fair
By: Chris Aguiar, Esq.

Self-funded benefit Plans are offered an exclusive equitable remedy.  Equity is really just a fancy word for “fair”, but most of the time – the outcomes in equitable claims aren’t really viewed as fair by anyone involved.  This week I handled a $3.5 million case for which the recovery was limited to $250,000.00.  I couldn’t help but think that no matter the outcome on this case, there is no way for anyone to feel like they got a fair share.

From the Plan’s perspective, It paid $3.5 million and even if It’s are able to recover the entire $250,000.00, it’s not fair that the party at fault for the accident is allowed to walk away without any loss except for those policy insurance limits, which to the insured only really means a premium increase for the next few years.  This sense of a lack of fairness is rooted in a very basic concept – that is, health insurance in a health care reform world is effectively unlimited while auto insurance minimums are governed by the states, with maximums decided by those who purchase the policies; they are really just looking to protect themselves from financial ruin, not those they may harm.

Of course, the Plan participant doesn’t feel like the outcome is fair, either.  This injured party was the son of a plan participant whose life was forever changed for the worse the day he found himself in the wrong place at the wrong time.  Certainly, after being resuscitated 4 times in the emergency room, he and his family are thankful he is still alive, but the stark reality that the responsible party doesn’t really have to suffer for the pain they caused that day, and that they may also lose out on any of the small pool of funds available because it may be taken completely by the Plan cannot be easy to swallow.

No matter what, someone leaves the table unhappy – but parties should to be sure they don’t throw good money after bad.  Doubling down on a bad situation only makes it worse.  If that same participant above gets a lawyer, for example, he likely gives away 1/3 of the $250,000.00, but hasn’t really changed his rights at all – so what was the point?  Benefits plans may have legal doctrine that limit their ability to push for more money – after all, ERISA requires plan fiduciaries to be prudent with Plan assets.  

I can’t stress the importance of having advisors who truly understand the rules of the game and, most importantly, that you trust.  Experienced, trusted advisors are in the best position to maximize the Plan’s recoveries as prudently as possible so that plans don’t end up spending valuable plan assets for nothing.  Equity isn’t always fair, but it is the law, and what’s the point of equity if it leaves you worse off than if you had done nothing at all?

Natural Disasters (Hurricanes Harvey and Irma) - Don’t Let Them Wreak Havoc on Your Health Plan

By: Kelly Dempsey, Esq.

The last few weeks have been difficult for several states and U.S. territories.  Hurricanes Harvey and Irma have caused significant flooding and damage.  In addition to the loss of power, many people are homeless and corporations/employers are without a place to conduct business.  Depending on the level of damage, it may take a long time for different areas of the country to rebound and rebuild.  Chances are that employee benefits, specifically the health plan, are the last thing on employers’ and employees’ minds, but there are some very important considerations.  So what do Hurricanes Harvey and Irma mean for employers, employer sponsored health plans, TPAs, and employees?  

Self-funded health plans are required to comply with various federal laws that carry different responsibilities including, but not limited to, ERISA, COBRA, FMLA, HIPAA, and the ACA.  These federal laws come with a wide array of notice requirements and time frames for processing claims and appeals and other requests for documents or information.  As such, the Department of Labor and the Department of Health and Human Services (collectively referred to as “the Departments”) have issued press releases and bulletins that provide general guidance and limit exposure to penalties.  These press releases were specifically issued after Hurricane Harvey; however, it’s likely that additional releases will be issued to address Hurricane Irma.  Below are links to important press releases; however, the following is one of the key summary statements:

The guiding principle for plans must be to act reasonably, prudently and in the interest of the workers and their families who rely on their health plans for their physical and economic well-being. Plan fiduciaries should make reasonable accommodations to prevent the loss of benefits in such cases and should take steps to minimize the possibility of individuals losing benefits because of a failure to comply with pre-established time-frames.

Health plans and their supporting vendors will likely need to review situations on a case by case basis to determine what is reasonable for each plan and employer.

If you’ve listened to any recent Phia Group webinars, presentations or podcasts, or read our blog or published articles, you already know we’ve been focusing on leaves of absence and gaps between handbooks and plan documents.  You’re probably thinking, “Yes, I know, so what’s your point?”  With all the damage to homes and job sites, it is possible employees may seek leaves of absence and/or employees will ask questions about existing leaves of absence and how the leave is impacted if an employer ceases operations.  While FMLA is generally not available for employees to use as time off to attend to personal matters such as cleaning up debris, flood damage, home repair, etc., FMLA may come into play if an employee or their family member suffers a serious health condition as a result of the hurricane.  For those employees that were already out on FMLA, if an employer ceases operations, the time operations are stopped would not count towards FMLA leave.  As always, FMLA and other leave situations should also be reviewed on a case by case basis.   

In summary, the Departments have issued guidance specifically related to Hurricane Harvey; however, we anticipate additional guidance associated with Irma as well.  The bottom line is that employers, health plans, and applicable vendors will need to act reasonably when administering the health plans (i.e., processing claims and appeals, issuing notices such as COBRA notices, etc.) and take into consideration the locations and entities that were impacted and allow grace periods or other relief as applicable.

Important Press Releases and Relevant Guidance:
- U.S. Department of Labor Issues Compliance Guidance For Employee Benefit Plans Impacted by Hurricane Harvey
- Secretary Acosta Joins Vice President Pence in Texas
- FAQs for Participants and Beneficiaries Following Hurricane Harvey
- Hurricane Harvey & HIPAA Bulletin: Limited Waiver of HIPAA Sanctions and Penalties During a Declared Emergency

Change is Good
By: Jen McCormick, Esq.

As we are closing in on the calendar year, Plan Administrators are starting to reflect on the past year.  In relation to self-funded health and benefit plans, they consider the laws and regulations that changed (or didn’t change) over the past year and how they might impact the plan.  Also, they consider claim occurrences – good and bad – that may impact benefit changes for the following plan year.  The most important question, however, when considering renewal changes is how to offer a valuable benefit plan to employees which takes advantage of as many cost containing opportunities as possible.
ERISA plans do have minimum standards as far as basic information which must be included within the documentation (i.e. benefits and eligibility, claims procedures, COBRA information, fiduciary information, etc).  As Plan Administrators, however, there is great flexibility to design a benefit program that captures the compliance information but also is tailored to the specific needs of an Employer.  Remember that ERISA does not mandate a specific format for how a benefit plan must be presented.
In light of the requirements, and notable flexibility, consider that change is good. Many entities specialize in the creation and administration of plan design documents, and happily wish to share the value of why certain provisions should be outlined or presented in particular fashion.  As a result, may it’s time to consider reviewing the benefit structure and organization to ensure that it’s organized in a fashion that truly meets the needs of participants. Consider reviewing the text to ensure it offers the best possible cost containing opportunities for participants.  A refresh of a document can be advantageous for the plan, and so remember to keep an open mind at renewal!

A Win for the Good Guys!
By: Chris Aguiar, Esq.

Subrogation added another case to the win column last week when the 5th Circuit ruled in favor of a benefit plan’s reimbursement rights even though the Plan only had an SPD, and that SPD referenced another, nonexistent document.  I know what you are thinking … “Wait a minute, Chris, most of my clients only have an SPD, so why should I care about this?”  The answer is because in 2011, the Supreme Court gave us a decision in Cigna v. Amara that muddied the waters on whether an SPD alone can be the governing document for an ERISA health benefit plan.  In short, the late Justice Antonin Scalia indicated that it couldn’t be, but that case was about pension benefits that were being altered and it included a plan that did in fact have two documents.  The truth is ERISA requires “a written instrument”; nowhere in the statute is that requirement defined to mean that multiple documents are required, but that didn’t stop Justice Scalia from writing in his opinion that a summary by definition implies that a more comprehensive document is available.   Many attorneys attempt to use that decision to argue that if a plan doesn’t have a “plan document” and only an SPD, it cannot enforce its rights.  In some areas of the country, where a plan’s subrogation rights are always under attack (e.g. the 9th Circuit), decisions like this cause problems.  Anytime the Supreme Court makes statements that may be subject to interpretation, a plan’s rights can be called into question until a court in that plan’s jurisdiction (or the Supreme Court itself) provides clarification.  The 5th Circuit gave us that clarification with this decision and it gives us another tool to fight the argument we contend with every day.

A Call for Defensive Legislation
By: Brady Bizarro, Esq.

On April 5th, the House of Representatives passed the Self-Insurance Protection Act (SIPA; H.R. 1304) by a vote of 400 to 16. This was the third iteration of this bill, originally introduced at the suggestion of the Self-Insurance Institute of America (“SIIA”). This legislation is very important for our industry because it blocks federal efforts to regulate small stop-loss plans as health insurance by excluding the plans from the federal definition of “health insurance coverage.” If you were struggling to think of a federal law which redefines stop-loss as health insurance, that is okay. There is no such federal law on the books. Indeed, there has been no legislative proposal at the federal level to redefine stop-loss insurance in this way. This was defensive legislation, designed to ensure that federal regulators do not try to redefine stop-loss insurance. State legislatures around the country should take notice of this approach before it’s too late.

At the state level, we have already seen numerous efforts (often successful) at redefining stop-loss insurance or placing restrictions on coverage. Why are states pushing this kind of legislation? One development that added fuel to the fire was the U.S. Department of Labor’s Technical Release on November 6, 2014. It expressed the opinion that states should not be concerned that stop-loss regulation restricting policies based on attachment points would be preempted by the Employee Retirement Income Security Act (“ERISA”). Since that time, we have seen efforts to restrict stop-loss coverage in California, the District of Columbia, Maryland, New York, New Mexico, Florida, Delaware, Washington, Connecticut, and Utah.

In states where restrictions have not been put in place, or where the restrictions are not severe, employers and insurers alike should be pushing for defensive legislation to reaffirm that stop-loss insurance is not health insurance.

Keep Hands, Arms, Legs, and Feet Inside the Ride at All Times and Remain Seated Until the Ride Comes to a Complete Stop
By: Kelly Dempsey, Esq.

The last 7 years have been a wild ride and it’s not quite over yet.  As noted in many other posts and articles, the rules will be changing under the new administration and in recent weeks we’ve seen a clearer picture of how the rules will be changing, but there are still more steps in the process before TPAs and employers can start making changes to their processes and health plans.  Many are focused on the modifications to the requirements to offer and/or have coverage (i.e., the employer mandate and individual mandate) and it’s no doubt these provisions have had a large impact on how employers offer coverage and what they offer, as well as the costs to employers, individuals, and insurers.

To counteract the rising costs of healthcare due to ACA and other factors, like high medical and drug costs, many in the self-funded industry have explored other options and learned how to expand and better utilize the flexibility and dynamics afforded to self-funded plans in the cost containment realm.  From telemedicine, to medical tourism, to other incentive programs, and exploring other provider payment options like direct primary care, employers with self-funded plans have more opportunities to explore cost containment options and implement the options that can help the plan and employer save money, while tailoring their health plans to the needs of their employees.  Some cost containment programs, however, have added additional complications for a variety of reasons.

The birth of new cost containment programs includes reviewing current rules and applying those rules as we know them to the health plans.  If these programs are offered outside of the self-funded health plan, do the programs themselves become stand-alone health plans?  If yes, what rules are applicable?  Can these new programs qualify as excepted benefits and be excluded from certain (or all) provisions of ERISA, HIPAA, ACA, and other federal laws?  Are these programs compatible with IRS rules related to HSA qualified high deductible health plans (HDHPs)?  Do the answers change if the programs are implemented within the self-funded health plan?  Unfortunately, in many cases, the rules are not clear.

We know the new administration has big plans for modifications to current rules and creation of new rules and guidelines.  In addition to the employer and individual mandates, another key change we’ve heard about repeatedly is the modification to HSA rules.  If the new administration is modifying certain HSA rules to encourage employers and individuals to utilize HSAs, will the administration and agencies issue clarifying rules that address these questions?  Sadly this is another unknown and we’re stuck in this holding pattern with more questions than answers.

In some ways it feels like we’re right back where we started back in 2010 – waiting to see what rules and changes actually make their way through the approval process.  For time being, we have to buckle up and hold on until the ride comes to a complete stop.  As such, until we have finalized new rules with effective dates and clear guidance, it’s best to keep things status quo and maintain compliance with the rules as we know them today until the rules are implemented, finalized, and effective.

Cornelius B. FAISON, Plaintiff–Appellee v. DONALSONVILLE HOSPITAL INC., Defendant–Appellant.

United States Court of Appeals,

Eleventh Circuit.

Cornelius B. FAISON, Plaintiff–Appellee,

No. 12–15400.

Aug. 22, 2013.

Appeal from the United States District Court For the Middle District of Georgia. D.C. Docket No. 1:11–cv–00010–WLS.
Jerry A. Lumley, Jerry A. Lumley, LLC, Macon, GA, for Plaintiff–Appellee.

John F. Wymer, III, Bryan Stillwagon, Paul Hastings LLP, Atlanta, GA, Sherry Akande Nielsen, Paul Hastings Janofsky & Walker, LLP, Charles C. Stewart, Jr., Stewart & Scheffield LLC, Donalsonville, GA, for Defendant–Appellant.

Before MARTIN and BLACK, Circuit Judges, and GOLDBERG,FN* Judge.

FN* Honorable Richard W. Goldberg, United States Court of International Trade Judge, sitting by designation.


*1 Cornelius Faison (Faison) sued Donalsonville Hospital, Inc. (the Hospital), pursuant to the Employee Retirement Income Security Act of 1974 (ERISA), to recover insurance benefits the Hospital had denied as excluded from coverage. After a bench trial on the papers, the district court granted Faison’s Motion for Entry of Judgment. After careful consideration of the record, and with the benefit of oral argument, we affirm.


The Hospital has an Employee Benefit Plan, which includes health insurance coverage (the Plan). The Hospital is the Plan Administrator. According to the Plan, in this capacity, the Hospital has “maximum legal discretionary authority to construe and interpret the terms and provisions of the Plan, to make determinations regarding issues which relate to eligibility for benefits.” Paragon Benefits, Inc. (Paragon) is a third-party administrator of the Plan. In this role, Paragon is responsible for receiving claims from covered individuals and making an initial claim determination.

When Paragon’s initial benefits decision is appealed, the Hospital, as fiduciary of the Plan, reviews the determination, without giving Paragon’s decision any deference. The Hospital’s Benefits Committee (Committee) makes the final determination on appeals. The members of the Committee are Herman Brookins, Charles Orrick, and James Moody.

The Plan includes a number of exclusions. As relevant to this case, the Plan excludes from coverage:

(19) Illegal acts. Charges for services received as a result of Injury or Sickness occurring directly or indirectly, as a result of a Serious Illegal Act, or a riot or public disturbance. For purposes of this exclusion, the term “Serious Illegal Act” shall mean any act or series of acts that, if prosecuted as a criminal offense, a sentence to a term of imprisonment in excess of one year could be imposed. It is not necessary that criminal charges be filed, or, if filed, that a conviction result, or that a sentence of imprisonment for a term in excess of one year be imposed for this exclusion to apply. Proof beyond a reasonable doubt is not required.

The Hospital funds the Plan from its own revenue, plus a modest contribution from the employees. The Hospital’s annual funding for benefits provided by the Plan is approximately $2,300,000.00. The funds are considered by Hospital management to be Hospital assets. The Hospital purchases reinsurance for claims exceeding $50,000.

On July 26, 2009, Faison sustained serious injuries after he crashed his motorcycle into a tree while eluding a Georgia State Patrol Officer. As a result of his accident, Faison was in the hospital for over a month and amassed over $480,000 in medical bills.

As a result of his conduct leading to the accident, Faison was charged with: (1) fleeing/attempting to elude; (2) speeding (120 plus); (3) failing to maintain lane; (4) driving with an expired tag; and (5) violating his permit. Considering each charge independently, none of the charges could result in a sentence to a term of imprisonment in excess of one year. See O.C.G.A. § 17–10–3(a)(1) (misdemeanors punishable by maximum 12 months); O.C.G.A. § 40–6–1 (unless otherwise specified, it is a misdemeanor to do any act forbidden in this chapter); O.C.G.A. §§ 40–2–8 (expired tag), 40–5–30 (permit), 40–6–48 (failure to maintain lane), 40–6–181 (speeding), 40–6–395 (fleeing). Faison pleaded guilty to each charge. He was sentenced to 12 months of probation on each charge, to be served consecutively.

*2 At this time, Faison was a plan participant of the Plan. As required by the Plan, Faison submitted his claim to Paragon. Paragon denied his request for coverage. Faison appealed the denial to the Hospital. The Hospital sent a letter to Faison on October 21, 2010, which explained that the Committee affirmed the denial of Faison’s claim, based on the Illegal Acts exclusion in the Plan.


The parties consented to have the district court hear their case as a trial on the papers pursuant to Federal Rule of Civil Procedure 52. In accordance with that rule, the district court issued an opinion explaining its findings of fact and conclusions of law separately.

“We review de novo a district court’s ruling affirming or reversing a plan administrator’s ERISA benefits decision, applying the same legal standards that governed the district court’s decision .” Blankenship v. Metro Life. Ins. Co., 644 F.3d 1350, 1354 (11th Cir.2011). “Review of the plan administrator’s denial of benefits is limited to the material available to the administrator at the time it made its decision.” Id. Blankenship sets forth a six-step test for reviewing a plan administrator’s benefits decision. Id. at 1355.

“We review for clear error factual findings made by a district court after a bench trial.” Morrissette–Brown v. Mobile Infirmary Med. Ctr., 506 F.3d 1317, 1319 (11th Cir.2007). “A factual finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Id. (quotation marks omitted).

After applying these legal standards and considering only those arguments that were actually made by the parties in the district court, see e.g., Depree v. Thomas, 946 F.2d 784, 793 (11th Cir.1991) (“[A]n issue not raised in the district court and raised for the first time in an appeal will not be considered by this court.”), we AFFIRM.


C.A.11 (Ga.),2013.
Faison v. Donalsonville Hosp., Inc.

Don’t get cute when ERISA documents are requested
By Keith R. McMurdy
The Employee Retirement Income Security Act generally requires that plan participants get copies of summary plan descriptions, plan documents and annual reports when requested. ERISA Section 104(b)(4) provides that “the administrator shall, upon written request of any participant or beneficiary, furnish a copy of the latest updated summary, plan description, and the latest annual report, any terminal report, the bargaining agreement, trust agreement, contract, or other instruments under which the plan is established or operated.”

Assignment of What, Exactly?
Jonathan A. Jablon, Esq.

If you’ve ever been disgusted with how much the BUCAs charge for health insurance premiums, you’re not alone. If you’ve ever wondered how the BUCAs determine their premiums and whether they’re limited, a case decided in May of this year helps shed some light on that subject. More relevant to ERISA, though, the case also presents some interesting information regarding the scope of an assignment of benefits as it relates to when a provider can sue a self-funded plan under ERISA.

A case in the United States district Court for the Southern District of Florida, MRI Scan Ctr., LLC v. Nat’l Imaging Associates, Inc., 13-60051-CIV, 2013 WL 1899689 (S.D. Fla. May 7, 2013), was brought by a provider to challenge the amount that Cigna charged for health insurance premiums. Insurance companies are required to charge premiums based on what is known as a Medical Loss Ratio, or MLR. In general, the higher an insurer’s MLR, the more it can charge for premiums. The MLR is the percent of premiums that the insurer actually spends paying claims; average MLRs, measured in percents, range from the mid-70s to low 80s.

Federal law requires that an insurer calculate its MLR based on “medical care and health care quality improvement,” and that it not include expenditures for administrative costs. In this case, the plaintiff, a provider, alleged that Cigna was inflating its MLR by about by including administrative charges in the amounts Cigna claimed to have paid for health care alone. The plaintiff sued under ERISA, alleging that Cigna had violated its fiduciary duties.

Unfortunately, whether Cigna was in the wrong – the “meat” of the case – was not decided by the court. The court got sidetracked when it was forced to determine whether the provider had standing – indeed, whether the provider was permitted – to bring the suit in the first place. The court did, in fact, determine that the plaintiff did not have standing to bring the suit, pursuant to certain provisions of ERISA. Specifically, ERISA § 502(a)(1) permits an ERISA claim to be brought “by a participant or beneficiary.” Federal courts have divined that “[h]ealthcare providers generally are not considered ‘beneficiaries’ or ‘participants’ under ERISA and thus lack standing to sue under the statute.” Borrero v. United Healthcare of New York, Inc., 610 F.3d 1296, 1301 (11th Cir. 2010).

A common misconception about assignments of benefits is that any effective assignment enables the receiver of the assignment to use all the rights otherwise guaranteed to plan participants. That is not the case, as the holding of this case plainly reminds us. Though both the issuance and revocation (or threat of revocation) of an assignment of benefits are strong tools for the Plan (see Medical University Hosp. Authority v. Oceana Resorts, LLC, 2012 WL 683938, [D.S.C. Mar. 2, 2012]), the court interpreted ERISA § 502 to stand for the proposition that an assignment of benefits does not, in fact, automatically grant a plaintiff standing to sue for ERISA relief unrelated to that which is explicitly outlined within the assignment of benefits. In other words, if a Plan participant’s right isn’t specifically assigned to the provider, the provider does not have that right.

According to the court, “Plaintiff is a provider of health care services and, therefore, is not a beneficiary or participant. … Accordingly, Plaintiff has standing to bring ERISA claims only if it received from its patients assignments broad enough to cover Plaintiff’s claims.” The court noted that the assignment of benefits within the Plan explicitly pertained to the provider’s right to billing and receiving payments, but failed to contain any provision sufficient to be interpreted to assign the right to sue for ERISA relief unrelated to payment of benefits, including the relief requested in this case.

The court’s conclusion in determining whether the plaintiff had standing to sue, then, is that ERISA § 502 does not automatically grant those in receipt of an assignment of benefits standing to sue under ERISA. Standing to sue for ERISA relief must be granted by the applicable assignment of benefits. Though the court did not address the topic of whether such standing must be explicitly stated, general trends of Plan interpretation seem to indicate that language sufficient to assign to the provider all rights applicable to the participant should be an acceptable way to accomplish just that.

The court granted deference to the arbitration provision agreed to by both parties, so hopefully the merits of this case will eventually be determined in that forum. Aside from any inequitable tactics that may be employed by Cigna to determine its premiums (and who knows how many other insurers), the implications of this case go beyond the substance of the case. The procedural dismissal of this case – that is, the court’s determination that the plaintiff did not have standing to sue – is itself a lesson for the self-funded community with regard to assignment of benefits.

Plan Sponsors may want to examine their respective Plan Documents to ensure that the rights of providers are limited under the Plan to billing and accepting payment. Providers suing Plans for ERISA relief is a dangerous concept, but the court has provided Plans a clear method to thwart it. The Phia Group has an experienced staff of expert plan-drafters who know ERISA inside and out. We can provide Plans with the language they need to prevent overbroad assignments of benefits and prevent providers from having rights under the Plan beyond what is needed for them to provide services under the Plan. Contact Andrew Milesky at or (781) 535-5664 for all your plan drafting, subrogation, and general consulting needs.