every day in america thanks factual scenario is a patient goes in for treatment for a medical provider and the st question always asked is what your insurance and the medical provider takes an insurance card and then whether in fact whether in fact there is coverage and you do that a number of ways sometimes they know the scope of the plan but more often than not they make a telephone call to the administrators of the p and in making that telephone call certain representations information advice is provided by the plan in ministry and when that information is provided that often determines precisely how the medical provider is going to act in this case the dish her court heard by expanding the br preemption to include independent relationships that have no relationship whatsoever with the orissa plans at issue come to how can you say no elation ship whatsoever when i put the that is a in my view that's a ten general relationship to the plan it doesn't it doesn't define the coverage is it doesn't define what the administrator will have to do it simply sets the reimbursement rate which is a ministerial task those reimbursement rates because because they're set forth in a plan doesn't do enough to establish the causal relationship between the point and the end of that and independent cla a reasonable amount for those services according to the terms of the plan doesn't that sweep in all aspects of the plan i don't think it done here are it's sweeps in certainly the reimbursement rates of the plan but it doesn't sweep in the administrative duties that are going to have that risk is meant to that the preemption express cramp is meant to protect against that is the entanglements between the plan and the state action and here the state action is a complaint seeking to recover from independent courses of action that are created by the plan administrator when there's greater can't make an agreement for instance and say well now we're going to make certain that and for those services according to the terms of the plan doesn't services according to the terms of the plan bring in questions of coverage of eligibility you i don't think it does i think that the agreement was in place that they would be covered for this procedure they specifically defined the procedures that would be that would be performed by this medical provider there was facial reanimation surgery with respect to  paying for but the reimbursement rates paid were significantly lower then what was agreed to everything that's the allegations in the complaint there has not been these were dismissed as i'm sure obviously you know on twelve b six motion so there was never any chance to to go through what precisely would would be the reimbursement rate and why it would not have entangled with others and they were unwise i think and said well there are so many references in the complaint to the plan it must deeply implicate the plan but it really does it your honor i believe that the plastic surgery center wasn't possible to assure the inferences that yes the are plans at issue here and there are provisions in the plan that will need to be looked at but that in and of itself those provisions simply are the reimbursement rates and the tomming fair and reasonable and customary are all part of approving a procedure as is reflected in the pre surgical letter for d w for example the gauge of approved approving a procedure entails multiple very specific approvals for i have different will not require any consideration of a plan or is it that it won't require a detailed plan and it how does either one of those square with the statutory express perhaps because the statutory expression is there has to be  objectives are several fold one is to protect beneficiaries and participants and preemption here doesn't do that because the p s a would be left without any remedy so as i follow it then you're not entanglements but as long as they're not excessive such could defeat the goals of arista preemption and the overall goals of the arista statute and then there is not preemption would you agree that if  t the common law claim required terminations what benefits were covered what particular c p t codes were covered for example that that would be sufficient time to trigger preemption articulations of it it seems like there is a very wide range of different tasks that have been financed for where that line is crossed st of all is it your position that the way we have discussed it in the context of complete preemption and should carryover to express preemption and of the many different articulations in the circuits including some of those cases that we century out yesterday to take a look at i would you suggest we formulate i think a complete preemption is a moment your honor because complete preemption trust doesn't require the court to ascertain the relationship between the plan and the complete preemption cases are relevant although not directly on point with express granted but the test one of the components of the test is the same so how do we go that or articulating where that line is it's not it's not me a reference that requires something reasonable amount based on usual and customary or based on some other standard are not entanglements those are simple ministerial inquiries that can be handled without deep reference to the plan so i think the deeper it gets into the plan by way of interpretation by way of a way of ministration that would that would make the entanglement significant such that it would be preempted i think one of the important points on these scenarios is that neither of these patients had any benefits under these plans they had the plans didn't cover out of network providers so the only way that this relationship could be forged is through an independent legal duty whether it be as in the cases that were provided to us they were negligent misrepresentation promis estoppel or in this case the main claim breach of contract because of the single case agreement those things exist totally separate from the plan they have no relationship at all to the plan because the plan simply covered these individuals for out of network benefits they had none the cases that have been relied on to some degree are cases where there are out of network benefits and then there are claims by the by the beneficiary to sue in the state while cause of it would be left without a remedy and just because there was an insertion into the contract that this was based on reimbursement rates pursuant to the plan but there's the case of d w there's nan could be done and that certainly doesn't advance the purpose of arista to protect beneficiaries physicians medical providers if they know that they they may not be able to get an assignment to precursor to the claim on behalf patients without being in network and having the their the coverage yaron t v and here there was an agreement to pay and to honor honor a separate legal duty and i there were no benefits paid not withstanding the representation that there would be payments that's not this case so i like the language in those cases as to the independent duties but i don't have a negligent misrepresentation case here perhaps it could be stretch out to say they negligent misrepresented that they would pay a certain amount but i think that would be i don't think that pleading would would really carry the day can we can we take the  existence of a contract a fair inference or that from the from the complaint given that the attachment to it with the notes of the phone call suggest that it is saying there is no single case agreement it won't negotiate that what you are i think that would be a factual question i think that there is there are those notes and i think they would show up there should be evident that is evidence of a meeting of the mind that there was a single case agreement notwithstanding their defendant friending claims there is no agreement or that they're in here that he didn't come to the exact time to such an agreement i think that those notes and  actual performance thereafter do suggest the existence of an agreement is there a difference between the highest in that work really that term and the term reasonable does one require a deeper  dive into the terms of the plan i think there is a difference between highest in that work rate and reasonable reasonable i think would imply that it was usual  customary in the area for physicians of that skill set whereas if it's the highest rate in the plan then the plan rates government so that the contract can be reached with  a term that the payment will be made on on the highest rates under the plan but similarly one dollar could be reached that it would be based on reasonable which i think as i said implies  to go sharing a single case agreement could make references to certain things in the plan then it could ensure that by that analysis it could ensure that every claim by a provider would be would be required but that's not that's not what prompted this arrangement they were told to do that to do the procedure you have the authorization to do it and yes there were some  and fifteen hour surgeries are not a simple broken leg sending a you know setting a bomb there are in cricket you see the numbers the numbers are incredible we're going to four hundred and ten thousand dollars surgery because they're don't know that in the practical reality of medical treatment that that is how these contracts get worked on and if we want to make the doctors lawyers so be it but i don't think that's the way these things work that it's almost impossible the doctor or his people would consider him to be quote unquote and in that work provider at that point i don't i don't think it is i mean there can be that the to the highest amount allowed by this point so if you want to put that label on it that they went in network on that and so yes because it's not a lot of preemption that's possible but but that doesn't extel leaves them with no remedy if in fact they're in network and they and they do certain procedures that are then denied by the  by the by the point administrator they don't have a cause of action because they can't bring it under as a plan administrator and there's an anti spam employers so i don't know that it's a distinction with a difference if you put them as an that work classify them as it network pursuant to a single case agreement or say it's a simple it's just a separate legal duty i think there are there are terms without a difference quite frankly is this a problem as a practical matter that arises from network providers who don't have them sign and i think a lot of the cases that from other jurisdictions talk about in network providers who were  that the problem does exist for in network providers but i think the problem is exacerbated for for not out of network prop providers they don't have the benefit of the plan they are being asked two lawsuits that were filed by a single provider that were consolidated on the appeal in both instances the provider is providing services to a member who is covered by numbers or governed by a invoke lawsuits the provider filed exclusively state law supreme court in this court has routinely held to be purposefully broad the district court found that what was being asked in these two lawsuits directly impacted the essential function of orissa which was claims processing and  not it's a very different situation the fact we're on a different context essential what was being done in both circumstances is the same the claim administrator is being asked to look to the plans to make a determination of what benefits or we may have  had before us and we sent you and our apologies to both counsel for though the late notice we sent you a number of cases from other circuits where they're wrestling with this issue in the context of provider is seeking reimbursement where looking to do something as simple as the damages calculation that the rates that are supposed to be paid for example they're concluding that that is sufficiently peripheral that under the supreme court's recent more recent case law argument in those few is an issue of mental illness or prison here that's not what's being alleged why does the kinds of action make a difference as to whether there there can exist a common law cause of action that's not preempted  a uniform statutory structure for claims to be processed not just to a beneficiary who get a benefit but to ensure that the system properly and the provider one of the payer will not have to worry about fifty different states having  different elements or standards for what a misrepresentation or an unjust enrichment or an implied impact contract might have there have to be some protections for the plan as well we don't we don't have free stress on appeal exchange for our consideration and you failed to do so and your honor pointed out very nicely the idea of what actually happened in the case and in this case it was not our knowledge but in fact the providers that indicated that  standalone contract implied in fact in this case but in the implied in fact contract and the unjust enrichment were taken centrally at the same level by the access medical case because in both cases because there was a misrepresentation and here that would be the case there was a misrepresentation of the idea is that there is a separate contract under the theory that nick can't control whether it has stated  accurately which is what has happened in the agreement how often it's going to get sued or someone's are simply unhappy with how much it's been paid and that's what the concern was if in the same string of cases there's wrong records if there is not based upon  misrepresentation you've opened up the floodgates of litigation whether it be characterized as among just a richmond theory or an implied in fact contract there's not a claim that aetna did something wrong in the misrepresentation it's then you just didn't process the claim properly you didn't find out what the payment benefits were properly and i want to challenge that and when you look at the construct of a reserve from the beginning of the legislature made a decision we are not going to allow providers to have standing their argument that it didn't process it properly or didn't process process of term according to the terms of the agreement is i understood them to be saying we had a deal when you're going to pass this now they really need to do is pass now you don't have to actually process it pursuant to the plan would actually interesting your honor and judge cross it alluded to earlier the idea that some claims were denied but significant in the complaint is what is not alleged is and some of the claims that we've been building were paid the distinctions very important because they're not saying that hadn't actually went back on what was promised what they're saying is what they proper or improper you have to go back to the plant to determine whether that was something that should have been overcome in terms of the plan or the it's not part of this preserve the patient so i think your your adversary indicated earlier that perhaps there would prove to be intact perhaps that as you get into the case of discovery there would be facts that implicate the plans and if so that's what they were new version to dismiss or perhaps summ of the complaint and the base of the complaint is referring back to what requires a plan considerations of coverage and policy terminations if the standard that's created by this court is alleged what you will and then you go and seek discovery because there might be something else that if they relied upon something that missed that please say that this is not based upon your representation that you would process a claim pursuant to the plan it's because you told discovery to proceed set the provider can find something that they might basically mind again defeats the idea that a risk is created not just for the beneficiaries but to provide some protections for the plans but they're not going to be spending half their time litigating someone that you've asked us to look at is to to address how those courts are addressing matters and the idea that there may be a stand alone misrepresentation based upon specific misrepresentation that maybe theoretically cognizable under those cases  create by reference to the plan before you become entangled versus a standalone agreement that may seem to mirror the plan and therefore be a while so to take it to its logical conclusion if you cut and paste the entirety of the plan into an agreement and said here's what we want you guys agree to it presumably that would that would be ok that doesn't require resort to the plan you have another contract right i actually disagree with that your honor i think that it does actually referenced talks of our coverage talks about how there is not network benefits or otherwise so we're going to say that there is so we're going to look at the plan to see what a network benefit would look like what the coverage is going to be for a network  test where it crosses the line i and other circuits have have been struggling with this and have multipart tasks or to play cas you know how you how would you suggest we are to skilling the task for determination to be covered for certain things and they really pursuant to the terms of the plan according to the pleading so in terms of what could could be the test ultimately be could be discussed in this case to say that it's going to be essential functions of administering a plan construing the plan for coverage in storing a term for coverage payment obligations i think paul squarely within that of course having to change anything the court wants to discuss other circumstances were it's not the provider actually pleading in the complaint of the promise was to pay me pursuant in accordance with the terms of the plan then i think that's a separate issue i think that the courts significant love happened it was a two part test but the state law claims address areas of exclusive federal concern such as the right to receive benefits under the terms of an aversive plan those one of the initial that's agreed to by at no how does that how does that affect the relationship among the the plan and the parties to the plan itself because it goes the interpretation of what the plan is going to be the claims ministry to task is to done and what judge draw you have indicated was if i wasn't in the context and where i am now with the memorial hospital case being off control in his long a circuit for so long i would and its progeny he would have had it that a state law claims address areas of exclusive federal concern which is their right to receive benefits on the terms of the resupply and that one element alone is what prompts express back and they were not trying to create and ensure that a rd party can do that and the reason is because there is a construct created by obligation in every arisa plan for administrative remedies and the member i in my case running you considered book the idea of a provision and whether there had been a waiver and what was or good was well they allowed the pay or allowed the provider to submit some  claims to be reprocessed to argue that there had been some anomalies created and what your honor found was allowing that to process doesn't run afoul of any and simon provision that may have ultimately preclude that and making the same argument that way to wait a minute i'm pretty sure there's an anomaly here let's pursue our former said ministry of remedies and address what about anomaly exists and what they should be reversed more compensation paid or what but isn't that just strictly as to whether a benefit is covered purses and then making reference right now to the case of blue cross and i'd set strict case where the skew here is not over the right of payment but over a set of requirements under a plan i believe in that case there was even arbitration provisions that were permitted specific administrative remedies provided for that provider through its participating provide contract with the pay or and so that that case i think is actually distinguishable because that was in the network provider addressing the rights that were permitted under a specific participating provider agreement which is not what we have ok well actually the same question as counsel and the fact that you've agreed to you enter into this contract to allow the surgeon to do surgery and you said yes i'll pay when that that moment would he be considered exists the only thing that's happening here is a rd parties coming in and saying as to that agreement between the two of you we're just going to give me some i'd be uncovered so i don't think that independently creates a separate contract has been approved at with a with a list of particular services and on the basis of that agreement the provider is then going forward to provide those services turning to act now for reimbursement  understanding you and i have something going on right it's in the member and the idea of a core of all of this is there is a benefit to the members because the member has benefits i may agree to pay for it to  to the provider but at the core of this entire system is the idea that at now is processing a claim whereby the the member is the beneficiary of benefits and that is going to be paid or not paid based upon the terms of the plan a phone call that prompted by the plan to consider what's in the plan and to provide the member with a forecast of what's in the plan is still with the member even though a rd party make you want to ask a particular circumstance where that this engage with that not at all the recourse is one of two things either at in the stops taking calls to allow caprice or or it continues to do what is permitted under the plan which is to give some indication of what's going on and in order to help facilitate based on what the plan and what the sponsor of the ultimate are the ones that determine what's going to be paid or not paid a plan sponsor aleck's compensation at this rate a cover that type of service or whatever it may be the  where there is no coverage of the expressed terms of the plan but a provider has relied on assurances that there is such covers coverage providers will be understandably reluctant to accept the risk of nonpayment to may require upfront payment by beneficiaries or oppose other inconveniences before treatment is offered this does not serve but rather directly defeats the purpose of congress  this system that it is arguing for here that we can make all kinds of assurances we can tell you that we're going to pay we're going to pay i use in network we're going to pay we're going to pay reasonable and customary and when we don't you're out of luck because you can't bring a crown to force an action and your common law claims are preempted and that system certainly doesn't advance the goals of so so that doesn't involve significant entanglement with the plan and in the negative misrepresentation cases it was actually found that those damages calculations don't create though the level of involvement is