FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NAOMI J. AYLWARD, individually 

and as personal representative for the 

Estate of Philip Aylward,

Plaintiff-Appellant,

v.

SELECTHEALTH, INC., a Utah 

corporation, DBA SelectHealth,

Defendant-Appellee,

and

DOES, 1–25 inclusive; JEFF 

AYLWARD, an individual; TODD 

AYLWARD, an individual,

Defendants.

No. 20-55653

D.C. No.

3:18-cv-00494-

WQH- MDD

ORDER AND

AMENDED

OPINION

Appeal from the United States District Court

for the Southern District of California

William Q. Hayes, District Judge, Presiding

Argued and Submitted May 10, 2021

San Francisco, California

Filed April 13, 2022

Amended May 27, 2022
2 AYLWARD V. SELECTHEALTH

Before: J. Clifford Wallace and Daniel P. Collins, Circuit 

Judges, and Jed S. Rakoff,* District Judge.

Order;

Opinion by Judge Wallace

SUMMARY**

Medicare

The panel affirmed the district court’s summary 

judgment in favor of SelectHealth, Inc., a health insurance 

benefits company, in a case involving disputed benefits 

under a Medicare Advantage (“MA”) plan governed by Part 

C of Title XVIII of the Social Security Act (“SSA”), 

popularly known as the Medicare Act.

Naomi Aylward filed a lawsuit in state court, alleging 

state law claims arising from SelectHealth’s administration 

of her deceased husband’s MA plan and his death. Under 

Part C of the Medicare Act, beneficiaries can enroll in an 

MA plan and receive Medicare benefits through private MA 

organizations instead of the government. SelectHealth 

removed the action to federal court on the basis of diversity 

jurisdiction.

* The Honorable Jed S. Rakoff, United States District Judge for the 

Southern District of New York, sitting by designation.

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
AYLWARD V. SELECTHEALTH 3

The panel first considered whether plaintiff’s claims 

must be exhausted through the Medicare Act’s 

administrative review scheme. Section 205(h) of Title II of 

the SSA makes the judicial review provided in § 205(g) the 

exclusive means for reviewing administrative 

determinations under Title II. The panel held that Section 

1872 of Title XVIII of the SSA provides that § 205(h) is 

applicable to cases under the Medicare Act to the same 

extent as in cases under Title II. The panel concluded that 

enrollees in an MA plan must likewise first exhaust their 

administrative remedies before seeking judicial review of a 

claim for benefits.

The panel next considered whether plaintiff exhausted 

her administrative remedies. The panel concluded that 

plaintiff’s claims were not subject to the SSA’s exhaustion 

requirement because the dispute was not whether plaintiff’s 

husband received a favorable outcome from the internal 

benefits determination process but rather whether he should 

have received the services earlier. This is not an issue that 

has an administrative remedy under § 1852(g)(5). Claims 

outside the administrative process are not ones that can give 

rise to the sort of administrative decision that triggers 

applicability of § 205(h) and, in turn, § 205(g).

The panel next considered whether the Medicare Act 

preempted plaintiff’s state law claims. First, the panel held 

that plaintiff’s claim that SelectHealth breached a duty to 

process timely her husband’s October 7, 2016, appeal was 

expressly preempted. Because the standards established 

under Part C expressly prescribe the relevant duties of MA 

plans with respect to when expedited treatment is required 

and what timeframes apply, those standards supersede any 

state law duty that would impose obligations of MA plans on 

the same subject. Accordingly, to the extent plaintiff’s state 
4 AYLWARD V. SELECTHEALTH

law claims depend on the timeliness of SelectHealth’s 

processing of Mr. Aylward’s appeal, the panel held that the 

Medicare Act preempted those claims, whether or not they 

would be inconsistent with federal regulations. Second, the 

panel held that the Medicare Act also preempted plaintiff’s 

claims based on SelectHealth’s alleged breach of duty to 

investigate properly Mr. Aylward’s August 23, 2016, 

preauthorization request for consultation and testing at 

St. Joseph’s Hospital and Medical Center in Phoenix, 

Arizona. The panel held this second asserted duty was 

essentially identical to the first alleged duty: a duty to 

process the claim for benefits, and receive a favorable 

decision, more quickly. For the same reasons discussed for 

the October 7, 2016, appeal, the panel concluded that a state 

law claim based on a duty to process claims for benefits in a 

timely manner was preempted by the Part C regulations that 

set forth the timeframes for initial determinations and 

reconsideration decisions.

Because the Medicare Act’s express preemption 

provision, 42 U.S.C. §1395w-26(b)(3), barred plaintiff’s 

state law claims, the panel affirmed the district court’s 

summary judgment in favor of SelectHealth.

COUNSEL

Eric S. Rossman (argued) and Erica S. Phillips, Rossman 

Law Group PLLC, Boise, Idaho; Lenden F. Webb, Webb 

Law Group APC, Fresno, California; for Plaintiff-Appellant.

Alan C. Bradshaw (argued) and Christopher M. Glauser, 

Manning Curtis Bradshaw & Bednar PLLC, Salt Lake City, 

Utah, for Defendant-Appellee.
AYLWARD V. SELECTHEALTH 5

ORDER

The opinion in Aylward v. SelectHealth, Inc., 31 F.4th 

719 (9th Cir. 2022), is amended as follows:

On page 728, replace <Because the only claims that can 

avoid Part C’s administrative channeling are those that—as 

is the case here—were successfully resolved in favor of the 

claimant> with <Because Mr. Aylward’s claim was 

successfully resolved in his favor>.

The amended version is filed concurrently with this 

order.

The panel has unanimously voted to deny the petition for 

panel rehearing. Judge Collins voted to deny the petition for 

rehearing en banc, and Judges Wallace and Rakoff so 

recommend. The full court has been advised of the petition 

for rehearing and rehearing en banc, and no judge has 

requested a vote on whether to rehear the matter en banc. 

Fed. R. App. P. 35.

The petition for panel rehearing and the petition for 

rehearing en banc are DENIED. No further petitions for 

panel rehearing or rehearing en banc will be considered. See 

Gen. Order 5.3(a).
6 AYLWARD V. SELECTHEALTH

OPINION

WALLACE, Circuit Judge:

Naomi Aylward (Mrs. Aylward) filed a lawsuit in state 

court against SelectHealth, Inc. (SelectHealth), a health 

insurance benefits company, and asserted state law claims 

arising from SelectHealth’s administration of her deceased 

husband Philip Aylward’s (Mr. Aylward) Medicare 

Advantage plan and his death. Mrs. Aylward appeals from 

the district court’s summary judgment in favor of 

SelectHealth. We have jurisdiction pursuant to 8 U.S.C. 

§ 1291. We review de novo the district court’s summary 

judgment. JL Beverage Co., LLC v. Jim Beam Brands Co., 

828 F.3d 1098, 1104 (9th Cir. 2016). We review de novo 

whether a federal statute preempts state law claims. Do Sung 

Uhm v. Humana, Inc., 620 F.3d 1134, 1140 (9th Cir. 2010). 

Because the Medicare Act preempts Mrs. Aylward’s state 

law claims, we affirm.

I

A

This case involves benefits under a Medicare Advantage 

(MA) plan governed by Part C of Title XVIII of the Social 

Security Act (SSA), popularly known as the Medicare Act. 

The Medicare Act establishes a federally subsidized health 

insurance program for elderly and disabled persons 

administered by the Department of Health and Human 

Services (the Department). 42 U.S.C. § 1395c. The 

Secretary of the Department of Health and Human Services 

(the Secretary) delegates the administration of the Medicare 

Act to the Centers for Medicare and Medicaid Services 

(CMS), an agency housed within the Department. In 1997, 

Congress enacted Part C of the Act, creating the Medicare 
AYLWARD V. SELECTHEALTH 7

Advantage program. 42 U.S.C. §§ 1395w-21–29. Under 

Part C, beneficiaries can enroll in an MA plan and receive 

Medicare benefits through private MA organizations instead 

of the government. Id.

B

In August 2014, a doctor diagnosed Mr. Aylward “with 

pulmonary fibrosis, likely” idiopathic pulmonary fibrosis 

(IPF).1

 In the fall of 2015, Mr. Aylward enrolled in a 

SelectHealth Advantage insurance plan (the Plan) with an 

effective date of January 1, 2016. SelectHealth Advantage 

plans, including the Plan, are MA plans administered by 

SelectHealth. The Plan covered “medically necessary” care, 

and the member handbook states that “‘[m]edically 

necessary’ means that the services, supplies, or drugs are 

needed for the prevention, diagnosis, or treatment of your 

medical condition and meet accepted standards of medical 

practice.” With respect to organ transplants, the member 

handbook states that Mr. Aylward’s physician was required 

to obtain prior authorization from SelectHealth.

The member handbook outlines the process by which 

SelectHealth would issue “organization determinations” or 

coverage decisions regarding requests for Mr. Aylward’s 

medical care. The handbook states that for standard 

coverage decisions, SelectHealth would provide an 

organization determination within 14 days. For fast 

coverage decisions, SelectHealth would provide a 

determination within 72 hours; however, the handbook 

describes an exception for the fast coverage deadline and 

1 SelectHealth contends that a physician observed indications of IPF 

in Mr. Aylward as early as 2005. The date of Mr. Aylward’s IPF 

diagnosis does not affect our analysis.
8 AYLWARD V. SELECTHEALTH

states “if . . . some information that may benefit you is 

missing . . . , or if you need time to get information to 

[SelectHealth] for the review,” a fast determination can be 

extended “up to 14 more calendar days.” The handbook 

explains that Mr. Aylward would only receive a fast 

coverage decision if he were asking for coverage for medical 

care that he had not yet received and if SelectHealth’s use of 

the standard deadline “could cause serious harm to your 

health or hurt your ability to function.” Regarding the 

second requirement, the handbook states that if an enrollee’s 

physician informs SelectHealth that the enrollee’s health 

requires a fast coverage decision, SelectHealth “will 

automatically agree to give you a fast coverage decision.”

The handbook also outlines the process and timelines for 

filing appeals from SelectHealth organization 

determinations. For a standard appeal, SelectHealth must 

provide an answer within 30 days, and for a fast appeal or 

expedited reconsideration, it must answer within 72 hours. 

The handbook states that “[t]he requirements and procedures 

for getting a ‘fast appeal’ are the same as those for getting a 

‘fast coverage decision.’” As with fast coverage decisions, 

the handbook states that SelectHealth will automatically 

provide an expedited reconsideration if a physician states 

that the enrollee’s health requires it.

In January 2016, Mr. Aylward’s physician in Idaho, 

Dr. William Dittrich, referred him to the University of 

California at San Diego Health System (UCSD) for a lung 

transplant consultation relating to Mr. Aylward’s IPF 

diagnosis. On January 26, 2016, Dr. Dittrich sent a request 

for SelectHealth to approve coverage for the UCSD 

consultation, which SelectHealth approved on February 1, 

2016.
AYLWARD V. SELECTHEALTH 9

On February 10, 2016, Mr. Aylward met with 

Dr. Gordon Yung at UCSD for a lung transplant 

consultation. Dr. Yung diagnosed Mr. Aylward with IPF 

and recommended that he “be evaluated for lung 

transplantation, but given his age, this should be done as 

soon as possible.” On March 7, 2016, UCSD submitted a 

preauthorization request for an “evaluation/work-up” for a 

lung transplant, and on March 10, 2016, SelectHealth 

approved the request.

On August 22, 2016, UCSD requested SelectHealth’s 

preauthorization for a single lung transplant. While UCSD’s 

request was pending, Dr. Rajat Walia at St. Joseph’s 

Hospital and Medical Center (St. Joseph’s) in Phoenix, 

Arizona sent SelectHealth a request on August 23, 2016, to 

preauthorize a lung transplant consultation and testing. On 

August 26, 2016, Mr. Aylward met with Dr. Yung at UCSD, 

and they discussed the possibility of listing Mr. Aylward for 

a lung transplant not only at UCSD but also at one or more 

of three other facilities, including St. Joseph’s. On August 

30, 2016, SelectHealth approved UCSD’s preauthorization 

request for a single lung transplant.

On August 31, 2016, a SelectHealth case manager 

worked on St. Joseph’s preauthorization request, sent the 

case for physician review, and asked the reviewing 

physician, Dr. Peter Christensen, to advise whether dual 

listing was appropriate and if the requested services at St. 

Joseph’s would be duplicative of those approved at UCSD. 

On September 1, 2016, SelectHealth denied St. Joseph’s 

preauthorization request for consultation and testing and 

stated, “[a]dditional services out of network are not covered 

as the patient has already been approved for out[-]of[-

]network services and has had an evaluation and workup for 

lung transplant. Additional duplicat[e] services are not 
10 AYLWARD V. SELECTHEALTH

shown to be medically necessary and are not covered.” That 

day, the case manager notified Mr. Aylward of the decision, 

and Mr. Aylward stated that he would file an appeal.

On October 7, 2016, Mr. Aylward filed an appeal from 

SelectHealth’s September 1, 2016 denial, requesting 

SelectHealth’s preauthorization to be dual listed at UCSD 

and St. Joseph’s for a lung transplant, and requested a fast 

appeal. In his appeal, Mr. Aylward cited his age, the rapid 

progression of his IPF, the availability of lungs for 

transplant, and the higher number of lung transplants 

completed by St. Joseph’s than UCSD in 2016. That day, 

Dr. Krista Schonrock, SelectHealth’s medical director, 

determined that Mr. Aylward’s appeal did not warrant a fast 

appeal timeline and designated it as a standard appeal. She 

testified that she did so “because [Mr. Aylward] was already 

on a transplant list” at UCSD. On October 14, 2016, 

SelectHealth issued its appeal decision, which approved the 

consultation at St. Joseph’s but made “no exception” for 

testing because “repeating it would be a duplication.”

On October 17, 2016, SelectHealth notified St. Joseph’s 

of its appeal decision approving only a lung transplant 

consultation. SelectHealth’s call notes reflect that the 

St. Joseph’s representative stated that a consultation without 

additional testing would be “useless.” St. Joseph’s 

confirmed that the tests requested had not been previously 

done at UCSD and that St. Joseph’s had obtained all other 

test results from UCSD. On October 22, 2016, 

Dr. Schonrock approved “[a]ny testing that ha[d] not been 

previously done.” On October 24, 2016, Dr. Yung referred 

Mr. Aylward to St. Joseph’s for a lung transplant evaluation. 

On October 26, 2016, SelectHealth sent Mr. Aylward a letter 

notifying him that it approved testing for a lung transplant at 
AYLWARD V. SELECTHEALTH 11

St. Joseph’s. On October 28, 2016, Mr. Aylward died in San 

Diego.

In January 2018, Mrs. Aylward filed a complaint in state 

court against SelectHealth. In March 2018, SelectHealth 

removed the action to federal court on the basis of diversity 

jurisdiction. In November 2018, Mrs. Aylward filed an 

amended complaint, which asserted various state law claims 

arising from SelectHealth’s administration of the Plan and 

Mr. Aylward’s death, including for negligence, negligent 

misrepresentation, fraud, bad faith tort, failure to investigate 

a claim properly, breach of duty to inform the insured of 

rights, insurer’s breach of implied covenant of good faith and 

fair dealing, negligent infliction of emotional distress, and 

intentional infliction of emotional distress.

In June 2020, the district court granted summary 

judgment in favor of SelectHealth. The district court stated 

that Mrs. Aylward’s action was based on her claims that 

SelectHealth breached “its obligations to [Mr.] Aylward and 

[Mrs. Aylward] in the handling of [Mr.] Aylward’s claim for 

benefits under the Plan by failing to conduct any 

investigation into the request for preauthorization submitted 

by St. Joseph’s on August 23, 2016 and failing to” timely 

process Mr. Aylward’s October 7, 2016 appeal. Reasoning 

that Mrs. Aylward’s “claims of failure to investigate are 

‘inextricably intertwined’ to a benefits decision,” the district 

court held that her “claims arise under the Medicare Act and 

that 42 U.S.C. § 405(h) and (g) require exhaustion of 

administrative remedies before judicial review.” The district 

court also held that Mrs. Aylward’s claims are preempted by 

the Medicare Act’s preemption provision, 42 U.S.C. 

§ 1395w-26(b)(3), because “in order to adjudicate [her] 

claims, the [c]ourt would necessarily need to determine 

whether [Mr.] Aylward was entitled to the preauthorization 
12 AYLWARD V. SELECTHEALTH

request for consultation and evaluation at St. Joseph’s in the 

first place, a decision that is governed by detailed CMS 

standards.” The district court reasoned that “[b]eyond 

contending that [SelectHealth’s] benefit decision was 

wrong, [Mrs. Aylward] fails to allege any other action on 

[SelectHealth’s] part that would support [Mrs. Aylward’s] 

claims.”

II

We consider whether Mrs. Aylward’s claims must be 

exhausted through the Medicare Act’s administrative review 

scheme. “The issue of exhaustion bears on the district 

court’s jurisdiction, so we address [the exhaustion issue] 

first.” Uhm, 620 F.3d at 1140 (citation omitted).

A

Section 1852(g) of the SSA sets forth an administrative 

review scheme for resolving disputes over benefits 

determinations by MA organizations. See 42 U.S.C. 

§ 1395w-22(g). Before seeking judicial review in federal 

district court, enrollees must press their claims for benefits 

through all levels of administrative review. First, an enrollee 

must proceed through the MA organization’s internal 

benefits determination process, which entails an initial 

determination by the MA organization as to the enrollee’s 

entitlement to benefits, 42 U.S.C. § 1395w-22(g)(1), and 

reconsideration by the MA organization, 42 U.S.C. 

§ 1395w-22(g)(2). Next, adverse reconsideration decisions 

are reviewed by an outside, independent contractor. 

42 U.S.C. § 1395w-22(g)(4). If the enrollee, after pursuing 

these levels of review, is “dissatisfied by reason of the 

enrollee’s failure to receive any health service to which the 

enrollee believes the enrollee is entitled,” and “if the amount 

in controversy is $100 or more,” the enrollee may seek a 
AYLWARD V. SELECTHEALTH 13

hearing before an administrative law judge (ALJ) “to the 

same extent” as is provided in social security benefits and 

disability benefits cases under § 205(g) of Title II of the 

SSA. See 42 U.S.C. § 1395w-22(g)(5) (citing 42 U.S.C. 

§ 405(g)); 42 C.F.R. § 422.600. An enrollee who is 

dissatisfied with the ALJ’s decision may then seek review 

by the Medicare Appeals Council. 42 C.F.R. § 422.608. 

Finally, if the enrollee receives an adverse decision from the 

Medicare Appeals Council, and “[i]f the amount in 

controversy is $1,000 or more,” then the enrollee is “entitled 

to judicial review of the Secretary’s final decision” under the 

provisions of § 205(g) of the SSA. 42 U.S.C. § 1395w22(g)(5); 42 C.F.R. § 422.612.

The familiar requirement that claimants must exhaust 

their administrative remedies before seeking judicial review 

of social security or disability benefits determinations rests 

on § 205(h) of Title II of the SSA, which makes the judicial 

review provided in § 205(g) the exclusive means for 

reviewing administrative determinations under Title II. See

42 U.S.C. § 405(h); Weinberger v. Salfi, 422 U.S. 749, 757–

58 (1975). Section 1872 of Title XVIII of the SSA provides 

that § 205(h) is applicable to cases under the Medicare Act 

“to the same extent” as in cases under Title II, with the 

exception that the Secretary is substituted for any references 

to the Commissioner of Social Security. See 42 U.S.C. 

§ 1395ii. Therefore, enrollees in an MA plan must likewise 

first exhaust their administrative remedies before seeking 

judicial review of a claim for benefits.

B

We now consider whether Mrs. Aylward exhausted her 

administrative remedies. As discussed above, the 

administrative review process set forth in § 1852(g)(5) may 

be invoked by an enrollee only if, after pursuing fully the 
14 AYLWARD V. SELECTHEALTH

internal benefits determination process with the MA 

organization, there was a “failure to receive any health 

service to which the enrollee believes the enrollee is entitled 

and at no greater charge than the enrollee believes the 

enrollee is required to pay.” 42 U.S.C. § 1395w-22(g)(5). 

But critically here, when Mr. Aylward pursued that internal 

review process, SelectHealth approved coverage for the 

consultation and testing that Mr. Aylward sought.

Mr. Aylward appealed the initial denial of his request for a 

consultation and testing at St. Joseph’s. In its appeal 

decision on October 14, 2016, SelectHealth approved only a 

consultation at St. Joseph’s, but maintained that additional 

testing there would be duplicative of the tests conducted at 

UCSD. However, after SelectHealth subsequently verified 

that the tests had not been previously done at UCSD, on 

October 22, 2016, SelectHealth revised its appeal decision 

and approved the new tests at St. Joseph’s. On October 26, 

2016, SelectHealth sent Mr. Aylward a letter notifying him 

that his “appeal has been approved” and that SelectHealth 

granted authorization “to cover [his] requested consult and 

testing at St. Joseph’s Hospital.”

The upshot is that SelectHealth had not “failed” to grant 

a “health service to which the enrollee believe[d] the 

enrollee [wa]s entitled,” 42 U.S.C. § 1395w-22(g)(5), 

because SelectHealth ultimately approved the consultation 

and testing sought by Mr. Aylward. Under the plain terms 

of § 1852(g)(5), Mr. Aylward—or Mrs. Aylward, as his 

successor—could not have sought further administrative 

review of an initial denial that was then reversed in the 

internal review process. Thus, the dispute is not whether 

Mr. Aylward received a favorable outcome. Rather, 

Mrs. Aylward contends that Mr. Aylward should have 

received the services earlier—which is not an issue that has 

an administrative remedy under § 1852(g)(5).
AYLWARD V. SELECTHEALTH 15

If no administrative remedies are available, it follows 

that an enrollee cannot be subject to the exhaustion 

requirement. By its terms, the jurisdictional exclusivity of 

§ 205(h) rests on the premise that the enrollee has been 

channeled into the administrative review process and 

therefore may only invoke the statute’s prescribed methods 

for reviewing the resulting administrative decision. See

42 U.S.C. § 405(g). Claims outside that administrative 

process are not ones that can give rise to the sort of 

administrative decision that triggers applicability of § 205(h) 

and, in turn, § 205(g). Accordingly, Mrs. Aylward’s claims 

are not subject to the Act’s exhaustion requirement.

III

We turn next to the issue of whether the Medicare Act 

preempts Mrs. Aylward’s state law claims.

A

Part C of the Medicare Act contains an express 

preemption provision:

The standards established under this part 

shall supersede any State law or regulation 

(other than State licensing laws or State laws 

relating to plan solvency) with respect to MA 

plans which are offered by MA organizations 

under this part.

42 U.S.C. § 1395w-26(b)(3). Prior to Congress’s 

amendments to the Medicare Act in 2003, the preemption 

provision stated that federal standards would supersede state 

law and regulations with respect to MA plans “to the extent 

such law or regulation is inconsistent with such standards,” 

and it identified certain standards that were specifically 
16 AYLWARD V. SELECTHEALTH

superseded. 42 U.S.C. § 1395w-26(b)(3)(A) (2000) 

(emphasis added).

“Congress may displace state law through express 

preemption provisions.” Uhm, 620 F.3d at 1148 (citing 

Altria Grp., Inc. v. Good, 555 U.S. 70, 76 (2008)). While 

the language of the preemption provision “means that we 

need not go beyond that language to determine whether 

Congress intended [Part C] to pre-empt at least some state 

law, we must nonetheless identify the domain expressly preempted by that language.” Medtronic, Inc. v. Lohr, 518 U.S. 

470, 484 (1996) (internal quotation marks and citations 

omitted).

The plain language of the provision thus provides that, 

in order to determine whether a claim is preempted, we must 

identify whether there is a relevant “standard[] established 

under [Part C]” with preemptive effect.

B

Mrs. Aylward’s operative First Amended Complaint 

pleaded nine different causes of action based on a variety of 

tort theories, including bad faith handling of an insurance 

claim, fraud, negligence, and breach of fiduciary duty. The 

district court recognized, and Mrs. Aylward concedes, that 

her claims are ultimately premised on one or both of two 

distinct duties that SelectHealth allegedly breached: (1) a 

duty to process Mr. Aylward’s October 7, 2016 appeal in a 

timely manner; and (2) a duty to properly investigate 

Mr. Aylward’s August 23, 2016 preauthorization request. 

We address in turn whether Part C’s preemption provision 

preempts these bases for Mrs. Aylward’s claims.
AYLWARD V. SELECTHEALTH 17

1

Mrs. Aylward’s claim that SelectHealth breached a duty 

to process timely Mr. Aylward’s October 7, 2016 appeal is 

expressly preempted. Federal regulations implemented 

under Part C provide specific standards as to how MA 

organizations must process requests for expedited 

reconsiderations and the timelines for expedited and 

standard reconsiderations. See 42 C.F.R. §§ 422.584, 

422.590. Section 422.584 states that “[f]or a request made 

by an enrollee, the MA organization must provide an 

expedited reconsideration if it determines that applying the 

standard timeframe for reconsidering a determination could 

seriously jeopardize the life or health of the enrollee or the 

enrollee’s ability to regain maximum function,” 42 C.F.R. 

§ 422.584(c)(2)(i), and “[f]or a request made or supported 

by a physician, the MA organization must provide an 

expedited reconsideration if the physician indicates” as 

much, 42 C.F.R. § 422.584(c)(2)(ii).

As stated, under Part C’s preemption provision, these 

“standards . . . supersede any State law or regulation . . . with 

respect to MA plans.” See 42 U.S.C. § 1395w-26(b)(3). In 

Uhm, we reviewed the legislative history of the 2003 

amendments and recognized that “Congress intended to 

broaden the preemptive effects of the Medicare statutory 

regime” and “expand the preemption provision beyond those 

state laws and regulations inconsistent with the enumerated 

standards.” 620 F.3d at 1149–50. We concluded that 

generally applicable state consumer protection laws and 

common law claims can fall within the ambit of Part C’s 

preemption provision. Id. at 1152–53, 1155, 1156. 

Nevertheless, we analyzed the plaintiffs’ claims pursuant to 

the pre-2003 preemption provision and held that the state 

law consumer protection and state common law fraud claims 
18 AYLWARD V. SELECTHEALTH

at issue were inconsistent with the Medicare Act and CMS 

regulations. Id. at 1152, 1156. Explaining our choice of 

analysis in light of the 2003 amendments, we reasoned that 

it was “sufficient for our purposes that, at the very least, any 

state law or regulation falling within the specified categories 

and ‘inconsistent’ with a standard established under the Act 

remains preempted” and “[t]hat limited scope . . . [was] 

sufficient to decide” that case. Id. at 1150.

Unlike in Uhm, which involved state law claims that we 

concluded were “inconsistent” with the standards provided 

for in Part C and its implementing regulations, see id., here, 

we evaluate claims that at least partially parallel such 

standards. For example, Mrs. Aylward contends that 

SelectHealth violated the state law obligation to handle his 

claims “reasonably” in part because it denied expedited 

reconsideration under § 422.584 “with no apparent 

justification” for doing so. Other aspects of Mrs. Aylward’s 

claim, however, arguably seek to invoke state law in order 

to supplement the duty of expedition provided for in the 

federal standards. Therefore, we must decide whether Part 

C’s preemption provision preempts a state law cause of 

action that parallels, enforces, or supplements express 

standards established under Part C and its implementing 

regulation.

We conclude that it does. We have already held that 

Part C’s preemption provision applies to state law causes of 

action based on generally applicable laws, Uhm, 620 F.3d 

at 1152–53, 1156, and that conflict between the state law and 

the federal standard is unnecessary, id. at 1149. Thus, we 

have held that, in determining what qualifies as a state law 

“with respect to MA plans,” 42 U.S.C. § 1395w-26(b)(3), 

our preemption analysis must be based on the relevant state 

law duty sought to be imposed under the generally 
AYLWARD V. SELECTHEALTH 19

applicable law invoked by the plaintiff. There is no basis for 

concluding that a state law duty that parallels, enforces, or 

supplements an express federal MA standard on the subject 

is not one “with respect to MA plans.” Cf. Pilot Life Ins. Co. 

v. Dedeaux, 481 U.S. 41, 47–48 (1987) (explaining that state 

common law duties concerning claims-handling “relate[d] 

to” to ERISA plans for purposes of ERISA’s express 

preemption provision). Here, because the standards 

established under Part C expressly prescribe the relevant 

duties of MA plans with respect to when expedited treatment 

is required and what timeframes apply, those standards 

“supersede” any state law duty that would impose 

obligations on MA plans on that same subject. See 42 U.S.C. 

§ 1395w-26(b)(3).

Accordingly, to the extent Mrs. Aylward’s state law 

claims depend on the timeliness of SelectHealth’s 

processing of Mr. Aylward’s appeal, we hold that the Act 

preempts those claims, whether or not they would be 

inconsistent with federal regulations.

2

Finally, the Act also preempts Mrs. Aylward’s claims 

based on SelectHealth’s alleged breach of duty to investigate 

properly Mr. Aylward’s August 23, 2016 preauthorization 

request for consultation and testing at St. Joseph’s. While 

the claim takes several forms in Mrs. Aylward’s amended 

complaint, she characterizes it on appeal as a claim for the 

insurer’s breach of the implied covenant of good faith and 

fair dealing.

Because Mr. Aylward’s claim was successfully resolved 

in his favor during the MA plan’s internal review process, it 

follows that Mrs. Aylward’s argument that Mr. Aylward’s 

benefits claim was handled in bad faith is necessarily an 
20 AYLWARD V. SELECTHEALTH

argument that the claim should have been favorably resolved 

more quickly. SelectHealth ultimately approved coverage 

for the consultation and testing that Mr. Aylward sought in 

his preauthorization request. Thus, the gravamen of 

Mrs. Aylward’s complaint is best viewed as contending that, 

due to SelectHealth’s alleged mishandling, Mr. Aylward’s 

benefits claim took longer to resolve favorably than it should 

have. In other words, Mrs. Aylward’s second asserted duty 

is essentially identical to her first alleged duty: a duty to 

process the claim for benefits, and receive a favorable 

decision, more quickly.

The asserted duty to conduct an adequate investigation 

encompasses SelectHealth’s handling of Mr. Aylward’s 

August 23, 2016 preauthorization request. Part C’s 

implementing regulations, however, provide the timeframes 

for making such initial determinations. See 42 C.F.R. 

§ 422.568(b)(1) (stating that, as a general matter, initial 

determinations must be made “as expeditiously as the 

enrollee’s health condition requires, but no later than 

14 calendar days after the date the organization receives the 

request”). Therefore, for the same reasons as those 

discussed in reference to Mr. Aylward’s October 7, 2016 

appeal, we conclude that a state law claim based on a duty to 

process claims for benefits in a timely manner is preempted 

by the Part C regulations that set forth the timeframes for 

initial determinations and reconsideration decisions.

Accordingly, we hold that the Act preempts 

Mrs. Aylward’s claims premised on SelectHealth’s alleged 

breach of duty to properly investigate Mr. Aylward’s August 

23, 2016 preauthorization request.
AYLWARD V. SELECTHEALTH 21

IV

Because the Medicare Act’s express preemption 

provision, 42 U.S.C. § 1395w-26(b)(3), bars Mrs. Aylward’s 

state law claims, the district court’s summary judgment in 

favor of SelectHealth is AFFIRMED.