I N T H E



# Indiana Supreme Court

Supreme Court Case No. 20S

- PL

- 302 

## FMS Nephrology Partners North Central Indiana

Dialysis Centers, LLC,

Appellant ,



### – v
– 

## Meritain Health, Inc., et al. ,

Appellees

.

Argued : October 10, 2019 | Decided: May 11, 2020 App eal from th e St. J oseph S uperior Co urt

No. 71D07-1605-P L -194 The Honorable Ste ven L . Hostetler, Judge On P etition to Transfer f rom th e Indiana Court of Appeals

Case N o. 18A- PL -1349

Opinion by Justice Slaughter Chief Justice Rush and Justices Massa and Goff concur.

Justice David concurs in result.Indiana Suprem e Court | Ca se No. 20S

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### Slaughter, Justice.

T he Employee Retirement Income Security Act of 1974 establishe s minimum federal standards governing employee

- benefit plans

. Under ERISA , the responsibility for regulatin g this system of benefit plans is exclusively a federal concern. To further th e goal of uniform federal standards , ERISA contains two preemption provisions. The se provisions’ preemptive effect on state laws is far

- reaching but not absolute. Some state laws

— and hence the claims arising under such laws

— survive ERISA preemption, such as those not requir ing interpretation of benefit

- plan documents. A claim withstands preemption to the extent its validity turns not on the meaning of the plan documents but o n a separate legal duty independent of the plan

. Here, a health

- care provider sued defendant health

- insurance plans , which are governed by ERISA, alleging they failed to pay agreed reimbursement rates for covered services under the ir plans. On this record, we hold that the trial court erred by enter ing summary judgment for the defendant plans based on ERISA preemption

. A key factual dispute exists concerning a central issue in this case

. Contrary to the defendants’ arguments, t he designated summary

- judgment evidence does not establish either that the provider’s claims were deni ed coverage under the plans or that the provider’s claims necessitate interpreting the plan do cuments

. W e grant transfer, vacate the entry of summary judgment for the defendant s , and remand with instructions

. 

## Background Facts and Procedur e
Third

- party networks are common in the health

- care industry

. The se networks serve as middlem e n that connect patients with health

- care providers by enter ing separate, individual contracts with both providers and employee

- health plans

. The plans receive access to a network of certified providers that have agreed to be reimbursed at negotiated rates discounted from the provider’s full sticker price

. A nd providers within these network s receiv e the certainty and predictability of fixed rates with prompt reimbursement

.Indiana Suprem e Court | Ca se No. 20S

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- 302 | May 11, 2020 Page 3 of 19 Plaintiff, FMS Nephrology Partn ers North Central Indiana Dialysis Centers, LLC, is a health

- care provider

. It owns and operates facilities in Indiana that provide dialysis treatments to patients suffering from end

stage renal disease , and it participates in third

- party networks. Over the years , F MS has contracted with two such networks , Community Health Alliance and Select Health Network

. Defendants University of N otre Dame and its affiliated employee health

- insurance plan s have contracted with both health networks

. Defendants Beacon Health and its affiliated employee health

- insurance plans have contracted only with Community Health Alliance.
To handle various claims

- administration functions for the plans, both the Notre Dame and Beacon Health plans engaged Defendant Meritain Health as their t hird

- p arty a dministrator. In that capacity, Meritain process es the claims a health

- care provider submit s to the Notre Dame and Beacon Health plans

. Meritain then issue s an “Explanation o f Benefits” for each claim

. The EOB memorialize s information about the claim , including the date of service, the total amount billed, and whether the claim is covered under the plan

. Th is coverage determination is reflected in an EOB’s various columns:

• “Provider Discount”,

• “Ineligible Amount”,

• “Pymt Made By Plan”,

• “Patient Responsibility”, and

• “Note s ”.
O nce Meritain determine s that a claim is covered under the applicable plan, the provider agree s to accept, and Notre Dame and Beacon Health agree to pay, the discounted rates for that provider’s services as reflected in the network agreements

. Of relevance here, seven patients received dialysis

- related treatments from FMS over a four

- year period : five patients were covered under Notre Dame’s plans and two under Beacon Health’s plans. As administrator, Meritain issue d EOBs for the claim s FMS submitted

. According to FMS, t he EOBs show Meritain’s coverage determinations and the agreed reimbursement payable to FMS for services rendered. FMS alleges thatIndiana Suprem e Court | Ca se No. 20S

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s ome line items in the EOBs reflect that it received the negotiated rate for its claims , while o the r line items show the claims were subject to a one
hundred

- percent “Provider D iscount”

. According to FMS, some of the se amounts reflect claims for covered services for which FMS received an amount less than the agreed rate s
. FMS thus sued Meritain, Notre Dame, and Beacon Health, alleging , a mong other things, breaches of the C ommunity Health Alliance and Select Health Net work a greements. FMS also sued in the alternative for implied contract and promissory estoppel. Notre Dame and Beacon Health answered that FMS’s claims were foreclosed under principles of both “complete” and “conflic t” ERISA preemption. Early in discovery, FMS moved for summary judgment on its claim that Notre Dame and Beacon Health breached the C ommunity Health Alliance n etwork
a greement

. Notre Dame and Beacon Health opposed this motion a nd
cross
- moved for summary judgment , again arguing ERISA pr eempt ion. These defendants also argued lack of contractual privity between FMS and themselves.
The trial court granted the defendants’ motions and entered partial summary judgment in their favor and against FMS, concluding that FMS’s claims were preempted under ERISA’s conflict

- p reemption provision, 29 U.S.C. § 1144(a). The court believed that resolving payment disputes under the network contracts would require it to interpret the plan s’ terms to determine how much FMS was o wed. In addition, t he court found there was no just reason for delay and directed the entry of final judgment under Trial Rule 54(B) in favor of the Notre Dame and Beacon Health defendants and against FMS.
T he c ourt of a ppeals affirmed, agreeing with Notre Dame and Beacon Health that ERISA preempted FMS’s claims. FMS Nephrology Health Partners N. Cent

. Ind

. Dialysis C tr s, LLC v. Meritain Health, Inc. , 120 N.E.3d 1012 , 1014 (Ind. Ct. App. 2019) , trans. granted

. The appellate cour t believed our opinion in Midwest Security Life Insurance Co

. v. Stroup , 730 N.E.2d 163 (Ind. 2000 ), compelled the conclusion that FMS’s claims were preempted . Analogizing to Stroup , the court found that “FMS’s claims are based on an alleged failure to pay sums due for services covered by anIndiana Suprem e Court | Ca se No. 20S

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ERISA

- regulated plan.” FMS Nephrology Partners , 120 N.E.3d at 10 20

– 21. Thus, the court concluded , FMS’s claims were preempted because “ t he trial court would have had to refer to and interpret the Beacon and Notre Dame Plans to determine (1) whether proper payment had been rendered, and (2) if not, how much additional payment FMS was entitled to receive.” Id. at 1021. After the appellate court denied rehearing, FMS sought transfer, arguing that the c ourt of a ppeals ’ opinion is at odds with Stroup , 730 N.E.2d 163 , and puts Indiana out of step with settled ERISA case law from elsewhere

. Having granted transfer , thus vacating the appellate decision,
we vacate the trial court’s judgment and remand.



## Discussion and Decision

At issue is whether FMS can proceed with its claims , all brought under state law, or whether ERISA preempts th o se claims. Two forms of ERISA preemption a re before us : complete preemption and conflict preemption. The courts below determined that FMS’s claims were foreclosed by ERISA’s conflict

- preemption provision. But w e consider both that provision and the alternative ground

— complete preemption

— urged for affirming the trial court’s judgment

. We begin with complete preemption. Despite its name, c omplete preemption is not about preemption but jurisdiction. It confers federal

question jurisdiction even for claims denominated as state

- law claims. T he Supreme Court has pro nounced a two

- prong test for complete preemption asking, first, whether the claim at some point could have been brought under ERISA’s civil

- enforcement scheme ; and, second, whether the defendant’s actions implicate any independent legal duty apart from ERISA. On this record, we hold t hat FMS’s claims satisfy n either prong and thus are not completely preempted

. Then we address conflict (or express) preemption. We briefly discuss express preemptio n under the Supreme Court’s general preempti on jurisprudence, which looks to the plain text of the applicable preemption statute. Despite its literalism when interpreting most preemption statutes,Indiana Suprem e Court | Ca se No. 20S

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the Court continues to endorse a n atextual, policy

- driven test for ERISA preemption . This test asks whether a claim has either a “reference to” or a “connection with” a n ERISA plan. Applying the test, we hold first that express preemption does not prevent a health

- care provider from enforc ing a separate contract agains t a plan. W e also hold that a key fact ual dispute remain s over whether the underlying claims were deemed covered under the defendant plans . If covered, then the claims would not be preempted. But if not covered, then preemption would apply. W e conclude that the trial court erred in entering summary judgment for the Notre Dame and Beacon Health defendants because , on this record, they did not prove their entitlement to judgment as a matter of law.



### A. No c omplete p reemption

P reemption is typically a federal defense to a plaintiff’s substantive state

- law claim. If the plaintiff’s claim is preempted, federal law supplies the substantive rule of decision . But federal jurisdiction over an ERISA claim is not exclusive. Of relevance here, e ven where federal jurisdiction lies over an ERISA claim , s tate courts have concurrent jurisdiction over such claims. “State courts of competent jurisdiction and district courts of the United States shall have concurrent jurisdiction of actions under paragraphs (1)(B) and (7) of subsection (a) of this sect ion [referring to ERISA Section 502(a)] .” 29 U.S.C. § 1132(e)(1).
The term “c omplete preemption ” is a misnomer. It is less a preemption doctrine than a jurisdictional rule. Franciscan Skemp Healthcare, Inc. v. Cent. States Joint Bd. Health & Welfare Tr ust Fund , 538 F.3d 594, 596 (7th Cir. 2008). Under complete ERISA preemption, even a claim denominated as a state

- law claim, such as one alleging breach of contract, “arises under” federal law , s ee 28 U.S.C. § 1331 , and thus can

— but need not

— be removed to federal court , id . § 1441(a) ; Franciscan Skemp Healthcare, Inc. , 538 F.3d at 596

– 97

. In that sense, co mplete preemption is an exception to the federal well

- plea ded

- complaint rule, according to which the plaintiff is the master of its complaint , and so long as the face of the complaint does not affirmatively allege a federal claim, the plaintiff can remain in state court. But u nder ERIS A’s complete

- preemption exception , a complaintIndiana Suprem e Court | Ca se No. 20S

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a lleging only state

- law claims will nevertheless be transformed from “an ordinary state common law complaint into one stating a federal claim for purposes of the well

- pleaded complaint rule.” Metro

. Life Ins

. Co

. v. Taylor , 481 U.S. 58 , 65

– 6 7 (1987)

. T he Supreme Court first announced its doctrine of complete ERISA preemption in Taylor

. The Court held that ERISA Section 502(a) , 2 9 U.S.C. § 1132(a)(1)(B), reflects Congress’s design to “so completely pre

- empt a particular area that any civil complaint raising this select group of claims is necessarily federal in character.” 481 U.S. at 63

– 64 , 67

. Section 502(a) authorizes a n ERISA

- plan participant or beneficiary to file suit “to recover benefits due to him under the terms of his plan , to enforce his rig hts under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan ”. 29 U.S.C. § 1132(a)(1)(B). If a state

- law claim comes within the scope of this section, then the claim is completely preempted, and the only permissible claim is federal

. The Supreme Court applies a two

- prong test for assessing whether a n asserted state

- law claim comes within the scope of ERISA Section 502(a)(1)(B). A state

- law claim is completely preempted if (1) “an in dividual, at some point in time, could have brought [the] claim under ” this section and (2) “ there is no other independent legal duty that is implicated by [a] defendant’s actions.” Aetna Health Inc. v. Davila , 542 U.S. 200, 210 ( 2004)

. Davila ’s two

- prong test is phrased in the conjunctive, meaning the state

- law claim is completely preempted only if both prongs are met. On this record, neither prong is satisfied.



### 1. Davila ’s first prong

— right to assert an ERISA

- based claim

T here is no complete preemption under the first Davila prong unless the plaintiff assert s what amounts to a claim under ERISA’s civil

- enforcement statute , even if labeled a state

- law claim. A medical provider is not a plan participant or beneficiary , so it lacks standing to bring an ERISA claim directly. But with a valid assignment of rights, a provider can sue deriva tively to enforce ERISA rights belonging to the assignor. Beacon Health , however, a dmits that its plan s’ documents prohibit anyIndiana Suprem e Court | Ca se No. 20S

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assignment of rights , so FMS lack s standing to pursue claims even derivati vely under ERISA Section 502(a). Thus, because FMS cannot pursue ERISA claims against Beacon Health directly or derivatively , its claims against Beacon Health are not completely preempted

. As for its claims against Notre Dame , FMS admits it received valid ERISA

- based assignments from patients enrolled in the Notre Dame plans , which FMS initially pursued against Notre Dame, albeit
unsucc essfully , under the plan s ’ claims

- administration process

. FMS eventually abandoned these assigned claims by electing not to pursue them to completion under Section 502(a)

. According to Notre Dame , FMS’s own actions show that these claims could have been pursued

— and were pursued for a time

— under the plans , thus establishing that the first Davila prong was satisfied as to FMS’s claims against Notre Dame

. That is true, as far as it goes. FMS’s claims are , to be sure, completely preempted to the extent they are based on ERISA rights that Notre Dame plan participants assigned to FMS. But this argument ignores that FMS “holds two separate claims” : not only its claim for benefits under ERISA but also its separate state

- la w claim s
. Conn. State Dental Ass’n v. Anthem Health Plans, Inc. , 591 F.3d 1337, 1347 (11th Cir. 2009) (citing Franciscan Skemp Healthcare, Inc. , 538 F.3d at 598). FMS has disclaimed suing for the ERISA benefits due employees under the Notre Dame plans. Ins tead, FMS is suing in its own capacity to recover damages from Notre Dame under multiple breach

- of

- contract theories or, alternatively, based on promissory estoppel. As the Fifth Circuit has observed, t he crucial inquiry is whether the provider is “seeking benefits under the terms of the plan, or rights that derive from the independent basis of the contract.” Lone Star OB/GYN Assocs. v. Aetna Health Inc. , 579 F.3d 525, 529 n.3 (5th Cir. 2009). Because FM S is pursuing state

- law claims independent of any rights it may have received from the assignments , the first Davila prong is not satisfied as to Notre Dame either. FMS’s theory of this case r einforc es our conclusion that its claims against Notre Dame are not completely preempted. In the analogous collective

- bargaining context, the Supreme Court has held that a plaintiff may avoid preemption by pursu ing exclusively state

- law claims in lieu of other potentially pre empted federal claims

. In Caterpillar Inc. v. Williams ,Indiana Suprem e Court | Ca se No. 20S

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482 U.S. 386 (1987) , the plaintiff s faced a set of contracts governed by a collective

- bargaining agreement and another set of individual employment contracts governed only by state law. The plaintiffs elected to sue only on th e individual contracts. The Supreme Court rejected Caterpillar’s attempt to remove the case to federal court on the basis that the plaintiffs’ claims were founded on the collective

- bargaining agreement and thus governed exclusively by federal law. “ [ The plaintiffs’ ] complaint is not substantially dependent upon interpretation of the collective

bargaining agreement.” Id. at 395.
The same is true here. Like the plaintiffs in Caterpillar , FMS has limited its cause of action by asserting only state

- law claims and has disclaimed any theory of recovery premised on an ERISA

- based claim for benefits under the plans. Because FMS is suing in its own capacity for breach of contract and not asserting a derivative right to benefit s under an ERISA plan, the Notre Dame and Beacon Health defendants fail to satisfy the first prong of Davila

. Our conclusion that the first Davila prong is not satisfied here means there is no complete preemption of FMS’s claims because, as mentioned, Davila ’s test is conjunctive, r equiring that both prongs be met

. T hough unnecessary given our resolution of the first prong, we also address the second Davila prong for the sake of completeness

.



### 2. Davila ’s second prong

— independent, non

- ERISA

based duty
Under Davila ’s second prong, a claim is not completely preempted if it seeks to enforce legal duties independent of those owed to a n ERISA

- plan participant or beneficiary. Under Davila , complete preemption requires, among other things, that there be “no other independ ent legal duty that is implicated by a defendant’s actions ”. 542 U.S. at 210. In other words, if another , independent legal duty exists beyond what an ERISA plan imposes, then a claim based on a violation of that duty is not preempted. A clear example of an independent legal duty is one imposed by contract

. Such c ontract

- or other state

- law

- based claim s withstand complete ERISA preemption because they rely on legal duties arising independentl y ofIndiana Suprem e Court | Ca se No. 20S

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ERISA. Recall that FMS seeks damages based on its relationships with the Notre Dame and Beacon Health plans. Thus, FMS’s state

- law c laims are premised not on ERISA but on the network agreements. These agreements are separate contracts with legal obligations independent of ERISA for both providers and health plans

. Claims to enforce these agreements fail the second Davila prong and are not p reempted. Though not dispositive, we note that defendants Notre Dame and Beacon Health

— the parties urging complete preemption here

— never sought to remove this state

- court action to federal court. Perhaps they recognized removal would have failed because federal jurisdiction is lacking . In other words, t hey knew (or suspected) a federal court would have reached th e same conclusion had they tried to remove, so they took their chances by trying to persuade a state court instead. Whatever the ir
reason s for not seeking removal, we hold that FMS’s claims are not completely preempted under ERISA Section 502 . I ts claims truly ar e state

law claims under the federal well

- pleaded

- complaint rule and do no t establish federal

- question jurisdiction under Section 1331 of Title 28 of the United States Code

. W e also note , as an aside, that pending before the trial court is a request for partial summary judgment, arguing that FMS lacks contractual privity with the defendants . Because both the trial court and court of appeals decided this case on preemption grounds alone , neither court addressed privity. On remand, the defendant s may wi sh to reassert this lack

- of

privity argument as an independent ground for summary judgment against FMS.



### B. No conflict preemption

1. General preemption principles
Next, we consider FMS’s claims under ERISA ’ s conflict

- preemption provision

. Unlike complete preemp tion, conflict (or express) preemption is not an independent basis for invoking a federal court’s jurisdiction. With conflict preemption, t he issue is which substantive law ( federal orIndiana Suprem e Court | Ca se No. 20S

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state) governs the plaintiff’s state

- law claim, regardless of whether the plaintiff sued in a federal or state court. The relevant statute is ERISA Section 514(a) , which preempts “all State laws insofar as they ... relate to any employee benefit plan” covered by ERISA. 29 U.S.C. § 1144(a) (emphasis added). The Supreme Court has cautioned against interpreting “relate to” literally; otherwise, nothing would escape preemption : “If ‘relate to’ were taken to extend to the furthest stretch of its indeterminacy, then for all pract ical purposes pre

emption would never run its course, for really, universally, relations stop nowhere”

. N

. Y

. State Conf erence of Blue Cross & Blue Shield Plans v. Travelers Ins. Co. , 514 U.S. 645, 655 (1995) (cleaned up)

. T he Supreme Court’s early conflict

- preemption cases applied Section 514’s “ relate to ” test by treating the phrase as “ deliberately expansive ”

. Pilot Life Ins. Co. v. Dedeaux , 481 U.S. 41, 45

– 46 (1987). L ater cases , however, took a more restrictive view

. W it h its seminal decision in Travelers , the Supreme Court explained that it has “never assumed lightly that Congress has derogated state regulation ” but instead has “addressed claims of pre

- emption with the starting pres umption that Congress does not intend to supplant state law .” 514 U.S. at 654. More recently, though , the Supreme Court seems to have reverted to a broader view of express preemption

. In Puerto Rico v. Franklin California Tax

- F ree Trust , 136 S. Ct. 1938 (2016), a bankruptcy case, the Court held that federal bankruptcy law preempt ed Puerto Rico from enacting its own municipal scheme for restructur ing the debt of its insolvent public

- utilit y companies

. In finding preemption, t he Court looked solely to the “plain te xt” of the governing clause

. “The plain text of the Bankruptcy Code begins and end s our analysis.” Id . at 1946. According to the Court, the existence of an express preemption clause within the Code mean t the clause applie d as written . It also mean t there
was no presumption against preemption. “ [B]ecause the statute contains an express preemption clause , we do not invoke any presumption against pre
- emption but instead focus on the plain wording of the clause, which necessarily contains the best eviden ce of Congress’ pre

- emptive intent.” I d . (cleaned up).Indiana Suprem e Court | Ca se No. 20S

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- 302 | May 11, 2020 Page 12 of 19 Despite th e statement in Franklin that the Court’s preemption analysis “begins and ends” with the clause’s text, there is reason to think the Court continues to appl y a different , a textual preemption standard in ERISA
cases . Perhaps that is because, as the Court observed in Travelers , the plain meaning of ERISA’s broad preemption clause would swallow nearly all state laws. A pplying the clause literally

— so that virtually no state law would escape preemption

— is an outcome “no sensible person could have intended”

. Cal

. Div. of Labor St andards Enf orcemen t. v. Dillingham Constr., N.A., Inc. , 519 U.S. 316, 336 (1997) (Scalia, J., concurring). In its most recent ERISA preemption case, Gob eil le v. Liberty Mutual Insurance Co

. , 136 S. Ct. 936 (2016), the Court did not apply Section 514(a) literally but continued to identify factors for assessing preemption. “When considered together, these formulations [for describing preempted state laws] e nsure that ERISA’s express pre

- emption clause receives the broad scope Congress intended while avoiding the clause’s susceptibility to limitless application.” Id . at 943. In other words, Gobeille eschew ed a plain

- meaning interpretation of Section 514(a) because of the clause’s propensity to sweep seemingly without limit. That said, a t least one Justice has voiced concern that the Court’s interpretation of Section 514(a) “ has become increasingly difficult to reconcile with our pre

- emption j urisprudence. ” Id

. at 948 (Thomas, J., concurring). According to Justice Thomas, the Court should no longer indulge a preemption jurisprudence under ERISA untethered to the statute’s tex t, but instead should decide whether the statute unconstitutionally preempts too broad a swath of state laws. Id . at 948

– 49. For now, however, that seems to represent the v iew of only a single Justice

. Under Gobeille , the relevant preemption factors are those the Court has
con sidered for some time. Id . at 943. To date, the Court has identified two categories of state laws that ERISA preempts : laws having a “ reference to” and those having a “connection with” an ERISA plan. Id

. As long ago as Travelers , the Court recognized th e futility of analyz ing issues of conflict preemption with such useless descriptions as “ connection with” and

“ reference to”

. 514 U.S. at 656

. That is why later decisions went “beyond the unhelpful text and the frustrating difficulty of defining its key term [‘relate to’] ” and look ed instead “ to the objectives of the ERISA statute as aIndiana Suprem e Court | Ca se No. 20S

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guide to the scope of the state law that Congress understood would survive” preemption. Id

. ERISA ’s objectives are to protect plan participants and their beneficiaries by , among other things, imposing disclosure and reporting requirements, holding fiduciaries to standards of conduct, providing appropriate remedies, and improving the equitable character and financial soundness of employee

- benefit plans. 29 U.S.C. § 1001(b), (c). Given these statutory objectives, t he Supreme Court observe d that the point of conflict preemption is to ensure uniform national standard s for administering ERISA

- covered plans. “The basic thrust of [ Section 514(a)] was to avoid a multiplicity of regulation in order to permit the nationally uniform administration of employee benefit plans.” Travelers , 514 U.S. at 657. The Court later modified its inquiry from Travelers to emphasize that courts must consider not only ERISA’s

“ objectives ” but also the “ nature of the effect of the state law on ERISA pla ns”. Dillingham , 519 U.S. at 325

. In other words, courts must look to such factors as whether state law is mandating plan terms or benefits, effectively regulating the plan, or providing an alternative enforcement mechanism to ERISA. See Travelers , 514 U.S. at 65 8

. T hese prior decisions have culminated in Gobeille ’s “ formulations ” that “reference to” an ERISA plan means a state law will be preempted when it “acts immediately and exclusively upon ” a plan or when the plan’s existence “is essential to the [state] law’s operation”

. 136 S. Ct. at 943 ( quoting Dillingham , 519 U.S. at 325). And “connection with” an ERISA plan means a state law will be preempted when it “governs

... a centr al matter of plan administration ” or “interfere s with nationally uniform plan administration ”, id. (quoting Egelhoff v. Egel hoff , 532 U.S. 141, 148 (2001)) , or “force[s] an ERISA plan to adopt a certain scheme of substantive coverage or effectively restrict[s] its choice of ins urers.” Id. ( quoting Travelers , 514 U.S. at 668).Indiana Suprem e Court | Ca se No. 20S

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### 2. Applying the general principles

a. No preemption of claims to enforce separate contract against ERISA plans We have previously held that ERISA expressly preempts claims concerning coverage under an ERISA

- governed plan

. The issue in such cases is whether there is a right to coverage under an ERISA plan. In Stroup , 730 N.E.2d 163, the plaintiffs were beneficiaries of an employee

benefit plan subject to ERISA who challenged the plan’s denial of health

care coverage. We found it “clear” that the Stroups’ state

- law claims for breach of contract and the tort of bad faith were expressly preempted because the claims were based on the plan’s “failure to pay benefits due under an ERISA

- governed” plan. Id . at 166

– 67. These claims thus had a “connection with” the plan because they arose from the plan’s “denial of coverage”. Id . at 167. FMS argues that the court of appeals mis construed our precedent when it held that Stroup preempts claims against ERISA plans to enforce state

law

- based obligations arising independent of the plans

. We agree with FMS

. Stroup is a narrow decision holding that ERISA preemption occurs when the “essence of the claims is a failure to supply benefits under the plan

. ” Id. A claim challenging the denial of benefits necessarily require s interpretation of the plan documents to assess whether the plan’s coverage decision was correct. And that is quintes sentially the type of inquiry that ERISA Section 514 preempts. Our holding in Stroup is consistent with other courts concluding that ERISA expressly preempts claims about the scope of a plan’s coverage. See, e.g., Ray Klein, Inc. v. Bd. of Trs

. of the Alas ka Elec. Health & Welfare Fund , 307 F. Supp. 3d 984, 991 (D. Alaska 2018) (finding express preemption because “what charges are covered under the Plan is at the heart of the dispute”). But neither Stroup
nor Ray Klein purports to preempt the species of cla im that FMS is assert ing here, which is about neither a beneficiary’s right to coverage under an ERISA plan n or a health

- care provider’s right to payment under a plan, but about a provider’s rate of payment under a separate contract with a plan.Indiana Suprem e Court | Ca se No. 20S

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-

judgment record is sufficiently complete and uncontroverted that we can make the following three observations about FMS’s claims. First, FMS does not seek to dictate the terms governing its patients’ benefit plans, to regulate such plans, or to create alternative grounds for enforcing ERISA’s requirements against the plans. FMS’s claims, even if successful, would not impose disparate requirements on the defendant plans, so there is no risk of undermining Congress’s goal of a uniform national stan dard for administering ERISA plans. Second, FMS’s claims do not concern the “areas with which ERISA is expressly concerned

— reporting, disclosure, fiduciary responsibility, and the like.” Dillingham , 519 U.S. at 330 (cleaned up). Third, FMS is not using its claims as a proxy for enforcing substantive rights conferred under ERISA. As explained above, FMS is a health

- care provider with no substantive rights of its own under ERISA. And it has specifically disclaimed any deriva tive rights under ERISA it may have obtained by assignment from its patients. Instead, FMS seeks to vindicate only its contract

- based rights against the Notre Dame and Beacon Health defendants and their third

- party administrator arising under state law. Despite these conclusions, however, t wo issues remain. The trial court held that even if the EOBs or other designated evidence established that FMS’s claims were adjudicated as covered under the plans, the claims would still be preempted because the question of how much is owed or payable to FMS still requires “the application of, reference to and/or interpretation of the plan documents.” And the court of appeals agreed : “[D]espite FMS’s assertion to the contrary, the trial court would have had to refer to and interpret the Beacon and Notre Da me Plans to determine (1) whether proper payment had been rendered, and, (2) if not, how much additional payment FMS was entitled to receive.” FMS , 120 N.E.3d at 1021. Yet in its transfer petition, FMS takes issue with this characterization: “The trial cou rt will not be asked to reference the Plans’ terms to determine the payment amount ; the Plans contain no pricing terms and there is no interpretation left to be done for claims already adjudicated as covered.” The mere fact that a court may have to conside r or consult the terms of an ERISA

- governed plan while adjudicating a state

- law claim does notIndiana Suprem e Court | Ca se No. 20S

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mean the claim is preempted. As the Seventh Circuit held in Kolbe & Kolbe Health & Welfare Benefit Plan v. Medical College of Wisconsin, Inc. , 657 F.3d 496 (7th Cir. 2011), there is no express preemption “merely because [a state

- law claim] requires a cursory examination of ERISA plan provisions.” Id. at 504 (citation omitted)

. There, the court held the plaintiff’s claim was not preempted because resolving the brea ch

- of

contract claims required interpreting “only the member or service agreements and the provider agreements”. Id . at 504

– 05. See also Blue Cross of Cal

. . v. Anesthesia Care Assocs

. Med

. Grp

. , Inc. , 187 F.3d 1045, 1053 (9th Cir. 1999) (finding no preemption because provider’s claims “do not involve construction of the terms of ERISA

- covered benefit plans”).



### b. S ummary judgment entered erroneously

T he record does not establish why the Notre Dame and Beacon Health plans did not pay FMS’s disputed claims. If the reason is that there is no right to payment under the plans, then the claims are expressly preempted. But to the extent a court must determine not whether a claim for services was covered but whether the plan paid less than the agreed provider rate for covered services based on an agreement separate from the plan, then the claim is not preempted. Based on our review of the EOBs and the other evi dence designated on summary judgment, we cannot tell how these disputed claims were adjudicated under the plans. Given these disputes of material fact over whether FMS’s claims were denied based on the terms of the plans, we conclude that the trial court
e rred in entering summary judgment on this basis. As mentioned, FMS argues that Meritain, as third

- party administrator issuing the EOBs , deter mined that FMS’s disputed claims were covered under the defendants’ ERISA plans , and that the plans failed to pay the negotiated amounts the parties had agreed FMS would receive for its services

. Thus, according to FMS, its legal claims are based not on the plans themselves but on its separate agreements with the plans

. FMS says the Court need only examine the EOBs to see whether the plans paid the negotiated rates for covered medical services. FMS says a plain reading ofIndiana Suprem e Court | Ca se No. 20S

- PL

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its designated EOBs shows that the claims were covered, including the claims that are entirely subject to the “Pro vider Discount”. In contrast, b oth Notre Dame and Beacon Health dispute th at FMS’s claims were deemed to be covered under the ir respective plans. They say they rejected FMS’s claims based on the plan documents. Notre Dame argues, for example, that certain claims were denied for lack of medical necessity and bundling issues. T o support its argument, Notre Dame submitted certain EOBs that s how the denial of some claims. But many of the Notre Dame EOBs were issued f or different dates of service than the ones FMS offered to support its breach

- of

- contract claim. And we note that if there is an adverse benefit determination, ERISA’s claims

processing regulation requires that the “specific reason or reasons for the adver se determination” be provided, as well as “[r]eference to the specific plan provisions on which the determination is based”. See 29 C.F.R. § 2650.503

- 1(g) (1) (i), (ii). Yet n either Notre Dame’s nor FMS’s designated EOBs provide specific reasons for adverse determinations or reference specific plan provisions. We hold that Notre Dame did not sustain its burden of affirmatively prov ing that FMS is challenging determinations of no coverage under the plans. And, f or its part, Beacon Health argues that it denied certain claims because they were not “clean claims”, designating the affidavit of Annette Vota to support its argument. In her affidavit, Vota stated that “[t]he claims submitted by [FMS], which [FMS] asserts where [sic] not paid, were not ‘clean claims’ and not entitled to payment”, and that FMS “has been paid in full for all clean claims, as well as for all covered claims.” But Beacon Health’s clean

- claim argument fails on its own terms. Beacon Health’s network contract defines a clean claim as o ne “submitted by a provider for payment with no defect, impropriety, or particular circumstance requiring special treatment preventing payment. Basically, when the payor has received all information required to determine liability under the terms of the po licy the claim is clean.” By issuing EOBs
on Beacon Health ’s behalf, Meritain was able to determine liability under the policy’s terms

— meaning FMS’s claims were clean. Additionally, just as with the Notre Dame EOBs , those designated by Beacon Health likewi se did not meet the requirements of adverse benefit determinationsIndiana Suprem e Court | Ca se No. 20S

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under ERISA’s claims

- processing regulation. See 29 C.F.R. § 2650.503

- 1(g) (1) (i), (ii). For both reasons, we find that Beacon Health has failed to show there were adverse benefit determinati ons under its plans for FMS’s disputed medical services

. We refer to the Code of Federal Regulations not to suggest that Notre Dame or Beacon Health necessarily violated notice requirements imposed under federal law . Instead, we note the absence of such evidence only to underscore our uncertainty over whether FMS’s claims were indeed adjudicated as not covered under the plans, as Notre Dame and Beacon Health maintain.
* * *
S ummary judgment was improper because the No tre Dame and Beacon Health defendants did not establish as a matter of law that FMS’s claims “enter[] a fundamental area of ERISA regulation” , Gobeille , 136 S. Ct. at 946 , or that its claims are “substantially dependent upon interpretation” of the defendants’ plan documents, Caterpillar , 482 U.S. at 395. Specifically, the se defendants did not establish either (1) that FMS’s claims were adjudicated as covered under the defendants’ plans or (2) that a court would have to co nsult the various plans’ documents to determine whether FMS was underpaid and, if so, by how much.



## Conclusion
For these reasons, we grant transfer, vacate the trial court’s entry of judgment in favor of the Notre Dame and Beacon Health defendants and aga inst FMS , and remand for further proceedings not inconsistent with this opinion.



### Rush, C.J., and Massa and Goff, JJ., concur. David, J., concurs in result.Indiana Suprem e Court | Ca se No. 20S

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- 302 | May 11, 2020 Page 19 of 19 A T T O R N E Y S F O R A P P E L L A N T F M S N E P H R O L O G Y P A R T N E R S N O R T H C E N T R A L I N D I A N A D I A L Y S I S C E N T E R S , L L C Bryan H. Babb Bradley Dick Bose McKinney & Evans LLP Indianapolis, IN Caroline Turner English Brian D. Schneider Emily Baver Slavin Arent Fox LLP Washington, D.C.

A T T O R N E Y S F O R A P P E L L E E S B E A C O N H E A L T H S Y S T E M , I N C ; B E A C O N H E A L T H S Y S T E M G R O U P B E N E F I T P L A N ; B E A C O N H E A L T H S Y S T E M G R O U P B E N E F I T P L A N

- U N I O N P L A N Richard B. Urda, Jr. Urda Professional Corporation South Bend, IN Joseph L. Amaral R. William Jonas Hammerschmidt, Amaral & Jon as South Bend, IN

A T T O R N E Y S F O R A P P E L L E E S U N I V E R S I T Y O F N O T R E D A M E D U L A C ; U N I V E R S I T Y O F N O T R E D A M E C H A H M O P L A N ( M E D I C A L ) ; U N I V E R S I T Y O F N O T R E D A M E S E L E C T H M O P L A N ( M E D I C A L ) ; U N I V E R S I T Y O F N O T R E D A M E P P O P L A N ( M E D I C A L ) Brian E. Casey Kelly J. Hartzler Ali ce J. Springer Barnes & Thornburg LLP South Bend, IN