United States Court of Appeals

for the Fifth Circuit

No. 21-20168

ACS Primary Care Physicians Southwest, P.A.; Hill 

County Emergency Medical Associates, P.A.; Longhorn 

Emergency Medical Associates, P.A.; Central Texas 

Emergency Associates, P.A.; Emergency Associates of 

Central Texas, P.A.; Emergency Services of Texas, P.A., 

Plaintiffs—Appellees,

versus

UnitedHealthcare Insurance Company; 

UnitedHealthcare of Texas, Incorporated, 

Defendants—Appellants.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:20-CV-1282

Before King, Graves, and Ho, Circuit Judges.

King, Circuit Judge:

Texas state law requires that health plan administrators pay 

emergency-care providers their “usual and customary rate” when those 

providers give emergent care to an out-of-network plan enrollee. Today, we 

are asked whether that same state law also creates an implied private right of 

United States Court of Appeals

Fifth Circuit

FILED

February 23, 2022

Lyle W. Cayce

Clerk

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action on behalf of those emergency-care providers. For the reasons 

discussed below, we CERTIFY to the Supreme Court of Texas.

I.

The plaintiffs-appellees are emergency-care physician groups

(“Plaintiff Doctors”) in Texas and the defendants-appellants—

UnitedHealthcare Insurance Company and UnitedHealthcare of Texas 

(collectively, “UHC”)—are health insurance companies. The Plaintiff 

Doctors did not participate in UHC’s provider network. Nevertheless, by 

law, the Plaintiff Doctors must serve all those who require emergent care 

regardless of whether their patient is in-network. Texas law also imposes a 

minimum payment owed to the Plaintiff Doctors when they provide such 

care: emergency-care providers must be paid their “usual and customary 

rate[s]” for care provided to out-of-network plan enrollees. Tex. Ins. 

Code §§ 1271.155(a) (applicable to Health Maintenance Organizations),

1301.0053(a) (applicable to Exclusive Provider Organizations), and 

1301.155(b) (applicable to Preferred Provider Organizations). These statutes, 

called the “emergency-care” statutes, read: 

§ 1271.155(a): A health maintenance organization shall pay for 

emergency care performed by non-network physicians or 

providers at the usual and customary rate or at an agreed rate.

§ 1301.0053(a): If an out-of-network provider provides 

emergency care as defined by Section 1301.155 to an enrollee in 

an exclusive provider benefit plan, the issuer of the plan shall 

reimburse the out-of-network provider at the usual and 

customary rate or at a rate agreed to by the issuer and the outof-network provider for the provision of the services and any 

supply related to those services.

§ 1301.155(b): If an insured cannot reasonably reach a preferred 

provider, an insurer shall provide reimbursement for the 

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following emergency care services at the usual and customary 

rate or at an agreed rate and at the preferred level of benefits 

until the insured can reasonably be expected to transfer to a 

preferred provider[.]

The Plaintiff Doctors provided various emergency medical services to 

patients enrolled in UHC’s healthcare plans from January 2016 to the present 

day. All parties agreed that some amount of money must be paid by UHC to 

the Plaintiff Doctors; however, the Plaintiff Doctors believed that they were 

“paid at unacceptably low rates,” well below their “usual and customary 

rates,” and thus brought suit in Texas state court. UHC promptly removed 

the case to the federal district court for the Southern District of Texas.

The Plaintiff Doctors alleged that UHC violated the emergency-care 

statutes by failing to pay the “usual and customary rate[s].”1 The district 

court dismissed the plaintiffs’ claims under Texas Insurance Code 

§ 1303.155(b) (the statute applicable to PPOs) for claims dated from January 

1, 2016, to December 31, 2019, but it found that the remaining emergencycare statute claims survived.

UHC immediately sought an interlocutory review of two issues: 

(1) whether the emergency-care statutes provide for an implied private right 

of action; and (2) if so, whether ERISA § 514 preempts the claims brought 

under the emergency-care statutes.2 Both the district court and this circuit 

granted UHC’s request for interlocutory review. Soon after, on April 22, 

2021, the Plaintiff Doctors moved to certify the first issue to the Texas 

Supreme Court.

1 Appellees also brought breach of contract and quantum meruit claims, but these 

are not relevant to this appeal.

2 Because we certify the first issue to the Texas Supreme Court, we do not address 

the second issue at this time.

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II.

This court may certify a question to the Supreme Court of Texas. See 

McMillan v. Amazon.com, Inc., 983 F.3d 194, 202 (5th Cir. 2020). We look to 

three factors to determine whether certification is proper: 

(1) the closeness of the question and the existence of sufficient 

sources of state law; (2) the degree to which considerations of 

comity are relevant in light of the particular issue and case to 

be decided; and (3) practical limitations of the certification 

process: significant delay and possible inability to frame the 

issue so as to produce a helpful response on the part of the state 

court.

Id. (quoting Silguero v. CSL Plasma, Inc., 907 F.3d 323, 332 (5th Cir. 2018)).

Here, each factor advises that we certify.

The first factor—the closeness of the question and the existence of 

sufficient sources of state law—favors certification. The question of whether 

the emergency-care statutes create an implied private right of action is a close 

one, and both parties present strong arguments in their favor. Under Texas 

law, an implied right of action may be found only if the plain language of the 

statutory text supports one. Brown v. De La Cruz, 156 S.W.3d 560, 563 (Tex. 

2004). The plaintiffs point us to Texas Supreme Court precedents that found 

implied rights of action in similarly precise statutory and constitutional 

language. See City of Beaumont v. Bouillion, 896 S.W.2d 143, 149 (Tex. 1995) 

(finding an implied right of action in “no person’s property shall be taken, 

damaged or destroyed for or applied to public use without adequate 

compensation”). But see Brown, 156 S.W.3d at 561-62 (finding an implied 

right of action in “[seller] is liable to the purchaser for . . . liquidated 

damages” but no implied right of action in “[seller is] ‘subject to a penalty’ 

of up to $500 a day.”). Here, the emergency-care statutes provide what must 

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be paid (the “usual and customary rate”), who shall pay it (“an issuer of a 

plan”), and who shall be paid (an “out-of-network provider”). Therefore, a 

court could plausibly read the emergency-care statutes to provide an implied 

right of action, as the district court did. 

On the other hand, these same Texas Supreme Court precedents 

adopt a rule of “strict construction” for courts reviewing a statute for an 

implied right of action. Brown, 156 S.W.3d at 566-67. Applying that rule, a 

Texas state appellate court has found that the emergency-care statutes do not 

provide an implied private right of action. Tex. Med. Res., LLP v. Molina 

Healthcare of Tex., Inc., 620 S.W.3d 458 (Tex. App.—Dallas 2021, pet. 

filed).3 It explained that, given the detailed regulatory code from which the 

emergency-care statutes arise and the fact that the Texas Insurance Code 

expressly creates causes of action in other sections, it would be inappropriate 

to imply one here. Id. at 464-65. That, too, is a plausible reading. Thus, “any 

Erie guess would involve more divining than discerning,” and certification is 

the favored route. McMillan, 983 F.3d at 202. 

The second factor—comity—also strongly favors certification. In 

McMillan, we explained that “federal-to-state certification is prudent when 

consequential state-law ground is to be plowed, such as defining and 

delimiting state causes of action.” Id. And that is precisely what the parties 

are asking this court to do. Whether there is an implied private right of action 

within the emergency-care statutes either enables or eliminates thousands of 

claims regarding the underpayment of insurers to non-network healthcare 

providers. Certainly, the state of Texas has a strong interest in the answer.

3 The Texas Supreme Court has since requested full merits briefing on the issue. 

Brief on the Merits Requested, Tex. Med. Res., LLP v. Molina Healthcare of Tex., Inc., No. 21-

0291 (Tex. Sept. 24, 2021).

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The third factor—practical limitations on the certification process—

favors certification as well. The question posed is a legal one that is simple to 

frame (even if difficult to answer). The risk of delay is also minimal; “[t]o its 

immense credit, and for several years in a row, the Supreme Court of Texas 

has decided every argued case by the end of June.” Id. at 203, certified question 

accepted (Jan. 8, 2021), certified question answered, 625 S.W.3d 101 (Tex. 

2021). We are confident that, should the Court accept the certified question, 

its streak of timely decisions will continue.

III.

We certify the following question of state law to the Supreme Court 

of Texas:

Do §§ 1271.155(a), 1301.0053(a), and 1301.155(b) of the Texas 

Insurance Code authorize Plaintiff Doctors to bring a private 

cause of action against UHC for UHC’s failure to reimburse 

Plaintiff Doctors for out-of-network emergency care at a 

“usual and customary” rate?

We disclaim any intention or desire that the Court confine its reply to the 

precise form or scope of the question certified.

QUESTION CERTIFIED.

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