1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 16a0147p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

A MANDA G. B ROWN ; H ARROGATE F AMILY P RACTICE LLC, Plaintiffs-Appellants ,

v

.

B LUE C ROSS B LUE S HIELD OF T ENNESSEE , I NC ., Defendant-Appellee

. ┐ │ │ │ │ │ │ │ │ ┘ No. 15-5739

Appeal from the United St ates District Court for the Eastern District of Tennessee of Chattanooga. No. 1:14-cv-00223—Curtis L. Collier, District Judge. Argued: March 17, 2016
Decided and Filed: June 27, 2016
Before: KETHLEDGE, DONALD, and ROTH * , Circuit Judges.

_________________ COUNSEL

ARGUED: Hudson T. Ellis, ERIC BUCHANAN & ASSOCIATES, PLLC, Chattanooga, Tennessee, for Appellants. James T. W illiams, MILLER & MARTIN PLLC, Chattanooga, Tennessee, for Appellees. ON BRIEF: Hudson T. Ellis, Eric L. Buchanan, ERIC BUCHANAN & ASSOCIATES, PLLC, Chattanooga, Tennessee, fo r Appellants. James T. Williams, Donald J. Aho, Robert F. Parsley, MILLER & MARTIN PLLC, Chattanooga, Tennessee, for Appellees.

* The Honorable Jane R. Roth, Senior Circuit Judge fo r the United States Court of Appeals for the Third Circuit, sitting by designation. 

### >No. 15-5739 Brown, et al. v. BlueCross BlueShield of Tenn. Page 2

_________________ OPINION

_________________ ROTH, Circuit Judge. Healthcare provider Harrogate Family Practice, LLC, and its owner, Amanda Brown (collectively Harrogate), brought suit under Sect ion 502 of the Employee Retirement Income Security Act of 1974 (ERISA) to inter alia , enjoin Blue Cross Blue Shield of Tennessee (Blue Cross) from recouping payments fo r services Harrogate pr ovided to Blue Cross
members. The district court dismissed for la ck of subject matter jurisdiction, finding that Harrogate lacked standing under ERISA. On app eal, Harrogate argues that it has direct standing to sue as an ERISA beneficiary or, in the altern ative, that it acquired de rivative standing via an assignment of benefits from Blue Cross members. We conclude that while Harrogate does have derivative standing through an a ssignment of benefits, its clai m regarding recoupments falls outside the scope of that assignmen t and therefore we affirm the j udgment of the district court.

I. Background
Harrogate is a healthcare provi der that participates in Bl ue Cross networks, regularly treating patients who are participants and benefi ciaries under health-benef it plans administered by Blue Cross. Per industry practice, Harrogate ’s patients signed an “Assignment of Benefits Form,” allowing Harrogate to bill Blue Cross directly for payment of services. 1 The arrangement between Harrogate and Blue Cross is governed by a Provider Agreement, which allows Blue Cross to perform post-payment aud its and recoup overpayments from Harrogate in the event a payment error is detected. 2 The Provider Agreement includes a clause requiring that disputes between Blue Cross and Providers be submitted to binding arbitration.

1 The “Assignment of Benefits Form” states, in releva nt part, “I request that payment of authorized insurance benefits . . . be made on my behalf to Harrogate Family Practice, LLC . . . . I understand that I am financially responsible to the organization for any charges not covered by Health care benefits.”
2 The Provider Agreement provides, in relevant part, “Claim payments made by BCBST are contingent upon the accuracy of diagnos tic and other information provided to BCBST. If BCBST determines that it has made erroneous overpayments or underpayments to the Professi onal, BCBST may recover or make additional payments to correct such errors. . . . If BCBST determines in its so le discretion that it has made an overpayment to the Professional, the Professional agrees to reimburse BCBST for such overpayment and BCBST may recover theNo. 15-5739 Brown, et al. v. BlueCross BlueShield of Tenn. Page 3

At issue are claims filed by Harrogate for antigen leukocyte ce llular antibody (ALCAT) tests, which purport to identify certain food allerg ies. Blue Cross claims that these tests are “unproven,” with “little or no sc ientific rationale,” and theref ore categorizes the tests as “investigational.” I nvestigational treatment s are not “covered, comp ensable services” under Blue Cross’s Manual for Providers, which is incorporated by reference into the Provider Agreement. The Provider Agreement also specifie s that Harrogate may not “back-bill” patients for un-reimbursed, investigational treatments unles s prior to rendering such services, “the
Provider has entered into a procedure-specific written agreement with the Member, which has
advised the Member of his/her payment responsibilities.”

In November 2013, Blue Cross conducted two audits of Harrogate’s billings and found improper payments to Harrogate for ALCAT tests. Based on these findings, Blue Cross began recouping overpayments from Harrogate. Harroga te brought suit in the United States District Court for the Eastern District of Tennessee, seek ing declaratory and inj unctive relief to bar further recoupment by Blue Cross under ERIS A §§ 502(a)(3) and 502(a )(1)(B), as well as compensatory relief for funds that had allege dly been wrongfully rec ouped. Blue Cross moved
to dismiss the case under Federal Rules of Civ il Procedure 12(b)(1) and 12(b)(6), arguing that Harrogate lacked standing under ERISA, and al so moved to compel arbitration under the Provider Agreement. The district court granted Blue Cross’s motion to dismiss, holding that Harrogate did not meet the stat utory definition of “beneficiary ” and that Harrogate had not received a valid assignment for the purpose of conferring derivative stan ding to bring suit under ERISA. Harrogate now appeals.

amount of such overpayment by offsetting the overpayment against what is ow ed to the Professional for other claims or by requesting repayment of the overpayment from the Professional.”No. 15-5739 Brown, et al. v. BlueCross BlueShield of Tenn. Page 4

II. 3 Direct Standing under ERISA
ERISA’s civil enforcement provision empowers only plan participants and beneficiaries to bring suit to recover their benefits under a pl an. 29 U.S.C. § 1132(a)(1)(b). A beneficiary is defined as “a person designated by a participant, or by the terms of an employee benefit plan, who is or may become entitled to a benefit ther eunder.” 29 U.S.C. § 1002(8). Harrogate argues that it meets the statutory definition of “benefic iary” because it is “designated by the applicable ERISA Plans to receive and [does] in fact receive Plan benefits in exchange for medical care provided to participants.”
The Sixth Circuit has long rejected this th eory of ERISA standing. “The fact that [a healthcare provider] may be entitled to paymen t from [an insurance comp any] as a result of her clients’ participation in an employee plan does not make her a benefi ciary for the purpose of ERISA standing.” Ward v. Alternative Health Delivery Sys., Inc. , 261 F.3d 624, 627 (6th Cir. 2001). This position is consistent with every ot her circuit that has c onsidered the issue. See Pa. Chiropractic Ass’n v. Indepe ndence Hosp. Indem. Plan, Inc. , 802 F.3d 926, 930 (7th Cir. 2015) (holding that healthcare provi ders “are not ‘beneficiaries’ as ERISA uses that term.”); Spinedex Physical Therapy USA Inc. v. United Healthcare of Ariz., Inc. , 770 F.3d 1282, 1289 (9th Cir. 2014) (holding that a health care provider “cannot br ing claims for benefits on its own behalf” under ERISA); Pascack Valley Hosp., Inc. v. Local 464A UFCW Welfare Reimbursement Plan , 388 F.3d 393, 400 (3d Cir. 2004) (“We conclude th at the Hospital could not have brought its claims under § 502(a) because the Hospital does not have standing to sue under that statute.”); Hobbs v. Blue Cross Blue Shield of Ala. , 276 F.3d 1236, 1241 (11th Ci r. 2001) (“Healthcare providers . . . are not considered ‘beneficiaries’ or ‘participa nts’ under ERISA.”). The Second Circuit provided an excellent summary of th e logic behind these holdings in its recent Rojas decision, in which it concluded that:

3 The District Court entered a final judgment granting Blue Cross’s Motion to Dismiss under Fed. R. Civ. P. 12(b)(1) and 12(b)(6). Harrogate timely appealed the dism issal. We have jurisdiction over the present appeal pursuant to 28 U.S.C. § 1291. We review the District Court’s dismissal for lack of subject matter jurisdiction de

novo , but accept any factual findings that the district court made in its anal ysis unless clearly erroneous. “Where a defendant moves to dismiss a complaint for the lack of subject matter jurisdiction, the plaintiff has the burden of proving jurisdiction in order to survive the motion.” Davis v. United States , 499 F.3d 590, 593-94 (6th Cir. 2007) (internal quotations omitted).No. 15-5739 Brown, et al. v. BlueCross BlueShield of Tenn. Page 5

“Beneficiary,” as it is used in ER ISA, does not without more encompass healthcare providers. Although the term “b enefit” is not defined in ERISA, we are persuaded that Congress did not intend to include doctors in the category of “beneficiaries.” Benefits to which a be neficiary is entitled are bargained-for goods, such as “medical, surgical or hospita l care,” rather than a right to payment for medical services rendered . . . . While [the Provider] may indeed be entitled to a benefit qua benefit through opera tion of the plan— i.e. , payment for its medical services—[the Provider] confuses the issue. The “benefit” the plan provides belongs to [the Provider’s] patients; [the Provider’s] claim to payment for covered services is a function of how [the insu rer] reimburses hea lthcare providers under the Benefit Plan. That right to payment does not a beneficiary make.
Rojas v. Cigna Health and Life Ins. Co. , 793 F.3d 253, 257-58 (2d Cir. 2015) (internal citations omitted).
Harrogate has offered no persuasive reasoni ng to disturb our previous holding or
contradict those of the other circuits. Thus , consistent with our previous decision in Ward , we hold that a healthcare provider does not qualify as a statut ory beneficiary under ERISA and therefore affirm the district court’s finding that Harrogate lacks direct standing to bring its
claims.
III. Derivative Standing under ERISA
Harrogate asserts that even if it lacks stan ding as a statutory be neficiary, it can still pursue its claims under a theory of derivative standing, based on the “A ssignment of Benefits Forms” its patients signed. Derivative standi ng confers upon the holder of a valid assignment “standing to sue in place of the assignor.” Misic v. Bldg. Serv. Emps. Health and Welfare Trust , 789 F.2d 1374, 1378 (9th Cir. 1986). As we previ ously held, a provider obtains derivative standing to sue under ERISA only when the patient “actually convey[s]” a “valid assignment of benefits” under the plan. Cromwell v. Equicor-Equitable HCA Corp. , 944 F.2d 1272, 1277 (6th Cir. 1991). Blue Cross argues th at Harrogate’s “Assignment of Be nefits Forms” provide only for direct payment and are therefore insufficient to grant an assignm ent of rights for purposes of derivative standing. The district court agree d, finding “no consensus among the federal courts regarding whether language that provided for direct payment of benefits constitutes an assignment for purposes of ERISA.”No. 15-5739 Brown, et al. v. BlueCross BlueShield of Tenn. Page 6

However, there is now a broad consensus that “when a patient assigns payment of insurance benefits to a healthcare provider, that provider gains standing to sue for that payment under ERISA § 502(a).” North Jersey Brain and Spine Ctr. v. Aetna, Inc. , 801 F.3d 369, 372 (3d Cir. 2015); s ee also Rojas , 793 F.3d at 258 (2d Cir. 2015); Spinedex , 770 F.3d at 1289 (9th Cir. 2014); Tango Transp. v. Healthcare Fin. Servs. LLC , 322 F.3d 888, 889 (5th Cir. 2003); I.V. Servs. of Am. v. Inn Dev. & Mgmt. , 182 F.3d 51, 54 n.3 (1st Cir. 1999); Kennedy v. Conn. General Life Ins. Co. , 924 F.2d 698, 701 (7th Cir. 1991). Indeed, the case that the district court relied most heavily upon for rejecting Harrogate ’s claim of derivative standing was recently overturned on appeal by the Third Circuit in American Chiropractic , which found that an assignment of benefits was effective to grant th e healthcare provider derivative standing under
ERISA. Am. Chiropractic Ass’n. v. Am. Specialty Health Inc. , 625 F. App’x. 169, 174-75 (3d Cir. 2015). In that case, the Third Circuit recognized that an assignment of the right to payment—with language virtually identical to that in Harrogate’s “Assignment of Benefits”
form 4 —necessarily included the ability to enfor ce that right by bringing suit under ERISA to collect money owed. In a companion case, the Th ird Circuit elaborated th at “the assignment is only as good as payment if the provider can enfo rce it” and therefore, “[a]n assignment of the right to payment logically entails the right to sue for non-payment.” North Jersey Brain , 801 F.3d at 372-73.
These rulings are consistent with Congress’ s stated purpose in enacting ERISA: to “protect [] the interests of pa rticipants in employ ee benefit plans.” 29 U.S.C. § 1001(b). Therefore,
[i]t does not seem that the interests of pa tients or the intentio ns of Congress would be furthered by drawing a distinction betw een a patient’s assignment of her right to receive payment and the medical provider’ s ability to sue to enforce that right. The value of such assignments lies in the fact that providers, confident in their right to reimbursement and ab ility to enforce that right against insurers, can treat patients without demanding they prove th eir ability to pay up front. Patients increase their access to healthcare and tr ansfer responsibility for litigating unpaid

4 In American Chiropractic , the relevant assignment “authorized payment of medical benefits to [the provider] for all services rendered.” Such an assignment wa s sufficient to “afford [the Provider] standing to sue his patients’ insurers for reimbursement for services he provided.” 625 F. App’x. at 174-75. Similarly, Harrogate’s “Assignment of Benefits Forms” read: “I request that payment of authorized insurance benefits . . . be made on my behalf to Harrogate Family Practice, LLC.”No. 15-5739 Brown, et al. v. BlueCross BlueShield of Tenn. Page 7

claims to the provider which will ordinarily be better positioned to pursue those claims. These advantages would be lost if an assignment of payment of benefits did not implicitly confer standing to sue.
North Jersey Brain , 801 F.3d at 373-74 (inter nal citations omitted).
We agree that the assignment of the right to payment is sufficient to confer derivative standing to bring suit for non-payment under ERISA. We therefore revers e the district court’s holding that Harrogate’s “Assignment of Benefits Forms” were not valid assignments of benefits for the purpose of conferring derivative standing.
IV. Scope of Harrogate ’s Derivative Standing
Harrogate presents a third, more novel question fo r this court: whethe r its present suit for recoupments falls within the scope of its de rivative standing under ERISA. A healthcare provider-assignee “stands in the shoes of the bene ficiary,” and can only asse rt claims that could have been brought by patients themselves. Blue Cross of Calif. v. Anesthesia Care Assoc. Med. Grp., Inc. , 187 F.3d 1045, 1051 (9th Cir. 1999); CardioNet, Inc. v. Cigna Health Corp. , 751 F.3d 165, 178 (3d Cir. 2014) (“It is a basic principle of assignment law that an assignee’s rights derive from the assignor. That is, an assignee of a contract occupies the same legal position under a contract as did the original contracting party, he or she can acquire through the assignment no more and no fewer rights than the assignor ha d, and cannot recover under the assignment any more than the assignor could recover.”) (interna l quotations omitted). In the present case, the recoupment of payments is governed by the Provider Agreement between Harrogate and Blue Cross, not the employee benefits agreements betw een Blue Cross and its members. Thus, Blue Cross argues that a claim to enjoin recoup ments falls outside the scope of Harrogate’s assignment because it could not have been brought by the patient-assignors. Harrogate disagrees, claiming that Blue Cr oss is attempting to use its po st-payment recoupment procedure to make an end-run around the protections of ERISA.
Both parties root their arguments in the seminal Ninth Circuit case Blue Cross of California v. Anesthesia Care , 187 F.3d 1045 (9th Cir. 1999)

. In that case, the court considered a dispute between Blue Cross and medical providers relating to changes to the fee schedule laid
out in the Blue Cross provider agreements and held that the providers’ claims could not beNo. 15-5739 Brown, et al. v. BlueCross BlueShield of Tenn. Page 8

brought under ERISA because “the Providers are asserting cont ractual breaches, and related violations . . . that their patient-assignors coul d not assert [because] the patients simply are not parties to the provider agreements betw een the Providers and Blue Cross.” Id. at 1051.
While on its face the Ninth Circuit’s holding appears favorable to Blue Cross, the reasoning of the decision muddies the water. In determining th at the providers’ claims fell outside the scope of their assigned ERISA sta nding, the court focused on the dichotomy between “the right to payment, which might be said to depend on the patients’ assignments to the Providers” and “the amount, or level of payment, which depends on the terms of the provider agreements.” Id . (emphasis removed). As the Fifth Circ uit, which adopted the Ninth Circuit’s reasoning, clarified in Lone Star OB/GYN , “any determination of benefits under the terms of a plan—i.e., what is ‘medically necessary’ or a ‘Covered Service’—does fall within ERISA.”
Lone Star OB/GYN Associat es v. Aetna Health Inc. , 579 F.3d 525, 531 (5th Cir. 2009). This distinction between “right to payment”—which falls within a provider’s derivative standing for ERISA purposes—and “rate of payment”—which does not—has since been adopted by other
circuits as well. Conn. State Dental Ass’n , 591 F.3d 1337, 1350 (11th Cir. 2009); Pascack Valley , 388 F.3d at 403-404.
Seizing on this dichotomy, Harrogate argues th at the present case is a clear example of a dispute over its “right to payment” for services rendered. To this end, Harrogate correctly asserts
that if Blue Cross had made an initial advers e benefit determination and denied Harrogate’s claims upfront, Harrogate would have derivative standing to sue for payment, because the patients—the assignors of Harroga te’s status—could have brought that same suit. Thus, Harrogate argues that Blue Cross is attempting to evade ERISA by disguising an adverse benefit determination by recouping money post-paymen t, rather than denying it upfront.
We find Harrogate’s position colorable but ultimately unpersuasive. The fundamental basis for the Ninth Circuit’s ruling in Anesthesia Care was a distinction between claims that could have been brought by the pa tient-assignors and claims that could only have been brought by the healthcare providers. In the present case, the patient- assignors are not party to the Provider Agreement that governs the recoupment pro cess, and Blue Cross has no right to recoup payments for medical care made to its members. It is axiomatic that “[a]n assignee acquires noNo. 15-5739 Brown, et al. v. BlueCross BlueShield of Tenn. Page 9

greater rights than his assignor.” Rojas , 793 F.3d at 258-59 (internal quotations omitted). Because Harrogate’s present suit to enjoin Blue Cross’s recoupments is not a suit that Blue Cross members could have brought, it cannot be covered by those members’ assignment of benefits. While the ultimate effect on Harrogate may be the same (i.e. non-payment), Harrogate’s grievance with Blue Cross is uni quely its own; it is not derivative of Harrogate’s patients.
The conclusion that the present dispute falls outside the scope of Harrogate’s assigned standing is further bolstered by the fact that the patient-assig nors are unaffected by the outcome of this litigation. The Provi der Agreement states that
Providers may not seek payment from a Blue Cross Blue Shield of Tennessee Member where . . . [s]ervices rendered are considered investigational by Blue Cross Blue Shield of Tennessee and are therefore non-reimbursable, unless prior to rendering such services to the member, Provider has entered into a procedurespecific written agreement with the Member, which advised the Member of his/her payment responsibilities.
Provider Manual, at ¶ 14. Thus, Harrogate cannot pass the cost of Blue Cross’s recoupments back onto its patients. That the rights of insureds and their families are not at risk reinforces the inapplicability of ERISA. Congress enacted ERISA “to protect the economic security of American employees by regulating employer-sponsor ed pension and welfar e plans.” Peter K. Stris & Victor O’Connell, ERISA & Equity , 29 ABA J. Lab. & Emp. L. 125 (2013). Allowing Harrogate to litigate a contract ual dispute in federal court unde r ERISA is not “necessary to further the statute’s purposes.” Franchise Tax Bd. v. Constr. Laborers Vacation Trust , 463 U.S. 1, 21 (1983).

V. Conclusion
For the foregoing reasons we affirm the judgment of the district court.