complaint that, with regard to patient Gregg, the only claim the Wal-Mart Plan did not
make a direct payment to him for was a claim that was not assignable. § 12.
Therefore, Dr. DeBartolo’s assignment is not enforceable with regard to the one claim
he alleges the Wal-Mart Plan did not pay him for directly. Accordingly, he does not
have standing under ERISA to sue the Wal-Mart Plan. He may, however, have
standing with regard to the Walgreens Plan. The complaint does not contain any
information on whether the Walgreens Plan similarly had an anti-assignment clause.
As such, the court cannot determine at this stage in the litigation whether
Dr. DeBartolo has standing under ERISA to sue the Walgreens Plan. Thus, Count III
is dismissed for lack of standing, but Count VI is not.

Assuming Dr. DeBartolo does have standing with regard to the Walgreens Plan,
the information Dr. DeBartolo sought must be of the kind that must be disclosed under
ERISA, 29 U.S.C. § 1024(b)(4). The information Dr. DeBartolo requested from each
of the plans was the plan’s “usual and customary” charges for medical services. “Usual
and customary” charges is not one of the types of information expressly enumerated in
§ 1024(b)(4). The question thus becomes whether “usual and customary” charges falls
within that section’s catch-all provision: “other instrument under which the plan is
established or operated.”

The Seventh Circuit has adopted a narrow reading of this catch-all provision. See

Ames v. Am. Nat’! Can Co., 170 F.3d 751, 758-59 (7th Cir. 1999). The court rejected

-13-


(7th Cir. 1994). Nonetheless, in order to withstand a motion to dismiss, a complaint
must allege facts sufficiently setting forth the essential elements of the cause of action.
Lucien v. Preiner, 967 F.2d 1166, 1168 (7th Cir. 1992).

In reviewing a Rule 12(b)(6) motion to dismiss for failure to state a claim, the
court is limited to the allegations contained in the pleadings themselves. Documents
incorporated by reference into the pleadings and documents attached to the pleadings
as exhibits are considered part of the pleadings for all purposes. Fed.R. Civ.P. 10(c).
IN addition, “documents that a defendant attaches to a motion to dismiss are considered
apart of the pleadings if they are referred to in the plaintiff's complaint and are central
to her claim.” Venture Assoc. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th
Cir. 1993). With these principles in mind, the court turns to the instant motion.

DISCUSSION

The Counts in Dr. DeBartolo’s complaint can be divided into two basic groupings.
One grouping consists of Counts III and VI; the other consists of Counts I, II, IV, and V.
Although Counts III and VI of Dr. DeBartolo’s complaint are clearly based on 29 U.S.C.
§ 1132(c)(1) of ERISA, it is not clear upon which, if any, sections of ERISA

Dr. DeBartolo bases Counts I, II, [V, and V. The court will first address Counts I, II, IV,

and V.


Blue Cross, 947 F.2d at 1341 (finding state assignment statute preempted by ERISA);
St. Francis Regional Med. Ctr. v. Blue Cross and Blue Shield of Kansas, 49 F.3d 1460,
1464-65 (10th Cir. 1995) (finding that ERISA preempted any Kansas law affecting
assignability of insurance benefits with regard to ERISA plans at issue).

The next question thus becomes whether the Illinois law is “saved” from
preemption by the second ERISA preemption provision relevant in this case: the
“savings clause.” The “savings clause” empowers the states to regulate certain areas
of traditional state regulation. The “savings clause” provides: “nothing in this
subchapter shall be construed to alter, amend, modify, invalidate, impair, or supersede
any laws of the United States...or any rule or regulation issued under any such law.”
29 U.S.C. § 1144(b)(2)(A). Here, 215 ILCS 5/370(a) is part of the Illinois Insurance
Code and controls the terms of insurance contracts. Insurance is an area traditionally
regulated by the states. Therefore, 215 ILCS 5/370(a) satisfies the “savings clause”

and is not preempted. See FMC Corp. v. Holliday, 498 U.S. 52, 59-60 (1990) (finding

statute fell within “savings clause” because it directly controlled the terms of insurance
contracts by invalidating their subrogation provisions); Lopez v. Guardian Life Ins.
Co., 834 F. Supp. 251, 253-55 (N.D. Ill. 1993) (concluding Illinois Insurance Code

qualifies as a state insurance regulation and is thus not preempted by ERISA).


has three provisions relevant to this preemption analysis. First, ERISA’s preemption
clause provides that ERISA “shall supersede any and all State laws insofar as they may
now or hereafter relate to any employee benefit plan described in section 1003(a) of
this title and are not exempt under section 1003(b) of this title.” § 1144(a). The United
States Supreme Court has repeatedly instructed that ERISA’s preemption provision is
very broad and “clearly expansive.” See California Div. of Labor Standards

Enforcement v. Dillingham Constr., N.A., Inc., 519 U.S. 316 (1997). “It has a ‘broad

scope,’ and an ‘expansive sweep’; and...it is “broadly worded,’ ‘deliberately
expansive,’ and ‘conspicuous for its breadth.”” California Div., 519 U.S. at 324
(quoting New York State Conference of Blue Cross & Blue Shield Plans v. Travelers
Ins. Co., 514 U.S. 645, 656 (1995); Metro. Life Ins. Co. v. Massachusetts, 471 U.S.
724 (1985); Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 47 (1987); Ingersoll-Rand Co.
v. McClendon, 498 U.S.. 133, 138 (1990); Morales v. Trans World Airlines, Inc., 504

U.S. 374, 384 (1992).

A law “relates to” an employee benefit plan if it (1) has a connection with or

(2) reference to such a plan. California Div., 519 U.S. at 324; see also Arkansas Blue

Cross and Blue Shield v. St. Mary’s Hosp., Inc., 947 F.2d 1341, 1344-45 (8th Cir.

1992) (listing factors courts consider in determining whether a state statute “relates to”
ERISA plans). Where a state law “acts immediately and exclusively upon ERISA

plans...or where the existence of ERISA plans is essential to the law’s operation...that

-6-


I. Counts J, II, Il, & IV

In Count I, Dr. DeBartolo asserts 29 U.S.C. § 1132(a)(1)(B) as his jurisdictional
basis. However, Dr. DeBartolo titles Counts I, II, IV, and V as “Breach of Fiduciary and
Statutory Duty” and bases them on Illinois state law, 215 ILCS 5/370(a). It is unclear
whether his allegations of breach of fiduciary duty are based solely in the Illinois statutory
provision he cites or whether they are based on ERISA. If Dr. DeBartolo is attempting to
bring a breach of fiduciary duty claim under ERISA, his attempt fails. A breach of
fiduciary duty claim brought under ERISA must be brought under the ERISA enforcement
provisions that allow recovery for breach of fiduciary duty claims: 29 U.S.C. § 1132(a)(2)
or 29 U.S.C. § 1132(a)(3). The section Dr. DeBartolo cites, 29 U.S.C. § 1132(a)(1)(B),
allows plan participants and beneficiaries to bring an action to recover plan benefits. “An
action to recover from a breach of fiduciary duty occurred is distinct from an action to
recover plan benefits under section 1132(a)(1)(B)” of ERISA. Anweiler v. Am, Elec.
Power Serv., 3 F.3d 986, 992 (7th Cir. 1993) (citing McMahon v. McDowell, 794 F.2d
100, 109 (3rd Cir. 1986)); see Anderson v. Illinois Bell Tel. Co., 961 F. Supp. 1208, 1212
(N.D. Ill. 1997). Accordingly, if Dr. DeBartolo is attempting to base Counts I, II, IV, and
V on ERISA, his attempt fails because he has not sufficiently delineated which ERISA
section he is suing under and what he is suing for.

If Dr. DeBartolo is basing Counts I, II, IV, and V solely on 215 ILCS 5/370(a), as
his response to the defendants’ motions to dismiss seems to indicate, the question becomes

whether 215 ILCS 5/370(a) is, as all the defendants argue, preempted by ERISA. ERISA

-5-


With regard to plans that do not contain an express and clear anti-assignment
clause, the statute forces plan administrators to honor all assignments of benefits made
by plan beneficiaries. The statute thus takes from the plan administrator and gives to
plan beneficiaries control over who should receive payment. Because the state law at
issue shifts control over benefit distribution, the law “interferes with the administration
of [a plan].” Arkansas Blue Cross, 947 F.2d at 1341 (quoting Maclean v. Ford Motor
Co., 831 F.2d 723 (7th Cir. 1987)); see Egelhoff v. Egelhoff, 121 S.Ct. 1322, 1328
(2001) (stating payment of benefits is a central matter of plan administration).
Additionally, the statute imposes on plan administrators the “burden of determining
whether and to whom the plan beneficiaries have made assignments and then paying
the appropriate parties.” Arkansas Blue Cross, 947 F.2d at 1347. Furthermore,
application of the statute may have a negative effect on a plan’s ability to enter into
provider agreements with health care providers. Id. Moreover, absent preemption, the
statute would preclude both a uniform interstate benefit package if a plan wished to
provide one and nationally uniform plan administration because of differing state laws
affecting assignments in the context of ERISA plans. See Egelhoff, 121 S.Ct. at 1328
(stating “[u]niformity is impossible if plans are subject to different legal obligations in
different States.”). This type of interference with plan administration is “precisely the
burden that ERISA pre-emption was intended to avoid.” Id. Accordingly, the court

finds that 215 ILCS 5/370(a) falls within ERISA’s preemption clause. See Arkansas

-8-


Min: de Order Form (06/97)

a

United States District Court, Northern District of Illinois

Ni of Assigned Judge Sitti if Other
ror Magistrate Judge Charles P. Kocoras than Anigned Sudge
' CASE NUMBER 01 € 5940 DATE 11/8/2001
CASE DeBartolo vs. Blue Cross/Blue Shield of IL et al
TITLE

of the motion being presented.]

[ln the following box (a) indicate the party filing the motion, eg, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION:

DOCKET ENTRY:

(D im Filed motion of [ use listing in “Motion” box above.]

(2) oO Brief in support of motion due

(3) oO Answer brief to motion due, . Reply to answer briefdue__.

(4) Oo Ruling/Hearing on setfor___at.

(5) ia) Status hearing[held/continued to] {set for/re-set for]on__setfor__at

(6) QO Pretrial conference[held/continued to] [set for/re-set for]on__setfor___at____.
(7) Qo Trial[set for/re-set for]on__at

(8) o [Bench/Jury trial] [Hearing] held/continued to__at

(9) im This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OOFRCP4(m) (General Rule 21 OFRCP41(a)(1) O FRCP41(a)(2).

leave to amend his complaint within 30 days.

ab [For further detail see order attached to the original minute order.]

(io) «x [Other docket entry] Ruling held. ENTER MEMORANDUM OPINION: Defendants’ motions
(Docs 6-1 & 8-1) to dismiss are granted. The Plaintiff's complaint is dismissed. The Plaintiff is given

No notices required, advised in open court.

No notices required.

Notices mailed by judge's staff.

NOV..0.9.7001

Notified counsel by telephone.

| Docketing to mail notices. WO
oY | Mail AO 450 form.

Copy tqNudge/magistrate judge,

courtroom
SCT deputy's
initials

Date/time received in
central Clerk’s Office

amiling deputy initials



. Counts Ill & VI

In Counts III and VI, Dr. DeBartolo alleges that the Wal-Mart Plan and the
Walgreens Plan respectively, and together with BCBSI, are subject to fines under
section 502(c) of ERISA, 29 U.S.C. § 1132(c)(1), because they refused to provide him
with certain information he requested. Under 29 U.S.C. § 1132(c)(1), a plan
administrator is subject to fines if the plan administrator violates 29 U.S.C. § 1024(b)(4).
That section requires that:

[t]he administrator shall, upon written request of any participant or

beneficiary, furnish a copy of the latest updated summary plan description,

and the latest annual report, any terminal report, the bargaining agreement,

trust agreement, contract, or other instrument under which the plan is
established or operated.

29 U.S.C. § 1024(b)(4). Two issues arise with regard to the Counts Dr. DeBartolo bases
on this ERISA section. First, whether Dr. DeBartolo has standing to sue under 29 U.S.C.
§ 1132(c)(1) by virtue of the assignment of benefits he entered into with both patients.
Second, whether the information Dr. DeBartolo sought is of the kind that must be
disclosed under ERISA, 29 U.S.C. § 1024(b). The court addresses each issue in turn.

The Seventh Circuit has instructed that assignees have standing to sue ERISA
fiduciaries to recover benefits under 29 U.S.C. § 1132(a)(1)(B). See Decatur Mem’]

Hosp. v. Connecticut Gen. Life Ins., 990 F.2d 925, 926 (7th Cir. 1993); Kennedy v.

Connecticut Gen. Life Ins. Co., 924 F.2d 698, 700 (7th Cir. 1991). The Seventh Cireuit

explained that, once a plan participant validly assigns his benefits to a health care

-ll-


The “savings clause,” however, is in turn modified by the third provision
relevant to this preemption analysis: the “deemer clause.” The “deemer clause”
provides:

Neither an employee benefit plan...nor any trust established under

such a plan, shall be deemed to be an insurance company or other

insurer...or to be engaged in the business of insurance...for purposes

of any law of any State purporting to regulate insurance companies,
insurance contracts, banks, trust companies, or investment companies.

29 U.S.C. § 1144(b)(2)(B). This ERISA provision “exempt[s] self-funded ERISA
plans from state laws that ‘regulate insurance’ within the meaning of the savings
clause.” FMC Corp., 498 U.S. at 61; see Reilly v. Blue Cross and Blue Shield United
of Wis., 846 F.2d 416, 425 (7th Cir. 1988). Conversely, employee benefit plans that
are insured “remain[] an insurer for purposes of state laws purporting to regulate
insurance after application of the deemer clause.” FMC Corp., 489 U.S. at 61; see
Reilly, 846 F.2d at 425. An ERISA plan insured by an insurance company is “bound
by state insurance regulations,” while a self-funded, or self-insured, plan is not. FMC
Corp., 498 U.S. at 61 & 64; see Reilly, 846 F.2d at 425. In this case, both the Wal-
Mart Plan and the Walgreens Plan are self-funded ERISA plans. Accordingly,
although 215 ILCS 5/370(a) falls within the “savings clause,” it is nonetheless
preempted with regard to the Wal-Mart Plan and the Walgreens Plan. Thus, Counts
I, IL, IV, and V are dismissed with prejudice insofar as they are based on 215 ILCS

5/370(a).

-10-


‘reference’ will result in pre-emption.” California Div., 519 U.S. at 324. To determine
whether a statute has a “connection with” an ERISA plan, the court looks to the
objectives of the ERISA statute to determine if Congress understood that the state law
would survive preemption, and also to the nature and effect of the state law on ERISA
plans. See id. Congress’s objective was to ensure that plans and plan administrators
would be subject to a uniform body of benefits law. The “goal was to minimize the
administrative and financial burden of complying with conflicting directives among
States or between States and the Federal government...” Travelers, 514 U.S. at 656.
Thus, if a state law mandates employee benefit structures or their administration, it is
preempted by ERISA. Id. at 658.

Here, the Illinois law Dr, DeBartolo relies on “relates to” the ERISA plans at
issue and, therefore, falls within ERISA’s preemption provision. The Illinois law
provides:

Subject to the terms of the policy or any contract relating thereto...ifan

enrollee or insured of an insurer, health maintenance organization,

managed care plan, health care plan, preferred provider organization, or

third party administrator assigns a claim to a health care professional or

health care facility, then payment shall be made directly to the health
care professional or health care facility...

215 ILCS 5/370(a). Although the statute’s introductory language makes it subject to
the terms ofa particular plan, Dr. DeBartolo would have this court ignore this express
introductory language in the statute and find that the statute negates anti-assignment

clauses in plans. This court declines to do so.

-7-


Carlson. All the defendants either denied or failed to respond to his subsequent written
requests for payment. Additionally, Dr. DeBartolo requested from all of the defendants
information concerning how the defendants arrived at their determination of “usual and
customary” charges. These requests were similarly denied by all of the defendants.
Consequently, Dr. DeBartolo brought the instant action. His complaint contains six
Counts based on state law grounds and ERISA. All three of the defendants have
moved to dismiss.
LEGAL STANDARD

The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the

sufficiency of the complaint, not to decide the merits of the case. Triad Assoc., Inc. v.
Chicago Housing Auth., 892 F.2d 583, 586 (7th Cir. 1989). In ruling on a motion to
dismiss, the court must first construe the complaint’s allegations in the light most

favorable to the plaintiff and all well-pleaded facts and allegations in the plaintiff's

complaint must be taken as true. Bontkowski v. First Nat’ Bank of Cicero, 998 F.2d
459, 461 (7th Cir. 1993). The allegations of a complaint should not be dismissed for
failure to state a claim “unless it appears beyond a doubt that the plaintiff can prove no
set of facts in support of his claim which would entitle him to relief.” Conley v.
Gibson, 355 U.S. 41, 45-46 (1957); see also Hartford Fire Ins. Co. v. California, 509

U.S. 764 (1993); Sherwin Manor Nursing Ctr., Inc. v. McAuliffe, 37 F.3d 1216, 1219

. -3-


an interpretation of the catch-all provision as conferring upon beneficiaries “a right to
disclosure of all documents that provide information about a plan and its benefits.”
Ames, 170 F.3d at 758. Rather, the catch-all provision reaches “only formal legal

documents governing a plan.” Id. (citing Faircloth v. Lundy Packing Co., 91 F.3d 648,

654-54 (4th Cir. 1996); Bd. of Tr. of the CWA/ITU Negotiated Pension Plan v.

Weinstein, 107 F.3d 139, 142-45 (2d Cir. 1997)); see Brown v. Am. Life Holdings, Inc.,

190 F.3d 856, 860-62 (8th Cir. 1999); Hughes Salaried Retirees Action Comm. v. Adm’r

of Hughes Non-bargaining Ret. Plan, 72 F.3d 686 (9th Cir. 1995). “This is not to say,

of course, that companies have a permanent privilege against disclosing other

documents.” Ames, 170 F.3d at 759. “It means only that the affirmative obligation to

disclose materials under [§ 1024(b)(4)] punishable by [statutory] penalties, extends only
to a defined set of documents.” Id. Ifa particular situation proceeds to litigation,
information that does not fall within the disclosure provision will still be discoverable
in the ordinary course of litigation if the information meets the relevancy standards of
Federal Rule of Civil Procedure 26(b)(1). See id. at 759.

In deciding whether a particular type of information falls within this narrow
interpretation of the catch-all provision, a court must consider whether the information
is similar in nature to the information specifically set forth in the provision. See Hughes
Salaried Retirees, 72 F.3d at 689 (stating “it is well established that ‘words grouped in
a list should be given related meaning’”) (quoting Massachusetts v. Morash, 490 U.S.

107, 114-15 (1989)); Weinstein, 107 F.3d at 142-43. The types of documents that must

-14-


not been promulgated as regulation. See id. Moreover, the letter was “issued pursuant
to administrative procedure that specifies that “only the parties described in the request
for opinion may rely on the opinion, and they may rely on the opinion only to the extent
that...the situation conforms to the situation described in the request for opinion.” Id.
(quoting Employee Benefit Plans, Advisory Opinion Procedure, 41 Fed. Reg. 36281,
36283 (1976)). Accordingly, the court finds that the information Dr. DeBartolo requests
is not the type of information an ERISA plan administrator is required to disclosed under
29 U.S.C. § 1024(b)(4). See also Ehlmann v. Kaiser Found. Health Plan, 20 F. Supp.2d
1008 (N.D. Texas 1998) (finding that ERISA does not impose fiduciary duty on plan
administrators to disclose compensation arrangement with physicians).
CONCLUSION
For the foregoing reasons, the Plaintiff's complaint is dismissed. The Plaintiff

is given leave to amend his complaint within thirty days.

Charles P. Kocoras
United States District Judge

Dated: _November 8, 2001

-16-


BACKGROUND

The following facts are taken from the well-pled allegations in Dr. DeBartolo’s
complaint, which the court is obligated to accept as true for the purposes of this Rule
12(b)(6) motion to dismiss. Dr. DeBartolo is an Illinois licensed physician whose
practice is located in Sugar Grove, Illinois. Dr. DeBartolo provided services to two
patients, Erica Gregg (“Gregg”) and Kimberly Carlson (“Carlson”). Prior to obtaining
his services, both Gregg and Carlson assigned to Dr. DeBartolo the benefits due to
them under their respective health care plans. Gregg has been a participant of the Wal-
Mart Plan since January 1996; Carlson has been a participant of the Walgreens Plan
at all times relevant to this case. The Wal-Mart Plan is funded by Wal-Mart and is an
employee benefit plan within the meaning of the Employee Retirement Income
Security Act of 1974 (“ERISA”). The Walgreens plan is funded by Walgreens and is
also an employee benefits plan. Both plans are administered by BCBSI. Dr. DeBartolo
is not one of BCBSI’s network providers.

Dr. DeBartolo submitted claims to all of the defendants for the services he
provided these patients. He received payment for all the claims he submitted with
regard to Gregg, except for one claim that was electronically filed and upon which the
“Assignment of Benefits” box was marked “no.” Gregg’s Wal-Mart Plan contains an

anti-assignment provision. Dr. DeBartolo received no payments with regard to

-2-


UNITED STATES DISTRICT COURT

PAR orp RE
NORTHERN DISTRICT OF ILLINOIS OSCRETED
EASTERN DIVISION NOV 0 9 2001

DR. HANSEL M. DeBARTOLO, JR.,
Plaintiff,

vs. 01 C 5940
BLUE CROSS/BLUE SHIELD OF
ILLINOIS, ADMINISTRATIVE
COMMITTEE OF WAL-MART, INC.,
ASSOCIATES’ HEALTH AND
WELFARE PLAN, and WALGREENS
HEALTH PLAN,

rw SS Owe

Defendants.

MEMORANDUM OPINION
CHARLES P. KOCORAS, District Judge:

This matter is before the court on the three Defendants, Health Care Service
Corp., d/b/a Blue Cross Blue Shield of Illinois (“BCBSI”), Administrative Committee
of Wal-Mart, Inc. Associates Health and Welfare Plan (“Wal-Mart Plan”), and
Walgreens Health Plan (“Walgreens Plan”) Rule 12(b)(6) motions to dismiss Plaintiff
Dr. Hansel M. DeBartolo, Jr.’s (“Dr. DeBartolo”) complaint. For the reasons set forth

below the motion to dismiss is granted.


provider, the health care provider becomes a “beneficiary” within the meaning of

ERISA. See Kennedy, 924 F.2d at 700. An assignee’s right to sue under 29 U.S.C.

§ 1132(a)(1)(B) extends to 29 U.S.C. § 1132(a)(1). See Loretto Hosp. v. Local 100-A
Health and Welfare, Civ. No. 97 C 1353, 1998 WL 852878, at *9 (N.D. Ill. Dec. 4,
1998); Alexian Bros. Med. Ctr. v. South Lorain Merchants Health and Welfare Plan,
Civ. No. 98 C 0559, 1998 WL 911783 (N.D. Il. Dec. 24, 1998).

A health care provider’s right to recover under ERISA as an assignee, however,
depends on the health care provider having a valid, enforceable assignment agreement.
See Plumb v. Fluid Pump Serv., Inc., 124 F.3d 849, 863 (7th Cir. 1997); Kennedy, 924
F.2d at 700; Loretto Hosp., 1998 WL 852878 at *1; Alexian Bros. Med. Ctr., 1998 WL
911783, at *4. An assignment is not valid and enforceable if the plan contains an anti-
assignment provision. See Davidowitz v. Delta Dental Plan of California, 946 F.2d

1476 (9th Cir. 1991); Washington Hosp. Ctr. Corp. v. Group Hospitalization and Med.
Serv., 758 F. Supp. 750 (D.D.C. 1991); Parkside Lutheran Hosp. v. R.J. Zeltner &

Assoc., Inc., 788 F. Supp. 1002 (N.D. Ill. 1992); Neurological Res., P.C. v. Anthem

Ins. Co., 61 F. Supp.2d 840 (S.D. Ind. 1999); Lehigh Valley Hosp. v. UAW Local 259
Soc. Sec. Dep’t., Civ. No. A. 98-4116, 1999 WL 600539, at *1 (E.D. Pa. Aug. 10,

1999); City of Hope Nat’] Med. Ctr. v. Seguros De Servicios De Salud De Puerto Rico
Inc., 983 F. Supp. 68 (D.P.R. 1997). Here, the Wal-Mart Plan included an anti-

assignment clause. Comp. Exhibit E; J 12. Additionally, Dr. DeBartolo alleges in his

-12-


be disclosed according to 29 U.S.C. § 1124(b)(4) are formal documents that “plainly
set] out rights and duties.” Weinstein, 107 F.3d at 143. Indeed, the legislative history
indicates that ERISA’s disclosure requirements were meant to inform individual plan
participants and benefits as to where they “stand[] with respect to the plan — what
benefits he may be entitled to, what circumstances may preclude him from obtaining
benefits, what procedures he must follow to obtain benefits, and who are the persons to
whom the management and investment of his plan funds have been entrusted.” Id,
(quoting S.Rep. No. 127, 93d Cong., 2d Sess. (1974), reprinted in 1974 U.S.C.C.AN.
4838, 4863); Hughes Salaried Retirees, 72 F.3d at 690 (same).

In this case, the information Dr. DeBartolo requested regarding “usual and
customary” charges does not constitute a legal document governing the Walgreens Plan.
The information does not inform plan participants and beneficiaries about their rights
under the plan. Indeed, Dr. DeBartolo appears to desire the information in order to
determine whether or why the Walgreens Plan is discriminating between network
providers and non-network providers; a purpose having little, if anything, to do with a
plan participant’s rights under the plan.

Furthermore, Dr. DeBartolo has not referred this court to a single opinion where
acourt held that ERISA required that such information be disclosed to plan participants
or beneficiaries. While a court may find guidance in the Advisory Opinion he quotes,
Pension and Welfare Benefits Administration Opinion Letter 96-14A, (July 31, 1996),

the court is not bound by that letter. See Weinstein, 107 F.3d at 145-46. The letter has

-15-