![]() The claim form has two sections that concern 3 the assignment of payment for medical benefits. ![]() 15 2150 cv 1 form to Aetna for each surgery (Centers for Medicare and Medicaid 2 Services Form 1500). Aetna does not dispute that this is an industry standard schedule. McCulloch then submitted a health insurance claim McCulloch alleges that he charges UCR rates in accordance with those established by Ingenix, now known as the OptumInsight/FAIRPLAN program. The Aetna representative stated that 11 McCulloch would be reimbursed at seventy percent of the usual, 12 customary, and reasonable (“UCR”) rate for the knee surgeries and 13 that this rate would be based on an industry standard schedule.2 14 Relying on Aetna’s promise of reimbursement, McCulloch 15 performed the two surgeries and billed Aetna at the UCR rate for a 16 total of $66,048. An Aetna 6 representative informed McCulloch’s staff that the patient was 7 covered by a health care plan administered by Aetna, that the plan 8 provided for payment to out of network physicians, and that the 9 plan covered the surgical procedures that McCulloch would be 10 providing for the patient. 3 Before performing the patient’s surgeries, McCulloch’s office 4 staff called a number listed on the patient’s Aetna insurance card to 5 obtain information about the patient’s coverage. 15 2150 cv 1 by Aetna as a participating physician who has agreed to abide by a 2 set fee schedule. We refer to all of the defendants collectively as “Aetna.” 1 4 No. McCulloch is an “out of network” provider under this 14 plan-he does not have a contract with Aetna and is not identified In addition to Aetna Inc., the following subsidiaries were named as defendants in this action: Aetna Health Inc., Aetna Health and Life Insurance Company, Aetna Life Insurance Company, and Aetna Health Insurance Company of New York. 10 McCulloch, an orthopedic surgeon, seeks reimbursement from 11 Aetna for performing two knee surgeries on a patient who is a 12 member of an Aetna administered health care plan that is governed 13 by ERISA. and several of its 9 wholly owned subsidiaries1 in New York State Supreme Court. McCulloch (“McCulloch”) filed this 8 action against defendant appellee Aetna Inc. BACKGROUND 5 6 Plaintiff appellant McCulloch Orthopaedic Surgical Services, 7 PLLC, a/k/a Dr. We hold that ERISA does not completely 4 preempt such a claim. 15 2150 cv 1 the health care plan and (2) received an independent promise from 2 the insurer that he would be paid for certain medical services 3 provided to the insured. §§ 1001 et seq., 21 completely preempts an “out of network” health care provider’s 22 promissory estoppel claim against a health insurer where the 23 provider (1) did not receive a valid assignment for payment under 3 No. WALKER, JR., Circuit Judge: 19 We consider in this case whether the Employee Retirement 20 Income Security Act of 1974 (“ERISA”), 29 U.S.C. Lee, on the brief), Connell Foley LLP, New York, NY, for Defendants Appellees. ![]() McCulloch, New York, NY, for Plaintiff Appellant. We hold that ERISA does not completely 7 preempt such a claim. 15 2150 cv 1 completely preempts an “out of network” health care provider’s 2 promissory estoppel claim against a health insurer where the 3 provider (1) did not receive a valid assignment for payment under a 4 health insurance plan and (2) received an independent promise from 5 the insurer that he would be paid for certain medical services 6 provided to the insured. _ We consider in this case whether the Employee Retirement 33 Income Security Act of 1974 (“ERISA”), 29 U.S.C. _ Before: WALKER, CALABRESI, and HALL, Circuit Judges. _ Appeal from the United States District Court for the Southern District of New York. AETNA INC., DBA AETNA HEALTH AND LIFE INSURANCE CO., et al., Defendants Appellees. 15 2150 cv MCCULLOCH ORTHOPAEDIC SURGICAL SERVICES, PLLC, A/K/A DR. ![]() 1 2 In the 3 United States Court of Appeals 4 For the Second Circuit 32 _ AUGUST TERM, 2015 ARGUED: APDECIDED: No. 15 2150 cv McCulloch Orthopaedic Surgical Services, PLLC v.
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