American College of Emergency Physicians v. Blue Cross and Blue…

         USCA11 Case: 20-11511      Date Filed: 10/22/2020   Page: 1 of 12



                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 20-11511
                            Non-Argument Calendar
                          ________________________

                      D.C. Docket No. 1:18-cv-03414-MLB


AMERICAN COLLEGE OF EMERGENCY PHYSICIANS,
MEDICAL ASSOCIATION OF GEORGIA,

                                                              Plaintiffs-Appellants,

                                      versus

BLUE CROSS AND BLUE SHIELD OF GEORGIA, et al.,

                                                             Defendants-Appellees.
                          ________________________

                   Appeal from the United States District Court
                      for the Northern District of Georgia
                         ________________________
                                (October 22, 2020)
Before MARTIN, GRANT, and LUCK, Circuit Judges.

PER CURIAM:
      The American College of Emergency Physicians (ACEP) and the Medical

Association of Georgia (MAG) appeal the district court’s dismissal of their
            USCA11 Case: 20-11511          Date Filed: 10/22/2020      Page: 2 of 12



amended complaint against Blue Cross and Blue Shield of Georgia, Inc.; Blue

Cross Blue Shield Healthcare Plan of Georgia, Inc.; and Anthem Insurance

Companies, Inc. 1 for failure to state a claim and lack of standing. See Fed. R. Civ.

P. 12(b)(1); 12(b)(6). After careful review, we reverse the district court’s

judgment and reinstate ACEP and MAG’s claims brought under the Employee

Retirement Income Security Act (ERISA) and the Patient Protection and

Affordable Care Act (ACA) against Blue Cross Blue Shield.

                                                I.

      ACEP and MAG are organizations dedicated to promoting the “rights of

their physician members, and patients alike, for the delivery of the highest quality

of care.” ACEP represents over 38,000 emergency physicians, medicine residents,

and medical students. MAG is a non-profit organization that “works with

physicians, hospitals, insurers, and legislators in an effort to reform our health care

system.” The physicians who belong to ACEP and MAG require their patients,

including those insured by Blue Cross Blue Shield, to assign their health insurance

benefits to the physicians. These assignments include the right to “payment for

emergency care and treatment” and the “rights to appeal denials for emergency

department claims.”




      1
          We refer to Defendants collectively as “Blue Cross Blue Shield.”


                                                2
           USCA11 Case: 20-11511          Date Filed: 10/22/2020      Page: 3 of 12



       As set out in the ACA, a “prudent layperson” standard applies to all federal

health-care plans, all insurance plans governed by ERISA, and qualified health

insurance plans in state-operated health insurance exchanges. This standard

requires health plans to cover health services provided by an emergency

department whenever a patient has an “emergency medical condition.” An

emergency medical condition is defined as “a medical condition manifesting itself

by acute symptoms of sufficient severity (including severe pain) such that a

prudent layperson, who possesses an average knowledge of health and medicine,

could reasonably expect the absence of immediate medical attention” to result in

serious negative health outcomes.2 42 U.S.C. § 300gg-19a(b)(2)(A). It is notable

that this standard does not look to the ultimate diagnosis that the patient receives.

The only relevant considerations are the presenting symptoms and whether a

prudent layperson would think that emergency medical attention is necessary based

on those symptoms.

       In their complaint, MAG and ACEP allege that Blue Cross Blue Shield

violated the prudent layperson standard when it implemented a new emergency

department visit review process (the “ED review”) in 2017. That year Defendants

sent letters to their insureds in Georgia cautioning that they should only go to the



       2
         Another statutory provision clarifies what types of negative health outcomes. See 42
U.S.C. § 1395dd(e)(1)(A).


                                               3
           USCA11 Case: 20-11511        Date Filed: 10/22/2020     Page: 4 of 12



emergency room for emergencies, otherwise their insurance would not cover their

emergency room visits. Blue Cross Blue Shield also gave presentations

publicizing their new ED review policy. During at least one of these presentations,

Defendants confirmed that their new ED review process was “based on diagnosis

codes in addition to medical records.” The reviews are performed by a physician.

Blue Cross Blue Shield then began retrospectively denying payments to healthcare

providers by reclassifying certain emergency department visits as “non-emergent”

using the diagnostic codes that were assigned to the visits. In the second half of

2017, Blue Cross Blue Shield reviewed 10,000 claims (out of 51,000 received

claims) for ER visits in Georgia and denied 3,500 of them. At various times Blue

Cross Blue Shield has claimed that its ED review process appropriately applies the

prudent layperson standard.

       In October 2018 MAG and ACEP filed the First Amended Complaint (the

operative complaint here) against Defendants. The complaint alleged the ED

review process violated the prudent layperson standard and sought declaratory and

injunctive relief for violations of the ACA and ERISA.3 Blue Cross Blue Shield

filed a pre-answer motion to dismiss, asserting that MAG and ACEP failed to




       3
         ACEP and MAG do not contest the dismissal of their claims under the Emergency
Medical Treatment and Active Labor Act (EMTALA) and state and federal group health
regulations.


                                             4
          USCA11 Case: 20-11511        Date Filed: 10/22/2020     Page: 5 of 12



plead sufficient facts to support their allegation and that Plaintiffs lacked standing

to bring these claims.

       The district court granted Defendants’ motion and dismissed the complaint

with prejudice. The district court found ACEP and MAG’s pleadings insufficient

because they did not identify a specific instance in which “Defendants’ ED Review

improperly applies the prudent layperson standard.” The district court also relied

upon Defendants’ claims that their ED review process did not violate the prudent

layperson standard. The district court found that the members of ACEP and MAG

lacked standing because the assignment of insurance plan benefits to them did not

give them standing to seek equitable relief and because Plaintiffs failed to allege

how the ED review process harmed their members.

      Plaintiffs timely appealed.

                                            II.

       “We review de novo the district court’s grant of a Rule 12(b)(6) motion

to dismiss for failure to state a claim, accepting the complaint’s allegations as true

and construing them in the light most favorable to the plaintiff.” Chaparro v.

Carnival Corp., 

693 F.3d 1333

, 1335 (11th Cir. 2012) (per curiam) (quotation

marks omitted). To prevent dismissal under Rule 12(b)(6), a plaintiff must allege

sufficient facts to state a claim for relief that is “plausible on its face.” Bell Atl.

Corp. v. Twombly, 

550 U.S. 544

, 570, 

127 S. Ct. 1955

, 1974 (2007). Claims are



                                            5
          USCA11 Case: 20-11511        Date Filed: 10/22/2020     Page: 6 of 12



plausible when the plaintiff pleads facts that allow the court “to draw the

reasonable inference that the defendant is liable for the misconduct alleged.”

Ashcroft v. Iqbal, 

556 U.S. 662

, 678, 

129 S. Ct. 1937

, 1949 (2009). A pleading

must offer more than “labels and conclusions or a formulaic recitation of the

elements of a cause of action,” but “detailed factual allegations” are not needed.

Id. at 

678, 129 S. Ct. at 1949

(quotation marks omitted).

      We review de novo the district court’s grant of a Rule 12(b)(1) motion to

dismiss for lack of subject matter jurisdiction. Stalley ex rel. United States v.

Orlando Reg’l Healthcare Sys., Inc., 

524 F.3d 1229

, 1232 (11th Cir. 2008) (per

curiam). The plaintiff need only have “sufficiently alleged a basis of subject

matter jurisdiction, and the allegations in his complaint are taken as true.”

Id. (quotation marks omitted).

                                           III.

      The district court erred in dismissing ACEP and MAG’s complaint for

failure to state a claim. The district court faulted Plaintiffs for failing to identify

specific instances in which “Defendants’ ED Review improperly applies the

prudent layperson standard.” But ACEP and MAG are not challenging individual

denials. They challenge the ED review policy writ large. Plaintiffs allege the ED

review process was “based on diagnosis codes in addition to medical records.”

The ED review is also conducted by a physician, not a layperson. The prudent



                                            6
         USCA11 Case: 20-11511       Date Filed: 10/22/2020    Page: 7 of 12



layperson standard asks what someone with “average knowledge of health and

medicine” would think is an emergency based on the severity of their “acute

symptoms.” 42 U.S.C. § 300gg-19a(b)(2)(A). A physician’s professional

assessment of symptoms is irrelevant. The regulations do not call upon a medical

doctor to put aside her years of training to evaluate what someone without any

such training would view as a medical emergency. The diagnosis that the patient

ultimately receives is irrelevant. It is plausible that an ED review process

incorporating both of those elements—a physician assessment and patient

diagnosis—violates the prudent layperson standard. ACEP and MAG have thus

alleged facts about the ED review process as a whole that allow a court to “draw

the reasonable inference” that Defendants violated the standard. See Iqbal, 556

U.S. at 

678, 129 S. Ct. at 1949

.

      The district court also gave great weight to ACEP and MAG’s

acknowledgement of Blue Cross Blue Shield’s claim that it is complying with the

prudent layperson standard. Defendants’ conclusory statements about their legal

compliance has nothing to do with whether ACEP and MAG have plausibly

alleged that Blue Cross Blue Shield violated the law. Because ACEP and MAG




                                          7
           USCA11 Case: 20-11511           Date Filed: 10/22/2020       Page: 8 of 12



have otherwise met their burden, this assertion is no basis for dismissing their

claims.4

                                               IV.

       The district court also erred when it found that ACEP and MAG lacked

standing to bring their claims under ERISA and the ACA. “An organization has

standing to enforce the rights of its members when its members would otherwise

have standing to sue in their own right, the interests at stake are germane to the

organization’s purpose, and neither the claim asserted nor the relief requested

requires the participation of individual members in the lawsuit.” Fla. State

Conference of N.A.A.C.P. v. Browning, 

522 F.3d 1153

, 1160 (11th Cir. 2008)

(quotation marks omitted).5 When an organization seeks injunctive relief,

“individual participation of the organization’s members is not normally necessary.”

Id. (quotation marks omitted).

6


       4
         Blue Cross Blue Shield also argues that Plaintiffs failed to contest the district court’s
dismissal of their claims for litigation expenses under ERISA and for injunctive relief under the
ACA and ERISA. But the district court made no such holding. It dismissed those claims solely
on the basis that Plaintiffs failed to state a claim under the ACA and ERISA. The district court
did not provide alternative, independent grounds for dismissing those claims and ACEP and
MAG challenge any assertion that they failed to state a claim for relief under ERISA and the
ACA. Thus ACEP and MAG did not abandon their claims for injunctive relief and litigation
expenses.
       5
        No one disputes that the interests at stake here are germane to ACEP and MAG’s
purposes.
       6
         Plaintiffs also pled facts related to their injury as organizations and argued that in
addition to associational standing they also had organizational standing based on a diversion of
resources theory. The district court did not consider this argument or those facts at all.


                                                 8
           USCA11 Case: 20-11511           Date Filed: 10/22/2020       Page: 9 of 12



       The district court first found that Plaintiffs’ members did not themselves

have standing to sue. “[I]t is well-established in this and most other circuits that a

healthcare provider may acquire derivative standing to sue under ERISA by

obtaining a written assignment from a ‘participant’ or ‘beneficiary’ of his right to

payment of medical benefits.” Conn. State Dental Ass’n v. Anthem Health Plans,

Inc., 

591 F.3d 1337

, 1347 (11th Cir. 2009). Here ACEP and MAG allege that Blue

Cross Blue Shield’s insureds have assigned their benefits to ACEP and MAG’s

member physicians. Thus their members have acquired derivative standing to sue

under ERISA.

       The district court determined that the assignment of the right to payment and

to appeal denials did not include the right to seek equitable relief, which is the only

type of relief that ACEP and MAG seek here. In so finding the district court

ignored precedent to the contrary. In Connecticut State Dental, this Court

concluded that an assignment of the right to payment of medical benefits under a

health insurance plan allowed a dentists’ professional organization to sue a plan

provider for declaratory and injunctive relief. Conn. State 

Dental, 591 F.3d at 1347

. In Cagle v. Bruner, 

112 F.3d 1510

(11th Cir. 1997), we held that a hospital

had standing to seek declaratory relief against a health benefit fund because the




Nonetheless, because we find that Plaintiffs sufficiently pled associational standing, we need not
reach that issue.


                                                9
           USCA11 Case: 20-11511         Date Filed: 10/22/2020       Page: 10 of 12



beneficiaries assigned the hospital their “right to receive payment of benefits.”

Id. at 1515.

The assignment of the right to payment includes the right to seek

equitable relief.7

       Blue Cross Blue Shield argues on appeal that the rule from Connecticut

State Dental and Cagle only applies to claims under 29 U.S.C. § 1132(a)(1)(B), not

claims brought, as ACEP and MAG did here, under 29 U.S.C. § 1132(a)(3). Not

so. As the Court stated in Cagle, its holding that an assignment of benefits confers

derivative standing was based on its assessment that “neither § 1132(a) nor any

other ERISA provision prevents derivative standing based upon an assignment of

rights from an entity listed in that subsection.” 

Cagle, 112 F.3d at 1515

. The

Court’s holding applies not only to § 1132(a) in its entirety, but also to the whole

of ERISA. ACEP and MAG brought their claims under § 1132(a) and thus have

derivative standing to seek equitable relief from Defendants.

       The district court further faulted Plaintiffs for failing to “identify at least one

member who has been or will be imminently injured.” But ACEP and MAG

identified a whole category of its members who are harmed and will be harmed by

Defendants’ new policy: all members whose patients are insured by Defendants. 8


       7
          Blue Cross Blue Shield points to unpublished cases they say suggest otherwise. Those
cases are not binding on our Court.
        8
          To the extent that the district court’s criticism is that ACEP and MAG failed to name
which specific members are harmed, we note that for prospective equitable relief, organizational
plaintiffs “need not ‘name names’ to establish standing.” Ga. Republican Party v. S.E.C., 

888 F.3d 1198

, 1204 (11th Cir. 2018). An organizational plaintiff seeking retrospective relief may be


                                               10
          USCA11 Case: 20-11511          Date Filed: 10/22/2020      Page: 11 of 12



The district court also found that ACEP and MAG failed to allege how their

members were harmed by the ED review policy. To the contrary, ACEP and MAG

alleged that the new ED review policy harms their members because it resulted in

and will continue to result in “retrospective denials of payment for emergency

department care.” Their doctor members are harmed because they are not being

paid. Thus ACEP’s members “would otherwise have standing to sue in their own

right.” See Fla. State Conference of 

N.A.A.C.P., 522 F.3d at 1160

(quotation

marks omitted).

       Blue Cross Blue Shield also argues here that ACEP failed to establish

associational standing because the requested injunctive and declaratory relief

would require individualized determinations about whether each insured has

assigned their benefits; whether each plan is governed by the relevant statutes; and

whether each denial of a claim for emergency services violated the prudent

layperson standard. But again, ACEP and MAG are not challenging individual

denials of claims. Instead they allege that the ED review policy as a whole is

illegal. Assessing their challenge to the policy does not require individualized

determinations as to each denial. Neither would crafting an injunction halting




required to list at least one name, but only “after some discovery.” Fla. State Conference of

N.A.A.C.P., 522 F.3d at 1160

. In other words, requiring specific names at the motion to dismiss
stage is inappropriate.


                                              11
         USCA11 Case: 20-11511      Date Filed: 10/22/2020   Page: 12 of 12



implementation of the policy or a declaration that the policy violates the prudent

layperson standard require individualized assessments.

      For these reasons, Plaintiffs have associational standing.

      REVERSED AND REMANDED.




                                         12
Share Review:
Yes it is. Based on the user review published on Beware.org, it is strongly advised to avoid American College of Emergency Physicians v. Blue Cross and Blue Shield of Georgia, Inc. in any dealing and transaction.
Not really. In spite of the review published here, there has been no response from American College of Emergency Physicians v. Blue Cross and Blue Shield of Georgia, Inc.. Lack of accountability is a major factor in determining trust.
Because unlike Beware.org, other websites get paid to remove negative reviews and replace them with fake positive ones.
American College of Emergency Physicians v. Blue Cross and Blue Shield of Georgia, Inc. is rated 1 out of 5 based on the reviews submitted by our users and is marked as POOR.
Never trust websites which offer a shady ‘advocacy package’ to businesses. Search for relevant reviews on Ripoff Report and Pissed Consumer to see more unbiased reviews.


>