DB Healthcare, LLC v. Blue Cross Blue Shield of Arizona, Inc.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DB HEALTHCARE, LLC, DBA Metro No. 14-16518

Center Health Care; AVD

HEALTHCARE, LLC, DBA Mountain D.C. No.

Vista Health Center; MH 2:13-cv-01558-

HEALTHCARE, LLC, DBA North NVW

Health Center; SV HEALTHCARE,

LLC, DBA White Rock Health

Center; QUINN CHIROPRACTIC, LLC,

DBA White Rock Health Center; CK

HEALTHCARE, LLC, DBA Avondale

Health Center; TM HEALTHCARE,

LLC, DBA Avondale Health Center;

KM HEALTHCARE, LLC, DBA

Avondale Health Center; KD

CHIROPRACTIC, LLC, DBA White

Rock Health Center; EW

HEALTHCARE, LLC, DBA Greenway

Health Center; PW HEALTHCARE,

LLC, DBA Greenway Health Center;

MARY MELISSA HANDS; VICTORIA

TWEEDY; ROBERT ALEXANDER;

SIMRAN SETHI; SARAH QUINN;

TERESA MELOCHE; ALLISON

WOODWORTH; JOE MELBY; CRYSTY

FRICK; PATRICIA PARADIS,

Plaintiffs-Appellants,

v.

2 DB HEALTHCARE V. BLUE CROSS BLUE SHIELD

BLUE CROSS BLUE SHIELD OF

ARIZONA, INC.,

Defendant-Appellee.

Appeal from the United States District Court

for the District of Arizona

Neil V. Wake, District Judge, Presiding

ADVANCED WOMEN’S HEALTH No. 14-16612

CENTER, INC.,

Plaintiff-Appellant, D.C. No.

1:13-cv-01145-

v. AWI-JLT

ANTHEM BLUE CROSS LIFE AND

HEALTH INSURANCE COMPANY, OPINION

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of California

Anthony W. Ishii, Senior District Judge, Presiding

Argued and Submitted July 7, 2016

San Francisco, California

Filed March 22, 2017

DB HEALTHCARE V. BLUE CROSS BLUE SHIELD 3

Before: Marsha S. Berzon, and N. Randy Smith, Circuit

Judges, and Dana L. Christensen,* Chief District Judge.

Opinion by Judge Berzon

SUMMARY**

Employee Retirement Income Security Act

The panel affirmed two district court judgments

dismissing ERISA actions brought by health care providers

designated to receive direct payments from employee health

plan administrators for medical services.

The panel held that neither direct statutory authority nor

derivative authority through assignment authorized the health

care providers to bring suit in federal court under ERISA’s

civil enforcement provisions. Agreeing with other circuits,

the panel reaffirmed that health care providers are not health

plan beneficiaries who may sue for declaratory relief and

money damages under ERISA § 502(a)(1)(B) or injunctive

relief under ERISA § 502(a)(3). Rather, a health care

provider must bring claims derivatively, relying on its

patients’ assignments of their benefit claims. The panel held

that the health care providers here, however, lacked derivative

authority to sue, given the nature of the governing agreements

*

The Honorable Dana L. Christensen, United States Chief District

Judge for the District of Montana, sitting by designation.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

4 DB HEALTHCARE V. BLUE CROSS BLUE SHIELD

and of the purported assignments. In one case, the governing

employee benefit plans contained non-assignment clauses that

overrode any purported assignments. In the other case,

although the provider agreement permitted assignment, and

payment authorization forms could be construed as assigning

the provider limited rights, the provider’s claims fell outside

the scope of the assigned rights.

COUNSEL

Richard J. Quadrino (argued), Harold J. Levy, and Eugene R.

Pagano, Quadrino Law Group P.C., Melville, New York; Tod

F. Schleier and Bradley H. Schleier, Schleier Law Offices,

Phoenix, Arizona; for Plaintiffs-Appellants.

Anthony F. Shelley (argued), Michael N. Khalil, and Adam

P. Feinberg, Miller & Chevalier Chartered, Washington,

D.C., for Defendant-Appellee Blue Cross Blue Shield of

Arizona, Inc.

Eileen R. Ridley (argued), Alan R. Ouellette, and Michael A.

Naranjo, Foley & Lardner LLP, San Francisco, California, for

Defendant-Appellee Anthem Blue Cross Life and Health

Insurance Company.

DB HEALTHCARE V. BLUE CROSS BLUE SHIELD 5

OPINION

BERZON, Circuit Judge:

These two cases involve reimbursement disputes between

health care providers and employee health benefit plan

administrators. We decide the cases together because they

raise a common central issue: whether a health care provider

designated to receive direct payment from a health plan

administrator for medical services is authorized to bring suit

in federal court under the Employee Retirement Income

Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq.

We consider two separate potential bases for such authority

under ERISA’s civil enforcement provisions: direct statutory

authority and derivative authority through assignment.

Although the contractual relationships between the health

care providers and the plan administrators, and between the

providers and the patients, in these two cases differ in

relevant ways, we conclude in both cases that the providers

cannot enforce ERISA’s protections in federal court on either

basis.

I. Background

The Plaintiffs-Appellants in these cases are health care

providers (“Providers”) who furnish medical services to

subscribers1 of employee health benefit plans. The benefit

plans are governed by either ERISA (the private employer

plans) or the Patient Protection and Affordable Care Act

1

We use the term “subscribers” to refer to individuals covered under

the health benefit plans. We avoid the terms “participant” and

“beneficiary” to describe these individuals because the precise meaning

of those terms is central to this dispute.

6 DB HEALTHCARE V. BLUE CROSS BLUE SHIELD

(“ACA”) (the government employer plans). The Plaintiffs in

DB Healthcare are twelve medical facilities located in and

around Phoenix, Arizona, and ten nurse practitioner

employees of those facilities (collectively, “DB Healthcare

Providers”). The Plaintiff in Advanced Women’s Health

Center is a medical facility in Bakersfield, California (“the

Center”). Defendants-Appellees Blue Cross Blue Shield of

Arizona, Inc. (“Blue Cross”) and Anthem Blue Cross Life

and Health Insurance Company (“Anthem”) are health

insurers, plan administrators, and/or claims administrators for

the relevant employee benefit plans.

The reimbursement disputes in these cases share a number

of common facts. In 2010 and 2011, Providers performed

certain blood tests and related services for plan subscribers

and submitted reimbursement claims to either Blue Cross or

Anthem. Blue Cross and Anthem processed the claims and

reimbursed Providers. On completion of post-payment

reviews, however, the plan administrators determined that

Providers were not entitled to reimbursement for the blood

tests, albeit for different reasons. In DB Healthcare, Blue

Cross determined that the tests were investigational and thus

excluded from coverage. In Advanced Women’s Health

Center, Anthem determined that the Center used faulty

practices to bill for the tests and so was not entitled to

reimbursement.

At that point, Blue Cross and Anthem informed Providers

that the prior reimbursements for the blood tests were in error

and requested repayments totaling $237,000 and $295,912.87,

respectively. Providers disputed Blue Cross and Anthem’s

authority retroactively to recoup the reimbursements and

refused to pay. Blue Cross responded by restating its

payment demand to DB Healthcare Providers, threatening to

DB HEALTHCARE V. BLUE CROSS BLUE SHIELD 7

withhold recredentialing for the in-network nurse

practitioners, refusing to credential newly hired nurses, and

threatening to terminate the relevant provider agreements.

Anthem went one step further, withholding reimbursements

from Advanced Women’s Health Center in 2013 for unrelated

claims as a means of recouping the disputed past payments.

Several types of contracts govern the relationships

between the subscribers, the plan administrators, and the

providers in each case: (1) Employee benefit plans provide

the terms of the insurance provided to the subscribers.

(2) Payment authorizations or assignment of benefits forms

executed by subscribers assign some rights to the providers.

(3) Provider agreements govern the relationships between the

providers and the plan administrators. Each of these contracts

is relevant to our analysis.

In DB Healthcare, the governing employee benefit plans

prohibit patients from assigning any of their rights under the

plans to third parties.2 Despite this prohibition, DB

Healthcare Providers’ patients executed “assignment of

benefits” forms purporting to assign certain plan rights to DB

Healthcare Providers. Unlike in DB Healthcare, the benefits

plans in Advanced Women’s Health Center do not prohibit

assignment of benefits. The Center’s patients signed forms

2

The record does not include all the employee benefit plans at issue

in the case. DB Healthcare Providers submitted an exemplar plan in

support of their complaint. The sample plan includes a non-assignment

clause, which reads, in relevant part: “The benefits contained in this plan,

and any right to reimbursement or payment arising out of such benefits,

are not assignable or transferable, in whole or in part, in any manner or to

any extent, to any person or entity. . . .” The district court relied on this

provision in the exemplar plan to find that the governing plans contained

valid non-assignment clauses. This finding is not contested on appeal.

8 DB HEALTHCARE V. BLUE CROSS BLUE SHIELD

authorizing Anthem to pay the Center directly for health care

services rendered to plan subscribers. Those forms read: “I

Hereby Authorize My Insurance Benefits To Be Paid Directly

to the Physician And Acknowledge That I Am Financially

Responsible for Any Unpaid Balance.”

The provider agreements grant some health care providers

in-network status for the benefit plans administered by

Anthem or Blue Cross. Five of the ten nurse practitioner

Providers are credentialed by Blue Cross as in-network

providers and the five others seek such credentialing.

Advanced Women’s Health Center is an in-network provider

for health plans administered by Anthem. In-network

providers agree to a fixed schedule of fees for services and

can bill the insurers directly for health care services rendered

to plan subscribers. In fact, the provider agreements require

Providers to seek payment for medical services rendered only

from the relevant plan administrator, not from patients

(subject to limited exceptions).3

In response to recoupment strategies by Blue Cross and

Anthem, DB Healthcare Providers and the Center,

respectively, filed complaints in federal district court. The

specific claims in DB Healthcare and Advanced Women’s

Health Center differ slightly, although both sets of providers

generally allege that the claims administrators violated

ERISA when they unilaterally determined that the blood

testing procedures and related services were not reimbursable

and used various strategies to recoup payments already made.

3

In DB Healthcare, just the in-network nurse practitioners, not the

out-of-network practitioners or the facilities themselves, have provider

agreements with Blue Cross.

DB HEALTHCARE V. BLUE CROSS BLUE SHIELD 9

DB Healthcare Providers alleged two causes of action

under ERISA in their complaint.4 First, they sought

injunctive relief regarding Blue Cross’s refusal to credential

nurse-practitioners and its threat to cancel provider

agreements, alleging that Blue Cross violated ERISA’s

prohibition against retaliation for the exercise of rights

guaranteed by employee benefit plans. See 29 U.S.C. § 1140.

Second, they sought a declaratory judgment that Blue Cross’s

recoupment efforts violate the ERISA Claims Procedure,

29 U.S.C. § 1133, and the ERISA Claims Procedure

regulation, 29 C.F.R. § 2560.503-1, which provide procedural

protections for ERISA claimants. Specifically, DB

Healthcare Providers alleged that Blue Cross violated the

requirement that plan administrators notify claimants of

adverse benefit determinations within thirty days of receiving

a claim.

Advanced Women’s Health Center also challenged

Anthem’s recoupment efforts, asserting four causes of action

in its complaint, three under ERISA and one under the

Declaratory Judgment Act, 28 U.S.C. § 2201. Under ERISA,

which governs private employer plans, the Center: (1) sought

a declaratory judgment that Anthem’s reversal of benefit

determinations and offsetting of asserted overpayment against

other reimbursements violate ERISA’s Claims Procedure,

29 U.S.C. § 1133, and the ERISA Claims Procedure

regulation, 29 C.F.R. § 2560.503-1, and an injunction

precluding such offsetting; (2) sought monetary damages for

past recoupments; and (3) requested declaratory and

4

DB Healthcare Providers also brought a state law breach of contract

claim with respect to government employee benefit plans. The district

court declined to exercise supplemental jurisdiction over the state law

claim, dismissing the claim without prejudice.

10 DB HEALTHCARE V. BLUE CROSS BLUE SHIELD

injunctive relief regarding Anthem’s alleged violation of its

fiduciary duty to plan beneficiaries and participants.

Invoking the Declaratory Judgment Act, the Center alleged

that the government employee benefit plans administered by

Anthem are also subject to the ERISA Claims Procedure

regulation and sought a declaratory judgment that Anthem’s

recoupment of payments for claims made under those plans

was unlawful.

The district courts in both Advanced Women’s Health

Center and DB Healthcare dismissed the claims, holding that

the health care providers lacked authority to bring claims

under ERISA. In Advanced Women’s Health Center, the

district court also dismissed the claim brought under the

Declaratory Judgment Act, holding that government plans

are, by their terms, exempt from the ERISA Claims

Procedure regulation. The providers in both cases timely

appealed.

II. Discussion

A.

ERISA’s civil enforcement provisions specify which

categories of individuals and entities may enforce each of the

statute’s protections. The relevant provisions state: “(a) A

civil action may be brought– (1) by a participant or

beneficiary– (A) for the relief provided for in subsection

(c) of this section, or (B) to recover benefits due to him under

the terms of his plan, to enforce his rights under the terms of

the plan, or to clarify his rights to future benefits under the

terms of the plan; . . . (3) by a participant, beneficiary, or

fiduciary (A) to enjoin any act or practice which violates any

provision of this subchapter or the terms of the plan, or (B) to

DB HEALTHCARE V. BLUE CROSS BLUE SHIELD 11

obtain other appropriate equitable relief (i) to redress such

violations or (ii) to enforce any provisions of this subchapter

or the terms of the plan.” ERISA § 502(a), 29 U.S.C. § 1132

(a)(1),(3). Providers maintain that they are “beneficiar[es]”

for purposes of § 502(a) and so may bring suit directly under

that statute.

We note, preliminarily, that our cases discussing whether

a plaintiff is authorized to sue under ERISA’s civil

enforcement provisions often refer to the question as whether

the plaintiff has “standing” or “statutory standing” to sue

under ERISA. See e.g., Harris v. Amgen, Inc., 573 F.3d 728,

732 (9th Cir. 2009) (examining whether a plaintiff has

“standing under ERISA”); Davidowitz v. Delta Dental Plan

of Cal., Inc., 946 F.2d 1476, 1477 (9th Cir. 1991) (“Under

ERISA, a beneficiary has standing to bring a civil action for

non-payment.”). This common shorthand suggests that

subject matter jurisdiction may also be at stake. It is not. The

question whether Congress has granted a private right of

action to a particular plaintiff is not a jurisdictional

requirement. “[A] dismissal for lack of statutory standing

[under ERISA] is properly viewed as a dismissal for failure

to state a claim rather than a dismissal for lack of subject

matter jurisdiction.” Vaughn v. Bay Envtl. Mgmt., Inc.,

567 F.3d 1021, 1024 (9th Cir. 2009).5 For clarity on this

point, we avoid in this opinion references to Providers’

“standing,” and so turn to the question whether Providers may

bring suit directly under ERISA § 502(a).

5

The district court in Advanced Women’s Health Center dismissed

the Center’s claims for lack of subject matter jurisdiction under Federal

Rule of Civil Procedure 12(b)(1). That error, however, does not affect our

analysis, because we review dismissals under both Rule 12(b)(1) and Rule

12(b)(6) de novo. See Vaughn, 567 F.3d at 1024.

12 DB HEALTHCARE V. BLUE CROSS BLUE SHIELD

“[Section] 502(a) [of ERISA] . . . demonstrates Congress’

care in delineating the universe of plaintiffs who may bring

certain civil actions.” Harris Tr. & Sav. Bank v. Salomon

Smith Barney, Inc., 530 U.S. 238, 247 (2000). With regard to

the plaintiffs specified in § 502(a), “Congress presumably

determined that a right to enter federal court was necessary to

further the statute’s purposes.” Franchise Tax Bd. v. Constr.

Laborers Vacation Tr., 463 U.S. 1, 21 (1983), superseded by

statute on other grounds, 28 U.S.C. § 1441(e).

Among the parties who may sue under ERISA § 502(a)

are health plan “beneficiaries.” Providers argue that they are

“beneficiaries” under ERISA and so may sue for declaratory

relief and money damages under ERISA § 502(a)(1)(B), as

well as for injunctive relief under § 502(a)(3).

We have held before, and reiterate now, that health care

providers are not “beneficiaries” within the meaning of

ERISA’s enforcement provisions. Spinedex Physical

Therapy USA Inc. v. United Healthcare of Arizona, Inc.

emphasized this rule when it held, “a non-participant health

care provider . . . cannot bring claims for benefits on its own

behalf. It must do so derivatively, relying on its patients’

assignments of their benefits claims.” 770 F.3d 1282, 1289

(9th Cir. 2014), cert denied, United Healthcare of Ariz. v.

Spinedex Physical Therapy USA, Inc., 136 S. Ct. 317 (2015).

As Spinedex’s analysis is brief, we expand on it here.

ERISA defines a “beneficiary” 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 thereunder.”

29 U.S.C. § 1002(8). Here, the employee benefit plans or the

plan subscribers, or both, designate Providers to receive direct

DB HEALTHCARE V. BLUE CROSS BLUE SHIELD 13

payment from Anthem or Blue Cross. This remuneration for

medical services rendered is not a “benefit” under ERISA.

Although ERISA does not define the word “benefit,” in

isolation, the definition of “employee welfare benefit plans”

in ERISA, in conjunction with the common definition of the

term “benefit,” supports the conclusion that a payment to a

medical provider for services rendered is not properly termed

a “benefit” to the provider. ERISA defines “employee

welfare benefit plans,” in part, as any plan, fund or program

maintained by an employer or an employee organization that

“was established or is maintained for the purpose of

providing for its participants or their beneficiaries, through

the purchase of insurance or otherwise . . . medical, surgical,

or hospital care or benefits, or benefits in the event of

sickness, accident, disability, death or unemployment, or

vacation benefits, apprenticeship or other training programs,

or day care centers, scholarship funds, or prepaid legal

services.” Id. § 1002(1). The term “benefit,” in context, quite

evidently refers to the specific advantages provided to

covered employees, as a consequence of their employment,

for particular purposes connected to alleviating various life

contingencies.

That statutory usage comports with dictionary definitions

of “benefit,” which include “[a] form of compensation, such

as paid vacation time, subsidized health insurance, or a

pension, provided to employees in addition to wages or salary

as part of an employment arrangement.” American Heritage

Dictionary of the English Language 168 (5th ed. 2011). The

statutory usage is also consistent with a more general

definition of “benefit,” “something that promotes or enhances

well-being; an advantage.” Id. Neither of these meanings of

14 DB HEALTHCARE V. BLUE CROSS BLUE SHIELD

the term “benefit” suggests that a fee owed in exchange for a

service is included.

Both the statutory context and common usage thus

illustrate that in the ERISA context, as the Second Circuit has

explained, the “[b]enefits to which a beneficiary [under

ERISA] is entitled are bargained-for goods, such as medical,

surgical, or hospital care, . . . rather than a right to payment

for medical services rendered.” Rojas v. Cigna Health & Life

Ins. Co., 793 F.3d 253, 257 (2d Cir. 2015) (internal citations

and quotation marks omitted). Although the “benefits”

provided under ERISA plans are often monetary rather than

“goods” in the tangible sense, they are provided only in the

event of specified contingencies, as part of an overall

compensation package. They are not payment in exchange

for any discrete services.

Health care providers’ patients are thus the ones who

receive ERISA health benefits, not the providers themselves.

Neither a designation in a health benefit plan nor an

assignment by a patient allowing a health care provider to

receive direct payment for health services entitles a health

care provider to “benefits” on its own behalf. Providers are

therefore not ERISA “beneficiar[ies].” They do not have

direct authority as beneficiaries to sue under ERISA

§ 502(a)(1)(B) or § 502(a)(3) to recover payments due them

for services rendered, or otherwise to enforce the statute’s

protections.

This holding is consistent with the decisions of other

circuits, which have uniformly concluded that health care

providers are not “beneficiar[ies]” for ERISA purposes, even

when the providers are contractually authorized to receive

direct payment for medical services rendered subscribers.

DB HEALTHCARE V. BLUE CROSS BLUE SHIELD 15

See Brown v. BlueCross BlueShield of Tenn., Inc., 827 F.3d

543, 546 (6th Cir. 2016); Pa. Chiropractic Ass’n v. Indep.

Hosp. Indem. Plan, Inc., 802 F.3d 926, 930 (7th Cir. 2015);

Rojas, 793 F.3d at 257–58; Pascack Valley Hosp. v. Local

464A UFCW Welfare Reimbursement Plan, 388 F.3d 393,

400 (3d Cir. 2004), as amended (Dec. 23, 2004); Hobbs v.

Blue Cross Blue Shield of Ala., 276 F.3d 1236, 1241 (11th

Cir. 2001); Ward v. Alt. Health Delivery Sys., Inc., 261 F.3d

624, 627 (6th Cir. 2001).

In the face of this great weight of authority, Providers

insist that many circuits have held that health care providers

are ERISA “beneficiaries.” Not so. The cases Providers rely

upon in support of this assertion did not so conclude.

City of Hope National Medical Center v. Healthplus, Inc.,

156 F.3d 223, 224–26 (1st Cir. 1998), and Kennedy v.

Connecticut General Life Insurance Co., 924 F.2d 698, 701

(7th Cir. 1991), both involved providers that held assignments

from their patients and so had derivative authority to sue for

their patients’ benefits. Although Kennedy suggested that the

health care provider was a “beneficiary,” a close look at the

opinion reveals that the Seventh Circuit’s language covered

only derivative authority suits, as later cases have clarified.

See, e.g., Davidowitz, 946 F.2d at 1479 (“[T]he plaintiff

health care provider in Kennedy sued under . . . an

assignment.” ). In Pennsylvania Chiropractic Ass’n, the

Seventh Circuit eliminated any doubt in this regard when it

held that health care providers “are not ‘beneficiaries’ as

ERISA uses that term.” 802 F.3d at 930.

Neither Ruttenberg v. U.S. Life Insurance Co., 413 F.3d

652 (7th Cir. 2005), nor Peterson v. American Life & Health

Insurance Co., 48 F.3d 404 (9th Cir. 1995), involved

16 DB HEALTHCARE V. BLUE CROSS BLUE SHIELD

recovery by health care providers of payments due. Instead,

both cases concerned patient claims for health plan coverage,

and considered whether an independent contractor and a

partner in a company – workers who do not fit the traditional

definition of an employee – are ERISA beneficiaries.

Ruttenberg, 413 F.3d at 661–63; Peterson, 48 F.3d at 408.

In sum, Spinedex, consistently with all other circuits that

had addressed the question, held that health care providers are

not “beneficiar[ies]” within the meaning of § 502(a) of

ERISA and may not bring suit under ERISA in that capacity.

We reaffirm that holding of Spinedex.

B.

Providers do not enjoy derivative authority to bring their

claims either. As a general matter, “ERISA does not forbid

assignment by a beneficiary of his right to reimbursement

under a health care plan to the health care provider.” Misic

v. Bldg. Serv. Emps. Health and Welfare Tr., 789 F.2d 1374,

1377 (9th Cir. 1986) (per curiam). So a health care provider

in appropriate circumstances can assert the claims of an

ERISA participant or beneficiary. See id. Here, however,

Providers lack such derivative authority to sue under ERISA

§ 502(a)(1)(B) or § 502(a)(3) given the nature of the

governing agreements and of the purported assignments.

(i) The providers in DB Healthcare lack derivative

standing because they do not hold valid assignments. The

governing employee benefit plans contain non-assignment

DB HEALTHCARE V. BLUE CROSS BLUE SHIELD 17

clauses that override any purported assignments.6 “ERISA

welfare plan payments are not assignable in the face of an

express non-assignment clause in the plan.” Davidowitz,

946 F.2d at 1481.

(ii) The Center lacks derivative authority for a different

reason. Their provider agreement with Anthem permits

assignment, and payment authorization forms in the record

could be construed as assigning the Center limited rights. But

the claims made here fall outside the scope of those assigned

rights.

The Center’s patients signed forms that read, “I Hereby

Authorize My Insurance Benefits to Be Paid Directly to the

Physician.” These forms do not use the terms “assign” or

“assignment,” but no such specific language is necessary to

effectuate an assignment of rights. “No words of art are

required to constitute an assignment; any words that fairly

indicate an intention to make the assignee owner of a claim

are sufficient.” 29 Williston on Contracts 74:3 (4th ed.). We

shall assume therefore that these payment authorizations

assign the physicians limited rights to payment under ERISA.

See BlueCross BlueShield of Tenn., 827 F.3d at 544 n.1,

546–47 (finding a limited assignment of rights where an

“Assignment of Benefits Form” stated “I request that

payment of authorized insurance benefits . . . be made on my

behalf to [my provider]”).

6

The exemplar assignment of benefits forms submitted by DB

Healthcare Providers to the district court are blank and unsigned. As a

result, the district court found that DB Healthcare Providers did not plead

sufficient facts to allege that their patients had assigned them any rights.

Because we find the non-assignment clause overrides any purported

assignment, we decline to review the determination that no patient

assignments existed.

18 DB HEALTHCARE V. BLUE CROSS BLUE SHIELD

Assuming the payment authorizations in Advanced

Women’s Health Center effectuated an assignment of some

rights, however, does not end the inquiry. “The question of

what rights and remedies pass with a given assignment

depends upon the intent of the parties.” Pac. Coast Agr. Exp.

Ass’n v. Sunkist Growers, Inc., 526 F.2d 1196, 1208 (9th Cir.

1975). We therefore consider whether the claims the Center

advances in this litigation are within the scope of the

assignments on which it relies. See Spinedex, 770 F.3d at

1292.

Here, the Center seeks injunctive relief to prevent Anthem

from offsetting asserted overpayments against other payments

due the Center (which for the most part, of course, relate to

different patients than the ones to whom the contested

services were provided); declaratory relief that Anthem’s

recoupment efforts are unlawful; monetary damages for

benefits allegedly unlawfully recouped; and declaratory and

injunctive relief for breach of fiduciary duty. To determine

whether the payment authorization forms assigned the Center

the right to pursue these claims, we look at the language and

context of the authorizations.

Our analysis in Spinedex, 770 F.3d at 1292, is instructive.

There, health plan subscribers signed forms assigning the

provider the right to seek payment of claims directly from

health plan administrators. Id. In that context, the forms

provided, in part, “[t]his is a direct assignment of my rights

and benefits under this policy.” Id. (capitalization removed).

Notwithstanding the broad language of the assignment –

considerably broader than the language here – the court held

that “the entirety of the Assignment indicates that patients

intended to assign to [the provider] only their rights to bring

DB HEALTHCARE V. BLUE CROSS BLUE SHIELD 19

suit for payment of benefits,” and that the provider had “no

right to bring claims for breach of fiduciary duty.” Id.

Even more clearly than in Spinedex, the language and

context of the assignment here indicates the plan subscribers’

intended to assign, at most, the right to payment of benefits

and the associated right to sue for non-payment.7 The

authorization is located on a form that lists types of medical

services. The assignment language refers only to direct

payment of insurance benefits to the physician, with no

reference to any broader rights. There is no doubt that this

authorization does not encompass the Center’s claims for

declaratory and injunctive relief with regard to offsetting of

overpayments against largely unrelated claims, or for breach

of fiduciary duty. See id.

Nor does the authorization reflect an assignment that

encompasses the Center’s claims for declaratory relief and

money damages regarding recoupment of alleged

overpayments. We have held that “because a health care

provider-assignee stands in the shoes of the beneficiary, such

a provider has standing to sue under § 502(a)(1)(B) to recover

7

An assignment of the right to receive payment of benefits generally

includes the limited right to sue for non-payment under § 502(a)(1)(B),

which empowers a participant or beneficiary to bring a civil action “to

recover benefits due to her under the terms of the plan.” See Spinedex,

770 F.3d at 1292, 1297 (recognizing that patients had assigned the health

care provider their “rights to bring suit for payment of benefits”); Misic,

789 F.2d at 1377–79 (holding that a physician, “as assignee of

beneficiaries pursuant to assignments valid under ERISA, has standing to

assert the claims of his assignors,” and so can sue to recover benefits

under § 502(a)(1)(B) of ERISA); see also BlueCross BlueShield of Tenn.,

827 F.3d at 547; N. Jersey Brain & Spine Ctr. v. Aetna, Inc., 801 F.3d

369, 372 (3d Cir. 2015).

20 DB HEALTHCARE V. BLUE CROSS BLUE SHIELD

benefits due under the plan.” Blue Cross of Cal. v.

Anesthesia Care Ass’n, 187 F.3d 1045, 1051 (9th Cir. 1999).

But the Center’s claim regarding recoupments is not a suit to

recover benefits under the ERISA plans. Rather, the claim

relates to Anthem’s process of post-payment claims review

and practice of recouping erroneous payments. These are

claims that the Center’s “patient-assignors could not assert,”

id., as any recoupment would come from Providers not from

the patients. See n.8, infra. The claims therefore do not fall

within the scope of the assignment. See Anesthesia Care

Ass’n, 187 F.3d at 1051. Although a “dispute . . . over the

right to payment, . . . might be said to depend on the patients’

assignments to the Providers,” the dispute over recoupment

“depends on the terms of the provider agreements,” not on the

assignment. Id.; see also BlueCross BlueShield of Tenn.,

827 F.3d at 548–49 (in an analogous case, holding that a

health care provider’s claims regarding recoupment were

“outside the scope of [the provider’s] assigned standing,”

because “the patient-assignors are not party to the Provider

Agreement that governs the recoupment process, and [the

insurer] has no right to recoup payments for medical care

made to its members”).

In sum, Providers are not “beneficiaries” expressly

authorized to sue to enforce ERISA’s provisions, and they

cannot bring their claims derivatively as assignees on behalf

of plan beneficiaries. Providers therefore are not authorized

to bring their claims in federal court under ERISA.

Accordingly, we affirm the district courts’ dismissals of the

DB HEALTHCARE V. BLUE CROSS BLUE SHIELD 21

ERISA claims in both DB Healthcare and Advanced

Women’s Health Center.8

C.

We caution that our conclusions regarding the reach of

ERISA’s statutory remedies do not necessarily preclude

Providers from contesting the recoupment and offsetting

actions they dispute. Claims are preempted by ERISA only

if two conditions are met: (1) the litigant could have brought

the claim under ERISA’s civil enforcement provision, and

(2) the claims have no basis in an independent legal duty.

Aetna Health Inc. v. Davila, 542 U.S. 200, 210 (2004). Any

state law claims for breach of the provider agreements could

not have been brought under ERISA and would have an

independent legal basis. Such claims would not be preempted

by ERISA. See Anesthesia Care Ass’n, 187 F.3d at 1050–52

8

Because we affirm the district courts’ decisions on the ground that

Providers are not statutorily or contractually authorized to bring suit, we

do not consider the merits of Providers’ claims that the plan administrators

violated the ERISA Claims Procedure regulation. We do note, however,

that the regulation applies only to “claims for benefits by participants and

beneficiaries.” See 29 C.F.R. § 2560.503-1(a) (emphasis added). That

language does not seem to provide procedural protections to health care

providers in payment disputes with claims administrators where, as here,

those providers have no recourse against the plan subscribers. See Dep’t

of Labor, Employee Benefits Security Administration, Benefit

Claims Procedure Regulation FAQs, A-8, available at

https://www.dol.gov/ebsa/faqs/faq_claims_proc_reg.html (last viewed

February 21, 2017) (“The regulation does not apply to requests by health

care providers for payments due them – rather than due the claimant – in

accordance with contractual arrangements between the provider and an

insurer or managed care organization, where the provider has no recourse

against the claimant for amounts, in whole or in part, not paid by the

insurer or managed care organization.”).

22 DB HEALTHCARE V. BLUE CROSS BLUE SHIELD

(holding that because a health care provider’s claim that Blue

Cross of California improperly amended its schedule of fees

was governed by a provider agreement rather than an

employee benefit plan, that claim was properly brought in

state court and not preempted by ERISA).

D.

Finally, the district court properly dismissed the Center’s

claims under the Declaratory Judgment Act, 28 U.S.C.

§ 2201(a), disapproving Anthem’s recoupment program with

respect to government employee benefits plans. The

government employee benefits plans are governed by the

ACA, not by ERISA. See 29 U.S.C. § 1003(b)(1); 42 U.S.C.

§ 300gg-21(a)(1).

The Center does not have authority to bring its claims

directly under ERISA – because, among other reasons, the

government plans are not covered by ERISA § 502(a), and

also because the Center is not, in any event, an ERISA

beneficiary, see Part IIA, supra. For the reasons explained

earlier, see Part IIB, supra, the Center cannot sue derivatively

via patient assignment either. Nor can the Center be

considered a “beneficiary” under the government plans

themselves, for essentially the same reasons it is not a

“beneficiary” under ERISA. As the Center has not identified

any other basis for the claims concerning the government

plans, those claims cannot go forward.

III. Conclusion

For the foregoing reasons we AFFIRM the judgments of

the district courts in Advanced Women’s Health Center and

DB Healthcare.