Our client, an out-of-network orthopedics practice group, filed a lawsuit against Blue Cross Blue Shield of Alabama (BCBSAL) to dispute the medical reimbursement for a spinal surgery performed on July 12, 2016. The patient in the suit had coverage under a self-funded plan, administered by BCBSAL, and thus governed by the Employee Retirement Income Security Act (ERISA). Our client does not participate in a preferred provider network with the Blue Card Program and as such, had received an assignment of benefits from the patient in advance of services being rendered. As an assignee of the patient, our client asserted standing to bring an ERISA claim derivatively to dispute BCBSAL’s under-reimbursement of the medical claim.
BCBSAL filed a motion to dismiss contending that the anti-assignment clause in the plan prohibits any and all types of assignments of claims for benefits and argued the provider lacked standing under ERISA to bring a lawsuit.
The Court found the Amended Complaint presented factual allegations that demonstrated our client’s assertion of ERISA standing was sufficiently alleged in the complaint and denied BCBSAL’s motion to dismiss. Specifically, the Court found that since BCBSAL had paid the provider directly for the services, in violation of plan language, BCBSAL could be deemed to have waived the anti-assignment clause contained in the plan.
New federal legislation designed to protect patients from surprise billing, mainly the No Surprises Act, enacted December 27, 2020, and due to take effect January 2022, will have applicable provisions for handling claims and reimbursement disputes for elective surgeries, not just emergent/urgent and inadvertent services. We will continue to follow the regulatory developments of the No Surprises Act and its expected impact on out-of-network providers.