Air Evac EMS, Inc. Plaintiff - Appellant
USAble Mutual Insurance Company, doing business as Arkansas Blue Cross and Blue Shield Defendant-Appellee
Submitted: January 16, 2019
from United States District Court for the Eastern District of
Arkansas - Little Rock
BENTON, MELLOY, and KELLY, Circuit Judges.
MELLOY, CIRCUIT JUDGE
Evac EMS, Inc. ("Air Evac") asserts numerous claims
against USAble Mutual Insurance Company, d/b/a Arkansas Blue
Cross and Blue Shield ("Arkansas Blue"), regarding
Arkansas Blue's allegedly inadequate reimbursement for
air ambulance services that Air Evac provided to Arkansas
Blue plan members. The district court dismissed all of Air
Evac's claims for failure to state a claim under
Fed.R.Civ.P. 12(b)(6). We affirm.
air transport is expensive. Air Evac's base rate for a
single transport in 2014 was $19, 250. With a per mile charge
of between $115 and $205, Air Evac's average actual
charge for air ambulance transportation in 2014 was over $30,
000. Federal law requires Air Evac to provide its services
without regard to a patient's ability to pay, which means
Air Evac relies heavily on government and private insurers
for reimbursement. But most government and private insurers
provide only limited reimbursement for air ambulance
services. For instance, Arkansas Blue, as a matter of policy,
does not contract with air ambulance providers, and therefore
has no in-network providers of air ambulance services.
Moreover, Arkansas Blue's insurance plans typically limit
reimbursement for air ambulance services to $5, 000 per trip,
though in some cases reimbursement is limited to $1, 000 or
less. Thus, when Air Evac provides air ambulance services to
Arkansas Blue plan members, it is regularly compensated less
than it charges. According to the Amended Complaint, Air Evac
has two options for making up such shortfalls: balance-bill
the remaining cost to the plan member or appeal to Arkansas
Blue. (To effectuate appeals, Air Evac obtains assignments
from patients of their right to appeal coverage decisions.)
Neither option has proved very successful.
Evac argues that Arkansas Blue's limited reimbursement
for air ambulance services violates a number of federal and
state laws, including laws that prohibit annual limits on
"essential health benefits," laws that mandate
minimum payments for certain emergency services, and laws
that require adequate provider networks. These laws do not
provide a private cause of action, however, so Air Evac has
chosen to seek relief under the Employee Retirement Income
Security Act of 1974 ("ERISA"), the Arkansas
Deceptive Trade Practices Act ("ADTPA"), and
contract law. We address each set of claims in turn.
Standard of Review
review a district court's grant of a motion to dismiss
under Fed.R.Civ.P. 12(b)(6) de novo, "accept[ing] the
well-pled allegations in the complaint as true and draw[ing]
all reasonable inferences in the plaintiff's favor."
Meiners v. Wells Fargo & Co., 898 F.3d 820, 821
(8th Cir. 2018). "To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as
true, to 'state a claim to relief that is plausible on
its face.'" Id. (citation omitted).
ERISA, Air Evac seeks equitable relief, namely an injunction
and reformation of Arkansas Blue's insurance plan terms
"so that they do not include limits on benefits for
emergency air ambulance transportation." The district
court concluded that Air Evac did not have the right to seek
equitable relief under ERISA.
primary remedy for challenging plan terms under ERISA is
found in 29 U.S.C. § 1132(a)(1)(B). That section permits
suit by a participant or beneficiary "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."
Id. § 1132(a)(1)(B). In addition to allowing
suit for recovery of benefits, ERISA allows suit for breach
of fiduciary duty under § 1132(a)(2) and equitable
relief under § 1132(a)(3). Section 1132(a)(3) provides
for suit "by a participant, beneficiary, or fiduciary
(A) to enjoin any act or practice which violates any
provision of this subchapter or the terms of ...