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Air Evac EMS, Inc. v. USAble Mutual Insurance Co.

United States Court of Appeals, Eighth Circuit

July 23, 2019

Air Evac EMS, Inc. Plaintiff - Appellant
v.
USAble Mutual Insurance Company, doing business as Arkansas Blue Cross and Blue Shield Defendant-Appellee

          Submitted: January 16, 2019

          Appeal from United States District Court for the Eastern District of Arkansas - Little Rock

          Before BENTON, MELLOY, and KELLY, Circuit Judges.

          MELLOY, CIRCUIT JUDGE

         Air 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[1] dismissed all of Air Evac's claims for failure to state a claim under Fed.R.Civ.P. 12(b)(6). We affirm.

         I. Background

         Emergency 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.

         Air 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.

         II. Discussion

         A. Standard of Review

         We 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).

         B. ERISA

         Under 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.

         The 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 ...


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