Supreme Court, Queens County, November 30, 2022

Robinson & Cole LLP, New York City (Matthew P. Mazzola of counsel), for defendants.

Lewin & Baglio, LLP, Westbury (Brendan J. Kearns of counsel), for plaintiff.

It is ordered that the motion by defendants Oxford Health Insurance Company, Inc., Oxford Health Insurance Inc., Oxford Health Plans (NJ), Inc., Oxford Health Plans (NY), Inc. and Oxford Health Plans, LLC (Oxford) for an order dismissing plaintiff's amended complaint pursuant to CPLR 3211 (a) (1) and (7) is determined as follows:

Plaintiff Norman Maurice Rowe, M.D., M.H.A., L.L.C. (Rowe, LLC) provides health services in the State of New York. Plaintiff alleges that surgical services were provided to patient C.H. on February 20, 2020. Rowe, LLC was an "out-of-network" provider of such services. Thereafter plaintiff submitted bills or "charges" to Oxford for payment for such services. The patient was insured through her employer's health benefit plan, UnitedHealthcare/Oxford Freedom Plan, which, as an employer-provided welfare benefit plan, is governed by the Employee Retirement Income Security Act of 1974 (ERISA) (29 USC § 1003 [a]; Comprehensive Spine Care, P.A. v Oxford Health Ins., Inc., 2019 WL 2498925, 2019 US Dist LEXIS 100810 [D NJ, June 17, 2019, Civil Action No. 18-13874]). Rowe, LLC alleges that a certain letter, dated January 24, 2020 (the Oxford letter), sent to the patient by Oxford, constituted a "network exception" agreement to pay Rowe, LLC as an out-of-network provider at the in-network rate. In the amended complaint, Rowe, LLC alleges that Oxford issued payment that was unreasonable for the services provided.{**77 Misc 3d at 960}

Plaintiff interposed the instant amended complaint^[FN1] on December 14, 2021, interposing causes of action for breach of contract, unjust enrichment, promissory estoppel, and violation of the Prompt Pay Law (Insurance Law § 3224-a). Rowe, LLC claims that the Oxford letter approving the services to be performed constituted an express contract to reimburse it at the in-network rate.

Oxford brings a pre-answer motion to dismiss the amended complaint on the grounds that each of plaintiff's causes of action, being state-law claims, are expressly preempted by ERISA or otherwise fail to state a claim upon which relief can be granted.

ERISA's federal preemption provision explicitly provides, in pertinent part, that "the provisions of this subchapter . . . shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan." (ERISA § 514 [a] [29 USC § 1144 (a)].) Moreover, "ERISA preemption is not limited to state laws that specifically affect employee benefit plans; it extends to state common-law contract and tort actions that relate to [employee] benefits as well" (Chau v Hartford Life Ins. Co., 167 F Supp 3d 564, 571 [SD NY 2016]). Oxford maintains that the claims at issue in this action "relate to" its administration of an ERISA-governed plan within the meaning of 29 USC § 1144 (a).

Pursuant to 29 USC § 1003 (a) (1), ERISA applies to "any employee benefit plan if it is established or maintained . . . by any employer engaged in commerce." "The purpose of this broad preemption clause [is] to ensure [that] plans and plan sponsors [are] subject to a uniform body of benefit law, minimizing the administrative and financial burden of complying with conflicting requirements of the various States" (Comprehensive Spine Care, P.A. v Oxford Health Ins., Inc., 2019 WL 2498925, *2, 2019 US Dist LEXIS 100810, *4 [emphasis added]; Crawley-Mack v Rite Aid of N.Y., Inc., 2017 WL 11407303, 2017 US Dist LEXIS 76706 [ED NY, May 17, 2017, 16 Civ 4622 (AMD) (RER)]).

In opposition, plaintiff maintains that its claims are not preempted inasmuch as the said Oxford letter constitutes an{**77 Misc 3d at 961} "independent agreement" between plaintiff and Oxford.^[FN2] However, it is undisputed that the Oxford letter was written to the patient. Moreover, in the letter, Oxford plainly informed the patient that its approval "does not guarantee payment" and that payment would be subject to the terms of plaintiff's (ERISA-governed) plan rules (see Comprehensive Spine Care, 2019 WL 2498925, 2019 US Dist LEXIS 100810; Advanced Orthopedics & Sports Medicine Inst., P.C. v Oxford Health Ins., Inc., 2022 WL 1718052, 2022 US Dist LEXIS 95773 [D NJ, May 27, 2022, Civil Action No. 21-17221(FLW)]; Glastein v Horizon Blue Cross Blue Shield of Am., 2018 WL 3849904, 2018 US Dist LEXIS 135911 [D NJ, Aug. 13, 2018, Civil Action No: 17-cv-7983 (PGS)(TJB)]). Here, as in Glastein, where the court rejected the plaintiff doctor's claim that a [*3]pre-authorization letter was a contract, the terms of the instant Oxford letter state that payment was subject to the terms of the patient's plan (see also Neurological Surgery, P.C. v Siemens Corp., 2017 WL 6397737, 2017 US Dist LEXIS 206010 [ED NY, Dec. 12, 2017, 17-cv-3477 (ADS)(AKT)]; Advanced Orthopedics & Sports Medicine Inst., P.C. v Oxford Health Ins., Inc., 2022 WL 1718052, 2022 US Dist LEXIS 95773; Comprehensive Spine Care, P.A. v Oxford Health Ins., Inc., 2019 WL 2498925, 2019 US Dist LEXIS 100810). Plaintiff's reliance on Plastic Surgery Ctr., P.A. v Aetna Life Ins. Co. (967 F3d 218 [3d Cir 2020]) and McCulloch Orthopaedic Surgical Servs., PLLC v Aetna Inc. (857 F3d 141 [2d Cir 2017]) is misplaced, inasmuch as the agreements there relied upon oral representations, whereas here, there is a written statement from Oxford stating that coverage was subject to the terms of the plan (see Advanced Orthopedics & Sports Medicine Inst., P.C. v Oxford Health Ins., Inc., 2022 WL 1718052, 2022 US Dist LEXIS 95773).{**77 Misc 3d at 962}

This court also concurs with the reasoning of the courts in several related cases that "[t]he only way to determine whether Plaintiff's claims were administered properly is to review the terms of the governing ERISA Plan" (Norman Maurice Rowe, MD, MHA, LCC v Oxford Health Ins. Co., Inc., 2022 NY Slip Op 34442[U], *2 [Sup Ct, Queens County, July 11, 2022, Leverett, J.]; and see East Coast Plastic Surgery, P.C. v Oxford Health Ins. Co., Inc., 2022 NY Slip Op 34445[U] [Sup Ct, Queens County, May 27, 2022, Esposito, J.]; Rowe Plastic Surgery of Long Is., P.C. v Oxford Health Ins. Co., Inc., 2022 NY Slip Op 33149[U] [Sup Ct, Queens County, July 21, 2022, McDonald, J.]; Norman Maurice Rowe, M.D., M.H.A., L.L.C. v Oxford Health Ins. Co., Inc., 2022 NY Slip Op 33150[U] [Sup Ct, Queens County, Aug. 31, 2022, Caloras, J.]). Moreover, as noted by the Court of Appeals, preemption is intended for those claims relating to the administration of health care plans and the "decision-making process with respect to coverage or benefits" (see Nealy v US Healthcare HMO, 93 NY2d 209, 219-220 [1999] [ERISA did not preempt medical malpractice claims]). As such, it follows that plaintiff's contractual and other state-law claims are expressly preempted by ERISA and superseded thereby.

Notwithstanding the clear federal preemption of plaintiff's claims, the state-law claims must still fail. There can be no breach of contract claim where, assuming arguendo the Oxford letter constituted a contract, there is no allegation that the nonparty, in this matter plaintiff, was an intended beneficiary of the said contract (see Reznick v Bluegreen Resorts Mgt., Inc., 154 AD3d 891 [2d Dept 2017]; Town of Oyster Bay v Doremus, 94 AD3d 867 [2d Dept 2012]). In its opposition papers, plaintiff made no arguments in support of its unjust enrichment and promissory estoppel claims, and as such they are deemed abandoned (Blackman v Metropolitan Tr. Auth., 206 AD3d 602 [2d Dept 2022]). Moreover, as has been noted herein, the Oxford letter did not contain a "clear and unambiguous promise" so as to support a claim for promissory estoppel (Nam Tai Elecs., Inc. v UBS PaineWebber Inc., 46 AD3d 486, 487 [1st Dept 2007]). Finally, insofar as the Prompt Pay Law (Insurance Law § 3224-a), by its very terms, applies to the processing of health care claims "submitted under contracts or agreements," plaintiff's claims cannot stand where this court has already found that there was no contract or agreement between the parties (see Millennium{**77 Misc 3d at 963}Health, LLC v EmblemHealth, Inc., 240 F Supp 3d 276 [SD NY 2017]; Surgicore of Jersey City v Empire HealthChoice Assur., Inc., 2021 WL 1092029, 2021 US Dist LEXIS 54060 [ED NY, Mar. 22, 2021, 19-CV-3485(EK)(RML)]). Moreover, Prompt Pay claims are also expressly preempted by ERISA (see Neurological Surgery, P.C. v Siemens Corp., 2017 WL 6397737, 2017 US Dist LEXIS 206010 [ED NY, Dec. 12, 2017, 17-cv-3477 (ADS)(AKT)]).

Accordingly, it is ordered that the motion seeking dismissal of the amended complaint is granted in its entirety with prejudice as against the defendants, and the Clerk is directed to enter judgment accordingly in favor of the defendants.