ERISA-Third Circuit Continues The Trend Of Holding That A Health Plan’s Anti-Assignment Clause Will Prevent Health Service Providers From Having Standing In Court To Pursue Claims Against The Plan, Based On Purported Assignments By The Patient, But Hints That A Power Of Attorney Could Allow Providers To Get Into Court Anyway

(Following up on Blog post on May 22)

In Am. Orthopedic & Sports Med. v. Independence Blue Cross Blue Shield, 2018 U.S. App. LEXIS 12637 (3rd Circuit 2018), the Third Circuit Court of Appeals (the “Court”) held that an anti-assignment clause in an ERISA-governed health insurance plan was enforceable, since it was negotiated between the insurer and plan administrator.  As such, the district court properly held that a healthcare provider-to whom an assignment of a claim for benefits against the plan was purportedly made by the plan beneficiary/patient- lacked standing to bring suit against the plan for payment.  The Court felt that its ruling on the anti-assignment clause’s enforceability is in line with decisions from the First, Second, Fifth, Ninth, Tenth, Eleventh (cases cited therein).

In so ruling, the Court said that insurers did not waive their right to enforce the anti-assignment clause by accepting and processing a claim form, issuing a check to the plan beneficiary, and failing to raise the clause as an affirmative defense during the internal administrative appeals process.

However, the Court said further that it’s holding that the anti-assignment clause was enforceable meant that the plan beneficiary did not transfer an interest in his claim, but this does not mean that plan beneficiary could not grant a valid power of attorney, which the health care provider could use to bring suit against plan on the beneficiary’s behalf.  In this particular case, the Court declined to remand the case, because the healthcare provider waived its arguments concerning the power of attorney by failing to raise them in its opening or reply brief.

Querry (1)-Why wouldn’t a health care provider, when asking for (or in lieu of) a claims assignment from the patient, ask the patient to give it a power of attorney, to be used to sue the plan on the patient’s behalf and collect money from the plan that way?

Querry (2)-Is the anti-assignment clause enforceable in a self-funded health plan, where there is no negotiation with an insurer?


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