          Case: 13-10635   Date Filed: 11/05/2013   Page: 1 of 17


                                                        [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-10635
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 9:11-cv-80799-DTKH



SANCTUARY SURGICAL CENTRE, INC.,
GLADIOLUS SURGICAL CENTER, LLC,
PHYSICIANS SURGICAL GROUP, LLC,
NAPLES PHYSICIANS SURGICAL GROUP, LLC,
PSG OF S. FLORIDA, LLC,
PHYSICIANS SURGICAL GROUP OF BOCA RATON, LLC,

                                                       Plaintiffs - Appellants,

versus

AETNA INC.,

                                                                    Defendant,

AETNA HEALTH, INC.,
AETNA LIFE INSURANCE COMPANY,

                                                      Defendants - Appellees.
          Case: 13-10635   Date Filed: 11/05/2013   Page: 2 of 17


                      ________________________

                            No. 13-10636
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 9:10-cv-81260-DTKH



SANCTUARY SURGICAL CENTRE, INC.,
GLADIOLOUS SURGICAL CENTER, LLC,

                                                       Plaintiffs - Appellants,

PHYSICIANS SURGICAL GROUP, LLC, et al.,

                                                                    Plaintiffs,

versus

BLUE CROSS AND BLUE SHIELD OF FLORIDA, INC.,

                                                        Defendant - Appellee.


                      ________________________

                            No. 13-10667
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 9:11-cv-80800-DTKH



SANCTUARY SURGICAL CENTRE, LLC,
GLADIOLUS SURGICAL CENTER, LLC,
PHYSICIANS SURGICAL GROUP, LLC,
NAPLES PHYSICIANS SURGICAL GROUP, LLC,
PSG OF S. FLORIDA, LLC,
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PHYSICIANS SURGICAL GROUP OF BOCA RATON, LLC,

                                                                 Plaintiffs - Appellants,

versus

CONNECTICUT GENERAL LIFE INSURANCE COMPANY, INC.,
CIGNA HEALTHCARE, INC.,
CIGNA HEALTHCARE OF FLORIDA, INC.,

                                                                Defendants - Appellees.

                               ________________________

                        Appeals from the United States District Court
                            for the Southern District of Florida
                               ________________________

                                     (November 5, 2013)

Before CARNES, Chief Judge, TJOFLAT and MARTIN, Circuit Judges.

PER CURIAM:

         The plaintiffs in this case sued various insurance plan administrators in four

separate lawsuits that were consolidated in this appeal. The first suit was brought

against several corporations affiliated with United Healthcare, the second suit was

brought against three corporations affiliated with Aetna, the third suit was brought

against Blue Cross and Blue Shield of Florida (Blue Cross), and the fourth suit was

brought against three companies affiliated with Cigna. The plaintiffs asserted four

claims in each complaint: failure to pay benefits under the terms of an insurance

plan     subject   to     Employee    Retirement    Income     Security   Act   (ERISA)


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§ 502(a)(1)(B), breach of fiduciary duty under ERISA § 502(a)(3), failure to

provide plan documents under ERISA § 502(c), and equitable estoppel.                        The

district court dismissed the plaintiffs’ claims in each suit under Fed. R. Civ. P.

12(b)(6) for failure to state a claim. The plaintiffs, contending that they pleaded

sufficient facts to state plausible claims, appeal that dismissal.1

                                               I.

       The plaintiffs here consist of two groups of medical care providers —

physician providers and medical facility providers. Beginning in 2004, they began

performing medical procedures known as manipulations under anesthesia (MUAs)

on patients covered under health insurance plans administered by the defendants. 2

Before performing those procedures the plaintiffs required each of their patients to

sign a written agreement assigning their right to insurance benefits to the plaintiffs.

The plaintiffs allege that the defendants originally paid them for the MUAs but

later began denying those claims. While the complaints do not say when that

change occurred, the exhibits attached to each complaint indicate that the denials

began in 2006 and the plaintiffs continued to perform MUAs for which payment

was denied by the defendants through 2009.                The complaints allege that the

defendants “generally denied the MUA claims on the basis that they were an
       1
         The plaintiffs’ appeal of the dismissal of their complaint against the United Healthcare
defendants was dismissed by this court for lack of jurisdiction. Sanctuary Surgical Ctr., Inc. v.
United Healthcare, Inc., No. 13-10634, slip op. 1 (11th Cir. May 15, 2013). Accordingly, those
claims are not at issue here.
       2
         The plaintiffs did not begin treating patients covered by Blue Cross plans until 2006.
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unproven service, experimental, investigational, not medically necessary, or for not

being a covered benefit or covered service under the relevant plan.”

       The plaintiffs’ attempts to assert plausible claims rely on three broad factual

allegations. The first is that the specific terms of each insurance plan in question

provide for coverage of MUAs. Each complaint quotes isolated provisions from

one to four group insurance plans administered by the defendants 3 to show that the

plaintiffs are entitled to payment for the MUAs under all of the plans at issue. The

quoted provisions state that the plans cover “medically necessary” procedures.

       The plaintiffs attached exhibits to their complaints that list: (1) patient

identification numbers, (2) group plan identification numbers, (3) medical

conditions giving rise to MUA treatment for each patient, and (4) dates when the

MUAs were performed. These exhibits show that the plaintiffs had performed

MUAs to treat an array of conditions. They also show that the plaintiffs were

seeking payment for procedures performed on 1,857 different patients: 347

covered by the Aetna defendants; 1,184 covered by Blue Cross; and 326 covered

by the Cigna defendants. Finally, the exhibits indicate that many of those patients

were covered under different group plans. The complaints, however, do not quote

language from any of those other plans or contain copies of the other plans as


       3
         The complaint against Blue Cross fails to quote any language from any Blue Cross plan.
The complaint instead points to language from a plan administered by Carefirst and alleges,
without support, that the Blue Cross plans are “consistent with” the Carefirst plan.
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additional exhibits. Instead the complaints rest on the allegation that “[u]pon

information and belief” all of those other plans contain language “consistent with”

the one to four plans quoted in each complaint.

      The second broad factual allegation set out in the complaints is that MUAs

qualify as “medically necessary” procedures based on their inclusion in the

American Medical Association’s Codebook of Reimbursable Procedures.             The

complaints allege that the AMA recognizes that inclusion in the Codebook “is

generally based upon the procedure being consistent with contemporary medical

practice and the fact that it is being performed by many physicians in clinical

practice in multiple locations.” The complaints further allege that MUAs would

not have been classified in the Codebook unless (1) they were “a distinctive service

performed by many physicians/practitioners across the United States”; (2) “the

clinical efficacy of MUAs [was] well established and documented in the United

States peer review literature”; and (3) “the service/procedure has received approval

from the Food and Drug Administration.”

      The plaintiffs’ third general allegation concerns oral representations made by

the defendants. Each complaint alleges that before performing MUAs on all 1,857

patients, the plaintiffs called representatives of the defendants to determine the

scope of the patients’ insurance coverage. The following topics were allegedly

discussed in all 1,857 conversations:


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      the existence, nature and extent of the patient’s out-of-network
      coverage; the patient’s underlying medical condition which the
      patient’s doctor believed necessitated the MUA; whether MUAs were
      covered services or benefits under the applicable insurance policy; the
      applicable co-payments and deductibles; pre-existing conditions;
      whether the patient had satisfied applicable authorization
      requirements for the MUA; and other issues concerning the patient’s
      insurance coverage.

The defendants allegedly told the plaintiffs that the MUAs were covered.

                                         II.

      We review de novo the district court’s grant of a motion to dismiss under

Rule 12(b)(6) for failure to state a claim.       Ironworkers Local Union 68 v.

AstraZeneca Pharm., LP, 634 F.3d 1352, 1359 (11th Cir. 2011). We must accept

the complaints’ allegations as true and view them in the light most favorable to the

plaintiffs. Id. “In assessing the sufficiency of the complaint[s’] allegations, we are

bound to apply the pleading standard articulated in Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 127 S.Ct. 1955 (2007), and Ashcroft v. Iqbal, 556 U.S.

662, 129 S.Ct. 1937 (2009).” Id. The “allegations must be enough to raise a right

to relief above the speculative level, on the assumption that all the allegations in

the complaint[s] are true (even if doubtful in fact).” Twombly, 550 U.S. at 555,

127 S.Ct. at 1965 (citation omitted). As a result, the plaintiffs must plead “a claim

to relief that is plausible on its face.” Id. at 570, 127 S.Ct. at 1974. “A claim has

facial plausibility when the pleaded factual content allows the court to draw the



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reasonable inference that the defendant is liable for the misconduct alleged.”

Iqbal, 556 U.S. at 663, 129 S.Ct. at 1940.

                                         A.

      The plaintiffs first argue that they have pleaded sufficient facts to make out a

plausible claim under ERISA § 502(a)(1)(B), which allows participants and

beneficiaries of a welfare benefit plan governed by ERISA, 29 U.S.C. §§ 1001 et

seq., to bring civil suits to recover benefits or enforce rights to benefits under the

terms of the plan. See 29 U.S.C. § 1132(a)(1)(B); Jones v. Am. Gen. Life & Acc.

Ins. Co., 370 F.3d 1065, 1069 (11th Cir. 2004). We conclude that each complaint

fails to state a claim under § 502(a)(1)(B) because the plaintiffs do not plead

specific facts creating a plausible inference that the MUAs were medically

necessary, and thus covered benefits, for each patient in question.

      The primary factual support for the allegation that the MUAs were medically

necessary is their inclusion in the AMA Codebook of Reimbursable Procedures.

However, the Codebook does not support an inference that the MUAs were

medically necessary for two reasons. First, the Codebook expressly states that

“[i]nclusion in the . . . codebook does not represent endorsement . . . of any

particular diagnostic or therapeutic procedure” and “[i]nclusion or exclusion of a

procedure does not imply any health insurance coverage or reimbursement




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policy.” 4   Second, even if the Codebook lacked those disclaimers, the only

plausible inference that reliance on it would support is that MUAs are generally

accepted procedures.        However, general acceptance is not the same thing as

medical necessity for a particular patient. Therefore the AMA Codebook fails to

support the inference that the MUAs performed were medically necessary covered

benefits.

       Unable to rely on the AMA Codebook, the plaintiffs’ ultimate undoing is

their failure to allege specific facts showing that each MUA was medically

necessary for the 1,857 patients and wide variety of ailments treated. Without

these specific facts the plaintiffs have not created a plausible inference that they

were entitled to benefits. The broad allegation that the plaintiffs received pre-

approval from the defendants before performing the MUAs is also unhelpful. It

reveals nothing about how the defendants applied the “medical necessity”

definition to deny each claim, and the plaintiffs instead rely on the scattershot

allegation that the defendants “generally denied the MUA claims on the basis that

they were an unproven service, experimental, investigational, not medically
       4
          The plaintiffs’ complaints neither quoted this specific language nor attached copies of
the Codebook as exhibits. Instead, the Aetna defendants included the Codebook pages with this
language as an exhibit with their motion to dismiss. Although we generally limit our review to
the four corners of the complaint when reviewing a dismissal under Rule 12(b)(6), we may
properly consider the Codebook language submitted by the Aetna defendants because the
plaintiffs “refer[] to [those] documents in the complaint and those documents are central to the
plaintiff[s’] claim.” See Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1369
(11th Cir. 1997).


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necessary, or for not being a covered benefit or covered service under the relevant

plan.” The complaints also fail to allege any relevant facts to justify their assertion

that the “medical necessity” definition should have been applied differently to

permit coverage. Without this type of particularized showing, the plaintiffs have

failed to plead sufficient facts supporting a plausible inference that they were

entitled to benefits.

                                          B.

       The plaintiffs assert two additional claims that turn on the issue of standing.

The first is a claim for breach of fiduciary duty under ERISA § 502(a)(3), 29

U.S.C. § 1132(a)(3), based on the defendants’ status as plan fiduciaries under 29

U.S.C. § 1002(21)(A). The second is a claim seeking civil penalties from the

defendants for failure to provide plan documents to plan participants or

beneficiaries as required by ERISA § 502(c), 29 U.S.C. § 1132(c).

       The only parties with standing to sue a plan subject to ERISA under 29

U.S.C. § 1132 are “participant[s],” “beneficiar[ies],” “fiduciar[ies],” and the

Secretary of Labor. 29 U.S.C. § 1132; Cagle v. Bruner, 112 F.3d 1510, 1514 (11th

Cir. 1997). Healthcare providers fall outside this group. See Hobbs v. Blue Cross

Blue Shield of Ala., 276 F.3d 1236, 1241 (11th Cir. 2001) (“Healthcare

providers . . . generally are not considered ‘beneficiaries’ or ‘participants’ under

ERISA.”). Nevertheless, healthcare providers may obtain derivative standing by


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securing an assignment of rights from a party with standing. See Cagle, 112 F.3d

at 1514–15.

      Assignment agreements are generally interpreted narrowly. For that reason,

the right to bring suit under 29 U.S.C. § 1132 cannot be assigned “by implication

or by operation of law.” See Tex. Life, Acc. Health & Hosp. Serv. Ins. Guar.

Ass’n v. Gaylord Entm’t Co., 105 F.3d 210, 218–19 (5th Cir. 1997) (holding that

association did not have derivative standing to bring a claim for breach of fiduciary

duty under 29 U.S.C. § 1132(a)(2) because there was no evidence that the right to

bring a breach of fiduciary duty claim had been “expressly and knowingly

assigned”); see also Restatement (Second) of Contracts § 324 (1981) (“It is

essential to an assignment of a right that the obligee manifest an intention to

transfer the right to another person without further action or manifestation of

intention by the obligee.”).     Instead, the assignment must be “express and

knowing.” Tex. Life, 105 F.3d at 218. Accordingly, the scope of an assignment

cannot exceed the terms of the assignment agreement itself. See id.

      The plaintiffs contend that they have standing to assert claims under

§ 502(a)(3) and § 502(c) based on the assignment agreements they entered into

with each patient. The agreements provide:

      I understand that I am responsible for all charges. As a courtesy, my
      insurance will be billed for me. It is my responsibility to pay any
      deductible, copay or any other balance not paid for by my insurance


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      company. I authorize insurance benefits to be paid directly to the
      provider.

      By signing below, I acknowledge that I authorize payment to
      [Plaintiff] . . . I have been presented with a copy of the Notice of
      Privacy Policy . . . I understand the contents of the Notice. I request
      medical insurance benefits either to myself, or to the party who
      accepts assignment. Regulations pertaining to medical assignment of
      benefits apply.

(emphasis added). The plaintiffs’ contention stretches beyond its breaking point

the plain meaning of the agreement, which assigns only the right to receive

benefits and not the right to assert claims for breach of fiduciary duty or civil

penalties. Because the agreements do not support the plaintiffs’ position, they lack

standing to bring claims under § 502(a)(3) and § 502(c).

                                         C.

      The plaintiffs’ final claim is based on an equitable estoppel theory. We have

recognized equitable estoppel as an additional remedial road beyond the remedy

paths explicitly authorized under ERISA § 502(a).          Jones, 370 F.3d at 1069.

However, this alternative route is “very narrow.” Id. It is only open to a plaintiff

who can show that (1) “the relevant provisions of the plan at issue are ambiguous,”

and (2) “the plan provider or administrator has made representations to the plaintiff

that constitute an informal interpretation of the ambiguity.” Id. “[A]mbiguity

exists if the policy is susceptible to two or more reasonable interpretations that can

fairly be made, and one of these interpretations results in coverage while the other


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results in exclusion.” Tippitt v. Reliance Standard Life Ins. Co., 457 F.3d 1227,

1235 (11th Cir. 2006) (quotation marks omitted). Equitable estoppel may not be

relied upon to “enlarge or extend the coverage specified in a contract.” Kane v.

Aetna Life Ins., 893 F.2d 1283, 1285 n.3 (11th Cir. 1990).

      The plaintiffs rest their equitable estoppel argument on the allegation that the

terms “medically necessary” and “covered service” are ambiguous under the plans.

We note at the outset that this argument fails with respect to Defendant Blue Cross.

The plaintiffs’ complaint against Blue Cross points only to language in a plan

issued by Carefirst, not Blue Cross, to support the plaintiffs’ position that the terms

of the Blue Cross plans were ambiguous. Coupling language from a non-Blue

Cross plan with the conclusory allegation that similar, yet unidentified, language

exists in the Blue Cross plans is insufficient to move the plaintiffs’ equitable

estoppel claim against Blue Cross beyond the “speculative level.” Twombly, 550

U.S. at 555, 127 S.Ct. at 1965 (citation omitted). This conclusion holds for all of

the plaintiffs’ claims based on insurance plans that were not specifically quoted in

the complaints. Without pointing to specific plan language that is ambiguous, the

plaintiffs’ equitable estoppel claims under those plans are speculative at best.

      With respect to the plaintiffs’ claims against the Aetna and Cigna

defendants, we may examine the plans specifically mentioned in the complaints to

determine whether the plaintiffs have pleaded sufficient facts to establish a


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plausible claim of equitable estoppel for those plans. While the plaintiffs only

quoted selected portions of three Aetna plans and four Cigna plans in their

complaints, our review to determine ambiguity in those plans is not limited to

those isolated paragraphs. Instead, to assess for ambiguity we may review the

broader portions of the plans that the defendants included in their motions to

dismiss. See Speaker v. Dep’t of Health & Human Servs., 623 F.3d 1371, 1379

(11th Cir. 2010) (noting that a court “may consider an extrinsic document if it is

(1) central to the plaintiff’s claim, and (2) its authenticity is not challenged”). It is

well-established that if these plans “contradict the general and conclusory

allegations of the pleading[s], the [plans] govern.” Griffin Indus., Inc. v. Irvin, 496

F.3d 1189, 1206 (11th Cir. 2007).

      Our review of the plans leads us to conclude that the terms “medically

necessary” and “covered service” are not ambiguous. They are unambiguous

because each plan contains an extensive definition of the terms. For example, a

representative Aetna plan includes the following definition of “medically

necessary”:

      To be Medically Necessary, the service or supply must:

      • be care or treatment as likely to produce a significant positive
        outcome as, and no more likely to produce a negative outcome
        than, any alternative service or supply, both as to the disease or
        injury involved and the Member’s overall health condition;



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      • be care or services related to diagnosis or treatment of an existing
        illness or injury, except for covered periodic health evaluations and
        preventive and well baby care, as determined by HMO;

      • be a diagnostic procedure, indicated by the health status of the
        Member and be as likely to result in information that could affect
        the course of treatment as, and no more likely to produce a
        negative outcome than, any alternative service or supply, both as to
        the disease or injury involved and the Member’s overall health
        condition;

      • include only those services and supplies that cannot be safely and
        satisfactorily provided at home, in a Physician’s office, on an
        outpatient basis, or in any facility other than a Hospital, when used
        in relation to inpatient Hospital Services; and

      • as to diagnosis, care and treatment be no more costly (taking into
        account all health expenses incurred in connection with the service
        or supply) than any equally effective service or supply in meeting
        the above tests.

The plan further provides who will make the “medical necessity” determination

and what information that person will consider:

      In determining if a service or supply is Medically Necessary, HMO’s
      Patient Management Medical Director or its Physician designee will
      consider:

      • information provided on the Member’s health status;
      • reports in peer reviewed medical literature;
      • reports and guidelines published by nationally recognized health
        care organizations that include supporting scientific data;
      • professional standards of safety and effectiveness which are
        generally recognized in the United States for diagnosis, care or
        treatment;
      • the opinion of Health Professionals in the generally recognized
        health specialty involved;


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      • the opinion of the attending Physicians, which have credence but
        do not overrule contrary opinions; and
      • any other relevant information brought to the HMO’s attention.

The Cigna plans contain a similarly extensive definition of the term “medically

necessary covered services.” For example, one Cigna plan outlines the following:

      Medically Necessary Covered Services and Supplies are those
      determined by the Medical Director to be:

      • required to diagnose or treat an illness, injury, disease or its
        symptoms;
      • in accordance with generally accepted standards of medical
        practice;
      • clinically appropriate in terms of type, frequency, extent, site and
        duration;
      • not primarily for the convenience of the patient, Physician or other
        health care provider; and
      • rendered in the least intensive setting that is appropriate for the
        delivery of the services and supplies. Where applicable, the
        Medical Director may compare the cost-effectiveness of alternative
        services, settings or supplies when determining least intensive
        setting.

Given these extensive definitions, the terms are not ambiguous. See Katz v.

Comprehensive Plan of Grp. Ins., 197 F.3d 1084, 1086 n.8, 1090 (11th Cir. 1999)

(holding that the term “active service” was unambiguous when insurance plan

defined the term); cf. Dahl-Eimers v. Mut. of Omaha Life Ins. Co., 986 F.2d 1379,

1382 (11th Cir. 1993) (holding that the phrase “considered experimental” was

ambiguous where the plan did not “indicate who will determine whether a

proposed treatment is considered experimental” and did not contain “standards for


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how that determination will be made).            Because the terms of the plans were

unambiguous, the plaintiffs’ equitable estoppel claims necessarily fail.

                                          III.

      For the reasons discussed above, the plaintiffs did not state a plausible claim

for relief and the district court properly dismissed their claims.

      AFFIRMED.




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