                                  PRECEDENTIAL

  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT
          ________________

                No. 18-3381
             ________________

 THE PLASTIC SURGERY CENTER, P.A.,
                          Appellant

                      v.

   AETNA LIFE INSURANCE COMPANY

On Appeal from the United States District Court
         for the District of New Jersey
           (D.C. No. 3-17-cv-13467)
 District Judge: Honorable Freda L. Wolfson

             ________________

                 No. 18-3556

 THE PLASTIC SURGERY CENTER, P.A.,
                          Appellant

                      v.

            AETNA HEALTH INC
       On Appeal from the United States District Court
                for the District of New Jersey
                   (D.C. No. 3-18-cv-00503)
         District Judge: Honorable Freda L. Wolfson
                      ________________

                Argued September 19, 2019

       Before: KRAUSE, MATEY, Circuit Judges, and
         QUIÑONES ALEJANDRO, * District Judge

                    (Filed: July 17, 2020)


Michael M. DiCicco [ARGUED]
James A. Maggs
Maggs & McDermott
3349 Highway 138
Building C, Suite D
Wall, NJ 07719

   Counsel for Appellant, The Plastic Surgery Center, P.A.

Colin J. O’Boyle    [ARGUED]
Gregory S. Voshell
Elliott Greenleaf
925 Harvest Drive
Suite 300
Blue Bell, PA 19422

   *
     Honorable Nitza I. Quiñones Alejandro, District Judge,
United States District Court for the Eastern District of
Pennsylvania, sitting by designation.


                              2
Counsel for Appellees Aetna Life Insurance Co, Aetna Health
Inc.

                         __________

                OPINION OF THE COURT
                      __________


KRAUSE, Circuit Judge.

    This case presents an issue of first impression for this
Circuit and of great importance to the healthcare industry:
What remedies are available to an out-of-network healthcare
provider when an insurer agrees to pay for the provision of
services that are not otherwise available in-network and then
reneges on that promise? To frame the question in statutory
terms, in what circumstances does section 514(a) of the
Employee Retirement Income Security Act of 1974 (ERISA),
29 U.S.C. § 1001, et seq., which preempts state laws that
“relate to” ERISA plans, preempt an out-of-network provider
from pursuing common law breach of contract, promissory
estoppel, and unjust enrichment claims? The District Court
held the provider’s claims here were preempted. We disagree
as to the breach of contract and promissory estoppel claims, so
we will affirm, in part, and reverse, in part.




                              3
                    I.     BACKGROUND 1

   Aetna 2 is an insurer for healthcare plans offered by various
employers. Employees of two of those employers—J.L. and
D.W.—had plans that did not authorize coverage of out-of-
network services under normal circumstances: J.L.’s plan
provided out-of-network benefits only in cases of “Urgent Care
or a medical Emergency,” 3 JA 239, and the procedure J.L.


   1
      We draw this background from the allegations in the
Center’s first amended complaint in J.L.’s case and proposed
second amended complaint in D.W.’s case, which we accept as
true at the motion to dismiss stage. See Menkes v. Prudential
Ins. Co. of Am., 762 F.3d 285, 287 (3d Cir. 2014).
   2
     Aetna Health Inc. and Aetna Life Insurance Company are
J.L.’s and D.W.’s plan administrators, respectively. We refer
to them collectively as Aetna, the insureds’ plan administrator,
or the insurer.
   3
      “Urgent Care” and “Emergency” are defined terms in
J.L.’s plan. Emergency is defined as:

   A medical condition manifesting itself by acute
   symptoms of sufficient severity including, but not
   limited to, severe pain, psychiatric disturbances and/or
   symptoms of Substance Abuse such that a prudent
   layperson, who possesses an average knowledge of
   health and medicine, could expect the absence of
   immediate medical attention to result in: placing the
   health of the individual . . . in serious jeopardy; serious
   impairment to bodily functions; or serious dysfunction
   of a bodily organ or part.

                               4
required fell into neither category, and D.W.’s plan did not
provide out-of-network benefits at all.

    As it turned out, however, both J.L. and D.W. required
medical procedures that were not available in-network. J.L.
needed bilateral breast reconstruction surgery following a
double mastectomy, and there were no in-network physicians
available to perform the procedure. D.W. required facial
reanimation surgery—a niche procedure performed by only a
handful of surgeons in the United States. Both insureds were
therefore referred for treatment to the Plastic Surgery Center, a
New Jersey medical practice specializing in plastic and
reconstructive surgery. As an out-of-network provider,
however, the Center was concerned about how it would be
compensated, so before agreeing to provide care, the Center
contacted Aetna to confirm that it would make payment.

    Aetna agreed. In J.L.’s case, “Aetna contracted with [the
Center] to provide multi-stage breast reconstruction surgery to
J.L., along with related medical services, and to pay [the
Center] a reasonable amount for those services according to the
terms of the Plan.” JA 201–02. This agreement was struck
during telephone conversations between Aetna and Center
employees. In D.W.’s case, as documented in various
contemporaneous notes, a Center employee initially asked
Aetna for a one-off “single case agreement” with a negotiated
rate of payment, but reported back: “(Aetna is stating they



JA 223. Urgent Care is “[c]are for a non-life threatening
condition that requires care by a Provider within 24 hours.” JA
231.


                               5
don’t neg an[y] 4 longer it would be paid at the highest
in[-]network level) however I will still attempt to get approval
for neg payment based on no available providers.” JA 65, 67
(capitalization altered). The notes next reflect that an Aetna
employee called the Center back to confirm that Aetna “agreed
to approve and pay for” D.W.’s surgery and to provide
payment at the “highest in[-]network level.” JA 59. Pursuant
to these alleged oral agreements that “[the Center] and Aetna
entered” in each case, the Center then provided the specified
services “[i]n exchange for,” respectively, payment of a
“reasonable amount” and at the “highest in[-]network level”
under the plans. JA 60, 204.

    Once the Center performed the procedures, however, Aetna
allegedly refused to live up to its end of the bargain. Of the
$292,742 the Center billed for J.L.’s services, Aetna paid only
$95,534.04. 5 Of the $420,750 the Center billed for D.W.’s
services, Aetna paid only $40,230.32. In both cases Aetna
declined to pay the Center anything for some services and paid

   4
      This word appears to be “ant” in the notes. JA 65
(capitalization altered). For present purposes, we assume that
this was merely a typo, but should it become clear with the
benefit of discovery that “ant” has an independent meaning,
that may factor into the District Court’s consideration of any
motion for summary judgment that Aetna may choose to bring.
   5
     Part of J.L.’s procedure was performed by the Center at
an Ambulatory Surgery Center and Aetna paid that facility
$9,271.89. It is not apparent on the face of the complaint
whether that payment was separate from or part of Aetna’s
obligation to the Center.


                               6
less than it allegedly agreed to for others, so the Center brought
suit in New Jersey, claiming breach of contract, unjust
enrichment, and promissory estoppel. Aetna moved to dismiss
the claims as expressly preempted by section 514(a) or,
alternatively, for failure to state a claim. In D.W.’s case, the
Center then cross-moved to file a second amended complaint.
The District Court granted Aetna’s motion to dismiss in both
cases, holding that section 514(a) expressly preempted all
claims and, accordingly, denied the Center’s motion to amend
in D.W.’s case as futile. The Center timely appealed.

     II.     JURISDICTION AND STANDARD OF REVIEW

    The District Court had jurisdiction under 28 U.S.C. § 1332,
and we have jurisdiction under 28 U.S.C. § 1291. We review
a dismissal on ERISA preemption grounds de novo, see
Menkes v. Prudential Ins. Co. of Am., 762 F.3d 285, 289 (3d
Cir. 2014), and we will affirm if, accepting the veracity of
factual allegations in the complaint and drawing all reasonable
inferences in the plaintiff’s favor, the plaintiff failed to plead
“enough facts to state a claim to relief that is plausible on its
face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007);
Phillips v. Cty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008).

                      III.   DISCUSSION

    Defining the contours of ERISA’s express preemption
provision is a nettlesome task. To frame the particular inquiry
here, we review, first, the statutory backdrop for our decision
and, second, relevant developments in the healthcare industry.
With the perspective they provide, we then turn to the Center’s
claims.



                                7
       A.     Statutory Background

    In 1974, in response to mounting public discontent with a
pension system that often failed to provide employees with
promised benefits, Congress enacted ERISA, which set forth
uniform federal standards for not only pension plans, but also
welfare plans—a class of benefit plans in which J.L.’s and
D.W.’s healthcare plans fall. 6 Pub. L. No. 93-406, 88 Stat. 829,
as amended, 29 U.S.C. § 1001 et seq.; see Massachusetts v.
Morash, 490 U.S. 107, 112–13 (1989); DiFelice v. Aetna U.S.
Healthcare, 346 F.3d 442, 454 (3d Cir. 2003) (Becker, J.,
concurring). ERISA’s stated goal was “to promote the
interests of employees and their beneficiaries in employee
benefit plans” by ensuring benefit plans were well managed
and would not leave plan participants short-changed. Shaw v.
Delta Air Lines, Inc., 463 U.S. 85, 90 (1983); see also
29 U.S.C. § 1001(b). To achieve this goal, ERISA “impose[d]
participation, funding, and vesting requirements on pension
plans” and “set[] various uniform standards, including rules
concerning reporting, disclosure, and fiduciary responsibility,
for both pension and welfare plans.” Shaw, 463 U.S. at 91.



   6
      Pension plans “provide[] income deferral or retirement
income,” while welfare plans “provide[] benefits for
contingencies such as illness, accident, disability, death, or
unemployment.” Shaw v. Delta Air Lines, Inc., 463 U.S. 85,
91 n.5 (1983) (citing 29 U.S.C. § 1002(1), (2), (3)). ERISA
governs “any employee benefit plan if it is established or
maintained . . . by any employer engaged in commerce,”
29 U.S.C. § 1003(a), and on appeal neither party disputes that
J.L.’s and D.W.’s healthcare plans are governed by ERISA.


                               8
     These rules protect plan “participants,” 7 i.e., employees
eligible to receive benefits under the plan, and “beneficiaries,” 8
i.e., individuals designated by participants or the terms of the
plan to receive benefits. For example, plans are required to
share information about benefits with participants and
beneficiaries, and to provide the Secretary of Labor with an
annual report on the plan’s financial health. See 29 U.S.C.
§§ 1021, 1022, 1023, 1024, 1025; Gobeille v. Liberty Mut. Ins.
Co., 136 S. Ct. 936, 944–45 (2016) (detailing requirements).
Those involved in the management of plans, i.e., plan
“fiduciar[ies],” 9 must also act “for the exclusive purpose of . . .


   7
       In full, a plan “participant” is:
   [A]ny employee or former employee of an employer, or
   any member or former member of an employee
   organization, who is or may become eligible to receive
   a benefit of any type from an employee benefit plan
   which covers employees of such employer or members
   of such organization, or whose beneficiaries may be
   eligible to receive any such benefit.
29 U.S.C. § 1002(7).
   8
     The statute defines “beneficiary” as: “a person designated
by a participant, or by the terms of an employee benefit plan,
who is or may become entitled to a benefit thereunder.” Id.
§ 1002(8).
   9
     An individual is a “fiduciary” of an ERISA plan “to the
extent (i) he exercises any discretionary authority or
discretionary control respecting management of such plan or
exercises any authority or control respecting management or
disposition of its assets, (ii) he renders investment advice for a

                                   9
providing benefits to participants . . . [and] defraying
reasonable expenses of administering the plan.” 29 U.S.C.
§ 1104(a)(1)(A).

    To provide a uniform enforcement mechanism for these
rules and requirements and to guarantee that the cost of
compliance would not be prohibitive, Congress also put in
place two additional, complementary statutory provisions.
First, it established federal causes of action under section
502(a) that form “a carefully integrated civil enforcement
scheme.” Ingersoll-Rand Co. v. McClendon, 498 U.S. 133,
137 (1990) (internal quotation marks and citation omitted).
Section 502(a) thus created a federal cause of action for plan
beneficiaries and participants to recover benefits due under a
plan or to enforce the terms of the plan.
29 U.S.C. § 1132(a)(1)(B). 10


fee or other compensation, direct or indirect, with respect to
any moneys or other property of such plan, or has any authority
or responsibility to do so, or (iii) he has any discretionary
authority or discretionary responsibility in the administration
of such plan.” 29 U.S.C. § 1002(21)(A).
   10
      Although these provisions are not at issue in this case, we
note, as relevant to ERISA preemption more generally, that the
statute also made these the exclusive remedies available, at
least for those parties. Aetna Health Inc. v. Davila, 542 U.S.
200, 209 (2004). Thus, any state law cause of action that
“duplicates, supplements, or supplants” the remedies set forth
in section 502(a) “conflicts with the clear congressional intent
to make” those remedies exclusive and therefore triggers
conflict preemption. Id.


                               10
    Second, to make clear that ERISA’s mandates supplanted
the patchwork of state law previously in place and to ensure
that plans were not crippled by the administrative cost of
complying with not only ERISA, but also innumerable,
potentially conflicting state laws, see Gobeille, 136 S. Ct. at
943–44; Menkes, 762 F.3d at 293, Congress enacted
section 514(a)—a broad express preemption provision, which
“supersede[s] any and all State laws insofar as they may now
or hereafter relate to any employee benefit plan.”
29 U.S.C. § 1144(a); see Ingersoll-Rand, 498 U.S. at 138. The
scope of “[s]tate laws” that may “relate to” a plan is expansive,
encompassing “all laws, decisions, rules, regulations, or other
State action having the effect of law, of any State.” 29 U.S.C.
§ 1144(c)(1). This includes not only state statutes, but also
common law causes of action. See Menkes, 762 F.3d at 294.

    Recognizing that “[i]f ‘relate to’ were taken to extend to the
furthest stretch of its indeterminacy, then for all practical
purposes pre-emption would never run its course,” N.Y. State
Conference of Blue Cross & Blue Shield Plans v. Travelers Ins.
Co., 514 U.S. 645, 655 (1995), the Supreme Court has sought
to craft a functional test for express preemption, instructing
that a state law “relates to” an employee benefit plan if it has
either (1) a “reference to” or (2) a “connection with” that plan,
Shaw, 463 U.S. at 96–97. The first applies “[w]here a State’s
law acts immediately and exclusively upon ERISA plans . . .
or where the existence of ERISA plans is essential to the law’s
operation.” Gobeille, 136 S. Ct. at 943 (alternations in
original) (citation omitted). The second covers state laws that
“govern[] . . . a central matter of plan administration or
interfere[] with nationally uniform plan administration,” and
those state laws that have “acute, albeit indirect, economic


                               11
effects [that] force an ERISA plan to adopt a certain scheme of
substantive coverage or effectively restrict its choice of
insurers.”     Id. (second alteration in original) (internal
quotations marks and citations omitted). The latter inquiry is
guided by “the objectives of the ERISA statute,” which provide
a blueprint for “the scope of the state law that Congress
understood would survive.” Id. (citation omitted).

   With this statutory background in mind, we turn to
developments in the healthcare industry that give rise to the
Center’s claims in this case.

        B.    Relevant Developments in the Healthcare
              Profession 11

    At the core of modern developments in welfare plan
structure are two competing values: choice and cost.
Historically, doctors in the United States worked on a “fee-for-
service” basis. Pegram v. Herdrich, 530 U.S. 211, 218 (2000).
Doctors established set fee schedules for their services and
treated patients in accordance with their best judgment, billing

   11
      We provide only a brief overview of the emergence of
managed care as relevant to a basic understanding of the role
of out-of-network providers in that setting and the different
payment methods that pertain to this category of providers. A
comprehensive treatment of the subject, to which we do not
aspire here, can be found in Paul Starr’s Pulitzer Prize-winning
book The Social Transformation of American Medicine. See
generally Paul Starr, The Social Transformation of American
Medicine: The Rise of a Sovereign Profession and the Making
of a Vast Industry (1982).


                              12
either the patient or an insurer for the costs of services after
they were provided. See id. The incentive under this system
generally was for healthcare providers to provide patients with
“more care, not less,” but that, in turn, gave rise to concerns
about mounting healthcare costs that outstripped the value of
care provided. Id. Responding to a perceived need to cut costs,
starting in the 1960s and continuing through today, welfare
plans increasingly shifted to “managed care” models of
healthcare, epitomized by Health Maintenance Organizations
(HMOs) and Preferred Provider Organizations (PPOs). Id. at
218–19; see also DiFelice, 346 F.3d at 464 (Becker, J.,
concurring); J. Scott Andresen, Is Utilization Review the
Practice of Medicine?, Implications for Managed Care
Administrators, 19 J. Legal Med. 431, 431 & n.6 (1998).

    Managed care organizations aim to reduce healthcare costs
without sacrificing quality of care by creating networks of
doctors or preferred providers who enter into provider
agreements with set fee arrangements and agree to adhere to
certain cost-cutting measures in exchange for a steady stream
of patients. 12 See, e.g., CardioNet, Inc. v. Cigna Health Corp.,

   12
      Perceived tension between the goals of cost effectiveness
and quality of care has spawned a robust debate over the merits
of managed care.         See, e.g., Kent G. Rutter, Note,
Democratizing HMO Regulation to Enforce the “Rule of
Rescue,” 30 U. Mich. J.L. Reform 147, 154 (1996) (explaining
that proponents of managed care “maintain that their plans
reduce health care costs by cutting waste and by avoiding
serious illness through an emphasis on preventative care”
while critics contend that the “cost-reducing techniques” harm
the quality of care by “deny[ing] patients the ‘medically
necessary’ treatment that HMOs are obligated to provide”

                               13
751 F.3d 165, 168–69 (3d Cir. 2014) (describing provider
agreement); Pascack Valley Hosp., Inc. v. Local 464 A UFCW
Welfare Reimbursement Plan, 388 F.3d 393, 402–03 (3d Cir.
2004) (citing Blue Cross of Cal. v. Anesthesia Care Assocs.
Med. Grp., Inc., 187 F.3d 1045, 1050–54 (9th Cir. 1999))
(same); see also Gregory F. Jacob, A Pox on Both Their
Houses: North Cypress Med. Ctr. Op. Co., Ltd. v. Aetna Life
Ins. Co., 26 ERISA Litig. Rep., Nov. 2018 (describing the
bargain in-network providers strike: “reduced compensation”
in exchange for “increased patient volume”).           These
organizations, in essence, restrict an individual’s choice of
healthcare providers in exchange for access to and cost
effectiveness of the healthcare they provide.

    In striving for efficiency, managed care organizations have
a strong incentive simultaneously to bring providers in-
network, which over time increases the network’s bargaining
power, and to reduce unexpected charges from out-of-network
providers, whose billing practices may vary significantly from
those of in-network providers. See Am. Orthopedic & Sports
Med. v. Indep. Blue Cross Blue Shield, 890 F.3d 445, 452 (3d
Cir. 2018). To achieve these interlocking goals, many plans,
including J.L.’s and D.W.’s, restrict or discourage the use of
out-of-network providers.        See Kent G. Rutter, Note,
Democratizing HMO Regulation to Enforce the “Rule of
Rescue,” 30 U. Mich. J.L. Reform 147, 150 (1996). But as
apparent in the consolidated cases before us, in-network
providers are not always able to meet an individual’s
healthcare needs, and in other cases, an individual may seek


(citation omitted)). The merits of that evolving debate are
beyond the scope of this opinion.


                              14
out-of-network care either unwittingly or out of necessity.
These circumstances raise one of the questions at the core of
this case: Must out-of-network providers seek payment from
patients upfront, or are there viable alternative avenues to
secure compensation for services provided?

    Until recently, one oft-traveled avenue has been the
“assignment of benefits,” allowing the provider to submit
claims to and receive payment directly from insurers in the
patient’s stead. See CardioNet, 751 F.3d at 179 (citation
omitted). Assignments became commonplace because only
plan “participant[s]” and “beneficiar[ies],” not healthcare
providers, are expressly authorized to bring section 502(a)
causes of action. 29 U.S.C. § 1132(a)(1)(B); see Pascack
Valley Hosp., 388 F.3d at 400; see also DB Healthcare, LLC v.
Blue Cross Blue Shield of Ariz., Inc., 852 F.3d 868, 875 (9th
Cir. 2017) (collecting cases). But a valid assignment allows a
healthcare provider to stand in the shoes of the “participant” or
“beneficiary” and thereby to obtain not only the right to
benefits due under the plan, but also the capacity to bring suit
for non-payment under section 502(a). See N. Jersey Brain &
Spine Ctr. v. Aetna, Inc., 801 F.3d 369, 372–73 (3d Cir. 2015);
CardioNet, 751 F.3d at 176 n.10. Thus, for a time,
practitioners, almost universally, obtained assignments of
benefits from patients. Am. Orthopedic & Sports Med., 890
F.3d at 451.

    Not so in recent years. To curtail this new fount of section
502(a) litigation, decrease their exposure to out-of-network
claims, and encourage providers to come in network, insurers
began inserting anti-assignment provisions in plans. Id. at 450.
Anti-assignment provisions place out-of-network providers in
the unenviable position of having to “bill[] the beneficiary


                               15
directly” and, should payment not be forthcoming, of having
either to “rely on the beneficiary to maintain an ERISA suit”
or to sue the beneficiary directly. CardioNet, 751 F.3d at 179
(citation omitted). Neither option for recouping compensation
is likely to optimize resources or be good for business. See Am.
Orthopedic & Sports Med., 890 F.3d at 451. Nonetheless, as a
matter of federal common law, we recently joined our sister
circuits in holding that anti-assignment provisions, like other
unambiguous terms in a contract, are enforceable. See id. at
453. While we left open the possibility that a patient could
grant her provider a valid power of attorney to pursue claims
for benefits on her behalf, see id. at 454–55, for most out-of-
network providers, the rising prevalence of anti-assignment
provisions signals the proverbial end of the road for relief
under section 502(a). The anti-assignment provision in D.W.’s
plan is emblematic of this trend.

    In response, out-of-network providers like the Center have
attempted to secure a new foothold—a promise of payment
from the insurer in advance of any services. And that, in turn,
has given rise to a different class of claims for non-payment—
common law claims like those here, including for breach of
contract, unjust enrichment, and promissory estoppel. Aetna
does not dispute that such claims would not be preempted if
they sought to enforce a “single standalone agreement” that
made no mention of the plan and explicitly identified the
discrete services to be performed and the “dollar amount” for
those services. Oral Arg. Tr. at 35–36. In that circumstance,
Aetna concedes, the claims would not “relate to” an ERISA
plan but to a freestanding contract, and they would seek not to
recoup benefits due under the terms of the plan, but to enforce
obligations that arose out of an oral promise of payment made
“precisely because there [was] no ERISA plan coverage.”


                              16
Mem’l Hosp. Sys. v. Northbrook Life Ins. Co., 904 F.2d 236,
246 (5th Cir. 1990). 13 To put a fine point on it, those claims
could not be brought under section 502(a), even by J.L. or
D.W., because Aetna’s alleged liability would flow not from
the plans, but from an independent agreement reached between
the Center and Aetna to which neither J.L. nor D.W. was a
party. See Access Mediquip L.L.C. v. UnitedHealthcare Ins.
Co., 662 F.3d 376, 383, 385–86 (5th Cir.), rehearing en banc
granted, 678 F.3d 940 (5th Cir.), opinion reinstated, 698 F.3d
229 (5th Cir. 2012) (en banc); Hospice of Metro Denver, Inc.
v. Grp. Health Ins. of Okla., Inc., 944 F.2d 752, 754, 756 (10th
Cir. 1991); Mem’l Hosp., 904 F.2d at 250.

    And here we come to the crux of the problem. As out-of-
network providers migrate from accepting assignment of plan
benefits from the insured to forming their own agreements with
the insurers, many have not yet developed a standard form of
contract. 14 Instead, as borne out in the case before us, they

   13
       See also In Home Health, Inc. v. Prudential Ins. Co. of
Am., 101 F.3d 600, 605–06 (8th Cir. 1996); Meadows v.
Emp’rs Health Ins., 47 F.3d 1006, 1010 (9th Cir. 1995);
Hospice of Metro Denver, Inc. v. Grp. Health Ins. of Okla.,
Inc., 944 F.2d 752, 754–55 (10th Cir. 1991).
   14
       It is odd indeed that a pre-service agreement that sets
forth the services to be provided alongside the dollar amounts
to be paid is not yet common practice for out-of-network
providers, particularly where a given provider operates as a
large-scale, sophisticated business entity, as it would provide
both parties with clarity and avoid the thicket of issues we find
ourselves in today.


                               17
enter into ad hoc arrangements in which the provider agrees to
render services (which are not covered by the terms of the plan)
in exchange for a promise of payment by the insurer. But for
those payment terms, as here, the parties sometimes default to
the rate of payment under the plan. And that default resurrects
the question of whether a subsequent claim for nonpayment
then “relate[s] to” the plan and is therefore preempted after all.
To that preemption question, we now turn.

       C.     The Center’s Breach of Contract and
              Promissory Estoppel Claims

    As we confront this case at the motion to dismiss stage, the
parameters of our analysis are shaped by our standard of
review, and we must let the Center’s claims proceed if,
“accept[ing] all factual allegations in the complaint as true and
draw[ing] all reasonable inferences” in the Center’s favor, we
find it has stated a claim “that is plausible on its face.” Menkes,
762 F.3d at 290 (citation omitted). As explained below, the
Center has plausibly pleaded breach of contract and
promissory estoppel claims that do not “relate to” ERISA plans
under either of the two definitions: (1) the causes of action do
not require impermissible “reference to” ERISA plans because
they are not claims for benefits due under an ERISA plan and
are not otherwise premised on ERISA plans; and (2) the claims
do not have a “connection with” ERISA plans because they do
not arise out of a relationship ERISA intended to govern,
because they do not “interfere[] with nationally uniform plan
administration,” and because holding these claims preempted
would undermine ERISA’s stated purpose.




                                18
        1. The Center’s contract and promissory estoppel
           claims as pleaded do not require impermissible
           “reference to” ERISA plans

    Courts have devised a variety of formulations for the types
of claims that make impermissible “reference to” ERISA plans.
The Supreme Court has defined this class of claims to include
not only those that “act[] immediately and exclusively upon
ERISA plans,” Gobeille, 136 S. Ct. at 943 (citation omitted),
but also, as relevant here, those “premised on” the plan,15
Ingersoll-Rand, 498 U.S. at 140. And claims in this second
category, it has described variously as claims “where the
existence of ERISA plans is essential to the law’s operation,”
Gobeille, 136 S. Ct. at 943 (citation omitted); where the
“court’s inquiry must be directed to the plan,” Ingersoll-Rand,
498 U.S. at 140; where “the existence of [an ERISA] plan is a


   15
       We treat the “premised on” test as a subset of the inquiry
into whether a state law has an impermissible “reference to”
ERISA plans, consistent with Supreme Court precedent. See
Gobeille, 136 S. Ct. at 943 (defining “reference to” as covering
those state laws that act “immediately and exclusively upon
ERISA plans . . . or where the existence of ERISA plans is
essential to the law’s operation” (alteration in original)
(citation omitted)); Cal. Div. of Labor Standards Enf’t v.
Dillingham Constr., N.A., 519 U.S. 316, 324–25 (1997)
(concluding that “common-law cause[s] of action premised on
the existence of an ERISA plan” are preempted under the
“reference to” inquiry); cf. Nat’l Sec. Sys., Inc. v. Iola, 700 F.3d
65, 83–84 (3d Cir. 2012) (holding that claims “premised on”
an ERISA plan have “a connection with or reference to such a
plan” (citation omitted)).


                                19
critical factor in establishing liability,” id. at 139–40; and
where “there simply is no cause of action if there is no plan,”
id. at 140.

    From these variegated formulations we distill two
overlapping categories of claims “premised on” ERISA plans:
(a) claims predicated on the plan or plan administration, e.g.,
claims for benefits due under a plan, Menkes, 762 F.3d at 296
(citing Pilot Life Insurance Co. v. Dedeaux, 481 U.S. 41, 47–
48 (1987)); Kollman v. Hewitt Assocs., LLC, 487 F.3d 139, 150
(3d Cir. 2007), or where the plan “is a critical factor in
establishing liability,” Ingersoll-Rand, 498 U.S. at 139–40;
accord De Buono v. NYSA-ILA Med. & Clinical Servs. Fund,
520 U.S. 806, 815 & n.14 (1997); and (b) claims that “involve
construction of [the] plan[],” 1975 Salaried Retirement Plan
for Eligible Emps. of Crucible, Inc. v. Nobers, 968 F.2d 401,
406 (3d Cir. 1992), or “require interpreting the plan’s terms,”
Menkes, 762 F.3d at 294. Below we address: (a) whether the
breach of contract and promissory estoppel claims plausibly
seek to enforce obligations independent of the plans rather than
claims for benefits due under the plans or claims otherwise
impermissibly tethered to the plans; (b) whether the claims as
pleaded require impermissible construction or interpretation of
the plans; and (c) Aetna’s arguments in support of preemption.

          a. The claims plausibly seek to enforce
             obligations independent of the plan

    Whether the Center seeks to enforce obligations
independent of the plan turns on whether the parties agreed (i)
that Aetna would provide payment for all services necessary to
perform the respective surgeries, leaving only the amount of
payment pegged to the terms of the plan; or (ii) that the scope


                              20
of coverage, as well as payment, would be limited to the terms
of the plans—leaving open the possibility that some services
would not be compensated at all.

    Aetna argues the latter, relying on Pilot Life Insurance Co.
v. Dedeaux, 481 U.S. 41, 48 (1987), Menkes, 762 F.3d at 295–
96, and Kollman, 487 F.3d at 150. But those cases are
inapposite. The common law claims in each were brought by
plan participants or beneficiaries, alleging either that the
insurer or plan administrator, or an agent thereof, had
improperly processed or misrepresented the benefits due under
the plan. Pilot Life, 481 U.S. at 43–44, 48; Menkes, 762 F.3d
at 294–96; Kollman, 487 F.3d at 150. Those plaintiffs sought
to enforce legal obligations flowing from the four corners of
their ERISA plans.

    The claims here, on the other hand, arose precisely because
there was no coverage under the plans for services performed
by an out-of-network provider like the Center. In contrast to
in-network providers whose relationship with Aetna is
governed by a provider agreement that typically cross-
references the ERISA plan and limits payment to “covered
services,” defined as those claims recognized as “medically
necessary” under the terms of the relevant ERISA plan, see,
e.g., Lone Star OB/GYN Assocs. v. Aetna Health Inc., 579 F.3d
525, 530 (5th Cir. 2009), out-of-network providers do not have
pre-existing contractual relationships with the insurer. Thus,
absent a separate agreement between Aetna and the Center,
there was no obligation for the Center to provide services to
the plan participants, no obligation for Aetna to pay the Center
for its services, and no agreement that compensation would be




                              21
limited to benefits covered under the plan. 16 And the
complaints allege such separate agreements here: As pleaded,
the parties agreed that the Center would perform the surgeries
and related medical care in exchange for payment from Aetna
of a “reasonable amount” under J.L.’s plan and at the “highest
in[-]network level” under D.W.’s plan for all component
services (not merely those services covered under the terms of
the plan). JA 59, 201–02.




   16
      We offer no opinion on the circumstances in which in-
network providers could bring state law claims for breach of
contract arising out of the provider agreement or an equitable
cause of action, such as promissory estoppel or quantum
meruit, arising out of an insurer’s promise of payment without
running afoul of section 514(a), which would depend on the
content of the claims and the terms of the provider agreement.
See, e.g., Pascack, 388 F.3d at 403; Kolbe & Kolbe Health &
Welfare Benefit Plan v. Med. Coll. of Wis., Inc., 657 F.3d 496,
504–05 (7th Cir. 2011); Lone Star, 579 F.3d at 530; Blue Cross,
187 F.3d at 1050–54. Nor do we suggest that out-of-network
providers are categorically exempt from section 514(a), with
carte blanche to file suit for services rendered to plan
participants. See, e.g., Access Mediquip, 662 F.3d at 386–87
(holding section 514(a) preempts unjust enrichment and
quantum meruit claims premised on obligations imposed by
ERISA plans rather than an independent promise of payment).
Whether any agreement was reached with a provider, and the
extent to which the terms of that agreement are so intertwined
with the plan as to “relate to” an ERISA plan, are questions that
depend on the facts and circumstances of the given case.


                               22
   Aetna’s argument that the Center agreed to be bound by all
terms and conditions of the plan—in effect, that it agreed to be
paid as if it were an in-network provider—is simply not
apparent on the face of the pleadings. In the case of J.L., the
Center alleges that “Aetna contracted with [the Center] to
provide multi-stage breast reconstruction surgery to J.L., along
with related medical services, and to pay [the Center] a
reasonable amount for those services according to the terms of
the Plan.” JA 201–02. Accepting the pleadings as true and
drawing all inferences in the Center’s favor, as we must at the
motion to dismiss stage, we conclude that only the amount of
payment and not the scope of services was to be determined in
accordance with the terms of the plan; the services agreed to
be compensated were all those required to perform J.L.’s
procedure.

    The same holds true in D.W.’s case. We may reasonably
infer from notes attached to the complaint that the Center
identified at least eighteen distinct CPT 17 codes associated with
D.W.’s surgery; the Center also alleges that a Center employee
faxed D.W.’s clinical information to Aetna, requesting a
“single case agreement” and was assured that if Aetna agreed
to pay for the procedure it would instead pay the Center “at the
highest in[-]network level,” JA 65, 67 (capitalization altered);
and the Center alleges that an Aetna employee subsequently
called the Center to confirm that Aetna “had agreed to approve

   17
      “CPT” stands for “Current Procedural Terminology” and
is defined in D.W.’s plan as “the most recent edition of an
annually revised listing published by the American Medical
Association which assigns numerical codes to procedures and
categories of medical care.” JA 81.


                               23
and pay” for the procedure, JA 59. These allegations plausibly
support the inference that Aetna agreed to pay for all
component services of D.W.’s surgery at the highest in-
network level.

    Aetna points to other evidence supporting a contrary
inference. For example, it highlights the portion of the notes
reflecting that it “do[es]n’t neg[otiate] [single case agreements]
an[y] longer,” JA 65 (capitalization altered), and the language
in its precertification letter 18—which was addressed to D.W.

   18
       The same day Aetna allegedly confirmed to the Center
that it had approved D.W.’s surgery and would make payment
at the “highest in[-]network level,” Aetna also sent the Center
a copy of a precertification letter, addressed to its insured,
D.W., identifying fourteen services that had been approved.
JA 59. The letter stated, among other things, that “[y]our plan
does not have out-of-network benefits”; that coverage for the
fourteen services was “approved, subject to the requirements
of this letter”; and that approval was “at an in-network benefit
level,” subject to “any applicable dollar limits.” Defs.’ Mot. to
Dismiss Ex. 2, ECF No. 12-2, at 1, 7–8. It also advised that
reimbursement would “be based on standard coding and
bundling logic and any mutually agreed upon contracted or
negotiated rates, subject to any and all copays or coinsurance
requirements”; that D.W. would “be responsible . . . for in-
network cost-sharing requirements”; and that D.W. “should
refer to the plan document to determine exclusions and
limitations under the plan.” Id. at 1, 7. Though the
precertification letter is extraneous to the pleadings, we
consider it because it is integral to the pleadings. See Angstadt
v. Midd-W. Sch. Dist., 377 F.3d 338, 342 (3d Cir. 2004).


                               24
but also copied to the Center—stating that “the member’s
eligibility for coverage under the plan [has been verified]” and
that reimbursement would be based on “standard coding and
bundling logic and any mutually agreed upon contracted or
negotiated rates,” Defs.’ Mot. to Dismiss Ex. 2, ECF No. 12-2,
at 1, 7. From this evidence, Aetna argues we may plausibly
infer that the agreement was for the benefits and not merely the
rate of payment set forth in the plan. Be that as it may, it does
not render the Center’s inferences implausible: The notes go
on to document other statements supporting the Center’s
position, and Aetna concedes the precertification letter was
drafted not for the benefit of the Center, but for the benefit of
its insured, D.W.

    In short, even assuming a different inference is also
plausible, at the motion to dismiss stage, we must view the
allegations in the light most favorable to the Center and draw
all reasonable inferences in the Center’s favor. When we do
so, the claims as pleaded are not for benefits due under the
plans. Nor are the claims otherwise impermissibly predicated
on the plan or plan administration. Because, as alleged, it is
Aetna’s oral offers or oral promises (as the case may be) rather
than the terms of the plan that define the scope of Aetna’s duty,
the plans are not “critical factor[s] in establishing liability.” 19
See Ingersoll-Rand, 498 U.S. at 139–40.

   19
      To establish its breach of contract claims, the Center may
put forth evidence of oral offers and acceptances giving rise to
non-plan-based duties, see Williams v. Vito, 838 A.2d 556, 560
(N.J. Super. Ct. Law. Div. 2003) (“[A]bsent a statute to the
contrary, an oral offer and acceptance constitutes a binding
agreement . . . .”), and evidence of its performance as valuable
consideration for that binding agreement, see Martindale v.

                                25
          b. The claims as pleaded do not require
             interpretation or construction of ERISA plans

    Expounding on the scope of this class of preempted claims,
we have clarified that a claim that “turns largely on legal duties
generated outside the ERISA context,” and “requires only a
cursory examination of the plan” is “not the sort of exacting,
tedious, or duplicative inquiry that the preemption doctrine is
intended to bar.” Iola, 700 F.3d at 85 (internal quotation marks
and citation omitted).

    Aetna argues that the Center’s claims are so enmeshed with
the plans as to require interpretation or construction of the
plans. But assuming the Center can establish an agreement to
pay for all component services, it is not apparent from the
pleadings why more than a cursory review of either J.L.’s or
D.W.’s plan would be required to establish “a reasonable
amount . . . according to the terms of the Plan,” JA 201–02, or
the “highest in[-]network level,” JA 59, for each service.




Sandvik, Inc., 800 A.2d 872, 878–79 (N.J. 2002) (citation
omitted); see also Restatement (Second) of Contracts § 71
(1981). The same holds true for the promissory estoppel
claims. As alleged, the plans are not “critical,” De Buono, 520
U.S. at 815, to the demonstration of “(1) a clear and definite
promise; (2) made with the expectation that the promisee will
rely on it; (3) reasonable reliance; and (4) definite and
substantial detriment,” Toll Bros., Inc. v. Bd. of Chosen
Freeholders, 944 A.2d 1, 19 (N.J. 2008).


                               26
    In neither its briefing nor at oral argument did Aetna
explain why these determinations of in-network payment rates
would be particularly complex or require careful study of the
intricacies of the plans. To the contrary, the reasonable
inference from the pleadings is that, consistent with
representations Aetna has made in other cases, the
determination is as simple as checking the “usual, customary,
and reasonable (‘UCR’) rate . . . based on an industry-standard
schedule” for the services in question, see, e.g., McCulloch
Orthopaedic Surgical Servs., PLLC v. Aetna Inc., 857 F.3d
141, 144 (2d Cir. 2017), or reviewing the fee schedule attached
to Aetna’s in-network provider agreements, see Lone Star, 579
F.3d at 530. The former would be precisely the type of
“cursory examination of the plan” that we have held does not
trigger express preemption, see Iola, 700 F.3d at 85, and the
latter would not require any examination of the plan, but only
of the fee schedule Aetna uses with its providers, see Kolbe &
Kolbe Health & Welfare Benefit Plan v. Med. Coll. of Wis.,
Inc., 657 F.3d 496, 504–05 (7th Cir. 2011). Such inquiries do
not entail “the sort of exacting, tedious, or duplicative inquiry
that the preemption doctrine is intended to bar.” Iola, 700 F.3d
at 85.

          c. Aetna’s counterarguments

   Aetna offers essentially two counterarguments. Neither is
persuasive.

    First, it contends that any reference to an ERISA plan in the
calculation of damages—no matter the degree of examination
required—triggers express preemption. But that argument is
belied by Iola, where we held that misrepresentation claims
based on statements made prior to the adoption of an ERISA


                               27
plan were not preempted even though establishment of those
claims, and in turn the court’s assessment of damages,
“require[d] . . . a cursory examination of the plan provisions,”
including “whether the representations . . . were at odds with
the plan itself, or with the plaintiffs’ understanding of the
benefits afforded by the plans.” 700 F.3d at 85. Likewise, the
Center’s core contention—that oral promises of payment
induced it to act to its detriment—and the proof that would be
required involve, at most, only a “cursory examination” of plan
provisions “turn[ing] largely on legal duties generated outside
the ERISA context.” Id. (internal quotation marks and citation
omitted). 20

   Second, Aetna argues that the Center’s claims are premised
on ERISA plans because the plans required preapproval of


   20
      The sole authority on which Aetna relies, Nobers, is also
readily distinguishable. Nobers held common law claims
preempted because the calculation of damages required
“construction of [an] ERISA plan[].” 968 F.2d at 406. But the
Nobers plaintiffs were a class of employees who alleged that
“they [sh]ould have received substantially greater pension and
related benefits,” id. at 404, assessing damages therefore would
have required benefit calculations that “sit[] within the
heartland of ERISA,” Iola, 700 F.3d at 84; see Kollman, 487
F.3d at 149–50. The Center, on the other hand, does not allege
that Aetna’s liability flows from its promise to provide J.L. and
D.W. benefits under their ERISA plans; it alleges “a separate
promise that references various [ERISA] benefit plans, none of
which directly applies to [the Center] by its terms, as a means
of establishing the value of that promise,” Stevenson v. Bank of
N.Y. Co., 609 F.3d 56, 60–61 (2d Cir. 2010).


                               28
J.L.’s and D.W.’s surgeries. Aetna places great weight on this
point, presumably because before concluding that an out-of-
network provider’s state law claims were not completely
preempted by section 502(a), 21 the Second Circuit in
McCulloch observed that the provider “was not required by the
plan to pre-approve coverage for the surgeries that he
performed.” 857 F.3d at 150–51. Of course, we are not bound
by this out-of-circuit precedent, but Aetna misapprehends it in
any event.

   In context, the McCulloch court was contrasting a prior
case where it had found that the preapproval required of in-
network providers under the plan was “inextricably intertwined
with the interpretation of Plan coverage and benefits,”
Montefiore Med. Ctr. v. Teamsters Local 272, 642 F.3d 321,
330, 332 (2d Cir. 2011); see McCulloch, 857 F.3d at 150–51.
Moreover, the court went on to explain that when it came to
out-of-network providers, the ERISA plan imposed a duty only
on the plan participant or beneficiary to seek precertification;
as they are neither parties to the plan nor parties to an in-
network provider agreement, there was no corresponding duty
on out-of-network providers. McCulloch, 857 F.3d at 150–51,
151 n.7. Rather, the provider there, like the Center, “called
Aetna for [its] own benefit to decide whether [it] would accept
or reject a potential patient who sought [its] out-of-network

   21
       Complete preemption is a separate, jurisdictional
doctrine that in this context arises out of section 502(a).
Davila, 542 U.S. at 210. Under this doctrine, if a litigant could
have brought a cause of action under section 502(a) and if “no
other independent legal duty . . . is implicated by [the]
defendant’s actions,” the claim is federal in nature. Id.


                               29
services,” id. at 151, and the plan “simply provide[d] the
context for” the out-of-network provider’s claim, id. at 149.

    In short, McCulloch, if anything, weighs against express
preemption here, as does other case law: The mere fact that a
claim arises against the factual backdrop of an ERISA plan
does not mean it makes “reference to” that plan. See Travelers,
514 U.S. at 661 (“[P]re-emption does not occur . . . if the state
law has only a tenuous, remote, or peripheral connection with
covered plans . . . .” (second alteration in original) (citation
omitted)); Iola, 700 F.3d at 85 (holding section 514(a) does not
preempt misrepresentation claims arising out of statements
made about an ERISA plan prior to the plan’s adoption);
Dishman v. UNUM Life Ins. Co. of Am., 269 F.3d 974, 983–84
(9th Cir. 2001) (concluding that state law claims were not
expressly preempted even though there was “clearly some
relationship” to an ERISA plan); see also Morris B. Silver
M.D., Inc. v. Int’l Longshore & Warehouse Union, 206 Cal.
Rptr. 3d 461, 472 (Ct. App. 2016) (“[T]he fact [that] an ERISA
plan is an initial step in the causation chain, without more, is
too remote of a relationship with the covered plan to support a
finding of preemption.”).

    Because the Center’s claims, as pleaded, neither seek
benefits due under the plans, nor require more than a cursory
examination of the plans, they do not make impermissible
“reference to” the plans.




                               30
       2. The Center’s contract and promissory estoppel
          claims do not have a “connection with” ERISA
          plans

    State laws have a “connection with” ERISA plans if they
“govern, or interfere with the uniformity of, plan
administration,” Gobeille, 136 S. Ct. at 943, or if the “acute,
albeit indirect, economic effects of the state law force an
ERISA plan to adopt a certain scheme of substantive coverage
or effectively restrict its choice of insurers,” id. (internal
quotation marks and citation omitted). In making this
assessment, we consider “the objectives of the ERISA statute
as a guide to the scope of the state law that Congress
understood would survive and the nature of the effect of the
state law on ERISA plans.” Id. (internal quotation marks and
citation omitted); accord Menkes, 762 F.3d at 294. Distilling
these tests, we and other Courts of Appeals focus primarily on
whether claims (a) “directly affect the relationship among the
traditional ERISA entities—the employer, the plan and its
fiduciaries, and the participants and beneficiaries,” Mem’l
Hosp., 904 F.2d at 245, 248 (citing Mackey v. Lanier
Collection Agency & Serv., Inc., 486 U.S. 825, 833 (1988));
Access Mediquip, 662 F.3d at 385–86 (same); (b) interfere with
plan administration, Menkes, 762 F.3d at 295–96; Access
Mediquip, 662 F.3d at 385; or (c) undercut ERISA’s stated
purpose, Iola, 700 F.3d at 84–85; Kollman, 487 F.3d at 149.
As pleaded, it is plausible that the Center’s claims do not
implicate any of these avenues for an impermissible
“connection with” ERISA plans.




                              31
           a. The claims plausibly arise out of a relationship
              that ERISA did not intend to govern

    ERISA governs relationships among “the employer, the
plan and its fiduciaries, and the participants and beneficiaries.”
Mem’l Hosp., 904 F.2d at 245 (citing Mackey, 486 U.S. at 833);
accord Access Mediquip, 662 F.3d at 385–86. As our sister
circuits have recognized, ERISA struck a “bargain” between
the interests of participants and beneficiaries on the one hand
and insurers on the other: Section 502(a) created federal
causes of action that allow plan participants and beneficiaries
to enforce ERISA’s mandates, and section 514(a) limits
potential sources of plan liability, providing employers and
plan administrators with some measure of security. See, e.g.,
Mem’l Hosp., 904 F.2d at 249.

    Critically, however, out-of-network healthcare providers
“were not . . . party to this bargain.” Id. Absent the assignment
of benefits, a healthcare provider may not pursue its own
section 502(a) cause of action, N. Jersey Brain & Spine Ctr.,
801 F.3d at 372, and section 514(a) works predominately to the
benefit of insurers, employers, and plan participants by
reducing compliance and litigation costs and thereby
increasing the resources employers have to invest in providing
high-quality plans for their employees, Rush Prudential HMO,
Inc. v. Moran, 536 U.S. 355, 379 (2002). Health care providers
such as the Center orbit the periphery of this bargain, but their
rights and remedies are not delineated in ERISA’s substantive
or remedial provisions.

   For this reason, the Courts of Appeals have
overwhelmingly held that claims akin to the Center’s are not
expressly preempted because, as pleaded, they arise out of a


                               32
relationship ERISA did not intend to govern at all. See Access
Mediquip, 662 F.3d at 385–86; In Home Health, Inc. v.
Prudential Ins. Co. of Am., 101 F.3d 600, 605–06 (8th Cir.
1996); Meadows v. Emp’rs Health Ins., 47 F.3d 1006, 1009–
11 (9th Cir. 1995); Lordmann Enters., Inc. v. Equicor, Inc., 32
F.3d 1529, 1533–34 (11th Cir. 1994); see also Franciscan
Skemp Healthcare, Inc. v. Cent. States Joint Bd. Health &
Welfare Tr. Fund, 538 F.3d 594, 599–601 (7th Cir. 2008)
(citing this line of cases approvingly); Gerosa v. Savasta &
Co., 329 F.3d 317, 324 (2d Cir. 2003) (collecting cases).
Indeed, the only circuit to reach the opposite conclusion is the
Sixth Circuit in Cromwell v. Equicor-Equitable HCA Corp.,
944 F.2d 1272 (6th Cir. 1991), which has been aptly criticized
as a “poorly reasoned outlier in the face of the strong trend in
the bulk of the cases considering healthcare-provider claims,”
Franciscan Skemp, 538 F.3d at 601. 22 The Department of
Labor, too, has noted the “overwhelming and persuasive
consensus” that state law claims brought by third-party health

   22
      The Cromwell majority held that the provider’s state law
claims were all brought “as grounds for the recovery of benefits
from the [ERISA] plan for health care services rendered.” 944
F.2d at 1276 (emphasis added). But it painted with too broad
a brush: While this may have been true for the breach of
contract and good faith claims that were brought pursuant to an
assignment of benefits and for breach of the ERISA plan itself,
it was not for the promissory estoppel and negligent
misrepresentation claims, where the legal duty allegedly
breached arose not from the plan but from oral promises made
by plan administrators and where the healthcare providers were
seeking damages for reliance upon those promises. See id. at
1283–85 (Jones, J., dissenting).


                              33
care providers against ERISA plan administrators implicate
“separate relationship[s]” from those ERISA was intended to
govern and thus, generally, “are not . . . preempted under
section 514.” 23

    We join that consensus today and conclude that the
relationship between the Center, an out-of-network provider,
and Aetna, as plan administrator, does not itself create an
impermissible “connection with” the plans in this case.




   23
       Brief for the Secretary of Labor as Amicus Curiae in
Support of Plaintiff-Appellant at 23, 25, McCulloch
Orthopaedic Surgical Servs., PLLC v. United Healthcare Ins.
Co., No. 15-2144 (2d Cir. Oct. 22, 2015),
https://www.dol.gov/sol/media/briefs/mcculloch_2015-10-
22.pdf. While the Secretary’s brief is properly the subject of
judicial notice, see Vanderklok v. United States, 868 F.3d 189,
205 n.16 (3d Cir. 2017), it is entitled to only Skidmore
deference, both because it is a litigation position, Smiley v. E.I.
Dupont de Nemours & Co., 839 F.3d 325, 329 (3d Cir. 2016),
and because “[w]e do not defer to an agency’s view concerning
preemption, but such views . . . are entitled to respect . . . to the
extent [they] ha[ve] the power to persuade,” Shuker v. Smith &
Nephew, PLC, 885 F.3d 760, 773 n.11 (3d Cir. 2018) (first and
second alterations added) (internal quotation marks omitted)
(quoting Sikkelee v. Precision Airmotive Corp., 822 F.3d 680,
693–94 (3d Cir. 2016)); see also Skidmore v. Swift & Co., 323
U.S. 134, 140 (1944).


                                 34
           b. As pleaded, the claims do not interfere with
              the administration of either plan

     Aetna next argues the Center’s claims have a “connection
with” the plans because litigating those claims would
impermissibly interfere with plan administration and have
severe economic consequences for plan coverage and insurer
choices. Specifically, Aetna urges us to adopt the view of the
Fifth Circuit in Access Mediquip, 662 F.3d at 386–87, that
litigating the provider’s unjust enrichment and quantum meruit
claims in that case would open the floodgates for any
healthcare provider to challenge the compensation it receives
under an ERISA plan.

    We decline Aetna’s suggestion because those floodgate
concerns are inapplicable. The unjust enrichment and quantum
meruit claims in Access Mediquip “depend[ed] on [the
provider’s] assertion that without its services the patients’
ERISA plans would have obliged [the insurer] to reimburse a
different provider for the same services.” 662 F.3d at 378.
Those claims arose, in other words, not from any independent
agreement, oral or otherwise, to provide services for payment,
but from the obligations under the plan. For that reason, the
provider sought recovery “only to the extent that the patients’
ERISA plans confer on their participants and beneficiaries a
right to coverage for the services provided.” Id. at 386
(emphasis added).

    Here, by contrast, the Center’s breach of contract and
promissory estoppel claims do not allege that J.L.’s and D.W.’s
plans covered the services at all; instead, the Center alleges that
Aetna must pay the costs of these services only because, and to
the extent, it promised the Center that it would. See Morris B.


                                35
Silver, 206 Cal. Rptr. 3d at 472 n.16 (2016) (distinguishing
Access Mediquip on this ground). The Center’s claims, in
other words, are much more analogous to the misrepresentation
claim that the Access Mediquip court held was not preempted
because it arose out of an obligation independent from the plan.
662 F.3d at 384–85. And like that claim, the Center’s claims—
at least on the face of the complaints—would merely result in
a one-time payment of damages based on the specific
agreement reached by the parties that does not impermissibly
interfere with plan administration. Cf. Iola, 700 F.3d at 85
(holding that assessing damages against insurers “for pre-plan
fraud does not affect the administration or calculation of
benefits” (citation omitted)). As a result, allowing these claims
does not impermissibly interfere with plan administration. Nor
does it preclude insurers like Aetna (or providers like the
Center) from minimizing the risk of unanticipated liability by
formalizing their agreements and thus identifying both the
particular services to be provided and the dollar amounts to be
paid (or particular fee schedule to be used) for those services.

    What is more, Aetna’s insistence that there will be
staggering downstream economic effects if these claims are
allowed to proceed is belied by experience. For the past thirty
years, since the Fifth Circuit’s seminal decision in Memorial
Hospital, our sister circuits have held that claims akin to the
Center’s are not expressly preempted, and, lo and behold, the
sky has not fallen. See, e.g., Access Mediquip, 662 F.3d at
384–86; In Home Health, 101 F.3d at 604–06; Meadows, 47
F.3d at 1009–11; Lordmann, 32 F.3d at 1533–34; see also
Franciscan Skemp, 538 F.3d at 601. In following suit today,
we foster the coherence and “uniform[ity]” in ERISA law that
the Supreme Court has encouraged. See Gobeille, 136 S. Ct.
at 944.


                               36
          c. Holding the claims preempted at this phase of
             the litigation would undercut ERISA’s
             purposes

    In evaluating claims’ “connection with” ERISA plans, the
Supreme Court has instructed that we must consider “the
objectives of the ERISA statute as a guide to the scope of the
state law that Congress understood would survive and the
nature of the effect of the state law on ERISA plans.” Gobeille,
136 S. Ct. at 943 (internal quotation marks and citation
omitted). Here, those considerations support the conclusion
that the Center’s claims, as pleaded, are not preempted.

    ERISA’s “principal object” was “to protect plan
participants and beneficiaries.” Id. at 946 (quoting Boggs v.
Boggs, 520 U.S. 833, 845 (1997)); see 29 U.S.C. § 1001(b)
(highlighting “the interests of participants in employee benefit
plans and their beneficiaries”). For those parties, who benefit
from both ERISA-created rights and ERISA’s civil
enforcement scheme, it makes good sense that a state law
remedy that “duplicates, supplements, or supplants” the
remedies set forth in section 502(a) runs afoul of “clear
congressional intent to make” those remedies exclusive,
triggering conflict preemption. Aetna Health Inc. v. Davila,
542 U.S. 200, 209 (2004). The resulting circumscription of
remedies available to participants and beneficiaries was part
and parcel of the bargain struck in establishing ERISA’s
substantive guarantees.

   But protection of plan participants and beneficiaries is not
advanced by extending express preemption to out-of-network
providers and limiting their universe of remedies to those


                              37
outlined in section 502(a). In cases such as D.W.’s, where a
plan contains an anti-assignment provision, express
preemption would leave the provider with only one option:
Sue the patient, hoping that the patient either is willing or able
to pay significant, unexpected costs or has the interest and
wherewithal to file suit against the insurer under section
502(a). 24    Neither circumstance, however, is likely to
compensate the provider for the harm it suffered in reliance on
the insurer’s promise of payment. The first will rarely come to
pass and even more rarely at the full amount to which the
provider and insurer agreed; the second would be limited in
any event to the benefits to which the patient was entitled under
the plan, not the full payment promised by the insurer. And the
prospect of suing patients to eventually recover from their
insurers is unpalatable, to say the least, from a reputational and
business development standpoint, not to mention the damage it
would cause to the doctor–patient relationship.

   Although Congress has narrowed the universe of remedies
available to participants and beneficiaries, we will not assume

   24
       At oral argument, Aetna suggested that insurers might
allow providers to seek an assignment of benefits
notwithstanding an anti-assignment provision in the plan. But
it cites no authority suggesting this practice is common, let
alone required; nor does it offer a sound reason for leaving the
payment of providers’ compensation to the whim of insurers.
Quite the contrary, as our sister circuits have recognized, and
as we explore in more detail below, providers will likely
respond to this uncertainty by either refusing to treat patients
or imposing barriers to care that will ultimately harm patients.
E.g., Mem’l Hosp., 904 F.2d at 247–48.


                               38
that it intended simultaneously to strip healthcare providers,
such as the Center, of any meaningful remedy, particularly
where the guidance from the Supreme Court, though limited,
indicates otherwise. See Mackey, 486 U.S. at 834 (1988)
(holding that ERISA does not preempt “state-law methods for
collecting money judgments . . . [because] otherwise, there
would be no way to enforce such a judgment won against an
ERISA plan”). 25

    Indeed, if anything, that would disserve ERISA’s statutory
objectives. To accept Aetna’s argument would be to accept the
troubling proposition that an out-of-network provider’s right to

   25
      See also Tr. of the AFTRA Health Fund v. Biondi, 303
F.3d 765, 782 (7th Cir. 2002) (Because ERISA “does not
provide any mechanism for plan administrators or fiduciaries
to recoup monies defrauded from employee benefit trust funds
by plan participants, garden-variety state-law tort claims must,
as a general matter, remain undisturbed . . . .”); Gerosa, 329
F.3d at 329–30 (concluding it is “implausible that Congress
intended” a result that “would leave [an] affected plan with no
means for making up its shortfalls”); Hospice of Metro Denver,
944 F.2d at 755 (reasoning that “if health care providers have
no recourse under ERISA or under state law, there will be
reluctance on the part of health care providers to extend care
without prepayment”); In Home Health, 101 F.3d at 606–07
(“If providers have no recourse under either ERISA or state
law . . . , [they] will be understandably reluctant to accept the
risk of non-payment, and may require up-front payment by
beneficiaries—or impose other inconveniences—before
treatment will be offered.” (quoting Mem’l Hosp., 904 F.2d at
247–48)).


                               39
recourse may be bargained away by insurers and plan
participants in the terms of an ERISA plan to which the
provider is not a party and which it likely has had no
opportunity to review before it provides care. It would in effect
allow insurers to illegitimately supplement their provider
network by making promises of payment to induce the
provision of services, safe in the knowledge that those out of
network would have no recourse for breach of those promises.
The consequence, as recognized by other Courts of Appeals,
would be for providers to begin to require up-front payments
from patients or to “deny care or raise fees to protect
themselves against the risk of noncoverage.” Lordmann, 32
F.3d at 1533; accord In Home Health, 101 F.3d at 606–07;
Mem’l Hosp., 904 F.2d at 247–48. That is a far cry from
“protect[ing] plan participants and beneficiaries.” Gobeille,
136 S. Ct. at 943 (citation omitted). “[T]he objectives of the
ERISA statute,” id., thus also indicate the Center’s claims do
not have an impermissible “connection with” the ERISA plans.

       D.     The Center’s Unjust Enrichment Claims

    We reach the opposite conclusion for the Center’s unjust
enrichment claims, which we hold do entail an impermissible
“reference to” the ERISA plans.

    To establish a claim of unjust enrichment under New Jersey
law, the Center must demonstrate that Aetna “received a
benefit and that retention of that benefit without payment
would be unjust.” Thieme v. Aucoine-Thieme, 151 A.3d 545,
557 (N.J. 2016) (citation omitted). The Center must also show
“that it expected remuneration from [Aetna] at the time it
performed or conferred [that] benefit on [Aetna] and that the
failure of remuneration enriched [Aetna] beyond its contractual


                               40
rights.” Id. (citation omitted). No unjust enrichment claim
may proceed absent a showing of a benefit—indeed, “the basis
of liability [for an unjust enrichment claim] springs from the
benefit conferred.” St. Paul Fire & Marine Ins. Co. v.
Indemnity Ins. Co. of N. Am., 158 A.2d 825, 827 (N.J. 1960)
(citation omitted); see Callano v. Oakwood Park Homes Corp.,
219 A.2d 332, 334 (N.J. Super. Ct. App. Div. 1966).

    Given those elements, whether a given unjust enrichment
claim is preempted may turn on the nature of the benefit: The
claim will be preempted if that benefit “is premised on . . . the
existence of a[n ERISA] plan,” Ingersoll-Rand, 498 U.S. at
140, or if “the existence of ERISA plans is essential to the
law’s operation,” Gobeille, 136 S. Ct. at 943 (quoting Cal. Div.
of Labor Standards Enf’t v. Dillingham Constr., N.A., 519 U.S.
316, 325 (1997)). Put differently, if “the court must find . . .
that an ERISA plan exists,” Ingersoll-Rand, 498 U.S. at 140,
to establish that element, such that “there simply is no cause of
action if there is no plan,” id., then “the court’s inquiry must
be directed to the plan,” and “this . . . cause of action ‘relate[s]
to’ an ERISA plan,” id. (second alteration in original) (citation
omitted).

   Here, the “benefit conferred” is indeed premised on the
existence of the plan. That is because in a case like the
Center’s, where a healthcare provider claims unjust enrichment
against an insurer, the benefit conferred, if any, 26 is not the

   26
     We note that district judges in New Jersey have disagreed
over whether a healthcare provider’s provision of services to
an insured may ever constitute a “benefit” to an insurer for
purposes of an unjust enrichment claim. Compare Plastic
Surgery Ctr., LLC v. Oxford Health Ins., Inc., No. 18-cv-2608,

                                41
provision of the healthcare services per se, but rather the
discharge of the obligation the insurer owes to its insured. As
New Jersey’s highest court observed long before the advent of
ERISA, the essence of an unjust enrichment cause of action
against an insurer is that “the [insurer] is under a legal duty to
provide the person injured with medical or surgical
attendance,” and “the physician . . . dutifully intervene[d] in
the [insurer’s] affairs and perform[ed] its obligation.”
Rabinowitz v. Mass. Bonding & Ins. Co., 197 A. 44, 47 (N.J.
1938) (citation omitted). And the Center’s own complaint—
describing the benefits at issue as “permitting Aetna to fulfill
its contractual obligation to D.W. to pay for medically


2019 WL 4750010, at *5–6 (D.N.J. Sept. 30, 2019)
(concluding that a healthcare provider may not bring an unjust
enrichment claim against an insurer because the “benefit is
derived solely by the insured party” (citation omitted)), with
Demaria v. Horizon Healthcare Servs., Inc., No. 2:11-cv-7298,
2013 WL 3938973, at *6 (D.N.J. July 31, 2013) (allowing an
unjust enrichment claim brought by a healthcare provider
against an insurer to proceed). Those that have held the benefit
lies solely with the insured have done so in reliance upon the
reasoning of Travelrs Indemnity Co. of Connecticut v. Losco
Group, Inc., 150 F. Supp. 2d 556 (S.D.N.Y. 2001), specifically
that “[i]t is counterintuitive to say that services provided to an
insured are also provided to its insurer,” id. at 563. Travelers
Indemnity, however, dealt with a claim of quantum meruit, not
a claim of unjust enrichment, id. at 562, and its reasoning is at
odds with the decisions of the New Jersey state courts that have
allowed these types of unjust enrichment claims to proceed.
See, e.g., Rabinowitz v. Mass. Bonding & Ins. Co., 197 A. 44,
46–47 (N.J. 1938).


                               42
necessary surgeries,” JA 61, and allowing Aetna to “fulfill[]
[its] contractual obligation to J.L.,” JA 204—makes plain that
this is its theory.

    What it fails to appreciate, however, is that in the modern
era, when the insured is a plan participant, the “contractual
obligation” is none other than the insurer’s duty to its insured
under the terms of the ERISA plan. That point was not lost on
the Fifth Circuit when it distinguished in Access Mediquip
between the provider’s state law misrepresentation claim—
which was based on a law that “d[id] not purport to regulate
what benefits [the insurer] provides to the beneficiaries of its
ERISA plans, but rather what representations it makes to third
parties about the extent to which it will pay for their services,”
662 F.3d at 385—and its unjust enrichment claim, for which
the provider could recover “only to the extent that the patients’
ERISA plans confer on their participants and beneficiaries a
right to coverage for the services provided,” 27 id. at 386. And


   27
       The Access Mediquip court reached the same conclusion
as to the provider’s claim of quantum meruit, 662 F.3d at 386–
87, although it is unclear how the analysis would bear out, at
least with respect to the “reference to” part of the express
preemption test, under New Jersey law which does not require
a showing of a benefit conferred to establish a quantum meruit
claim. See Starkey, Kelly, Blaney & White v. Estate of
Nicolaysen, 796 A.2d 238, 242–43 (N.J. 2002) (recovery under
a quantum meruit claim requires “(1) the performance of
services in good faith, (2) the acceptance of the services by the
person to whom they are rendered, (3) an expectation of
compensation therefor, and (4) the reasonable value of the
services.” (citation omitted)).


                               43
the Eighth, Ninth, Tenth, and Eleventh Circuits likewise have
recognized that a misrepresentation claim brought by a third-
party healthcare provider, given its legal basis independent of
the ERISA plan, is not necessarily preempted. See In Home
Health, 101 F.3d at 605–07; Meadows, 47 F.3d at 1009–11;
Hospice of Metro Denver, 944 F.2d at 755–56; Lordmann, 32
F.3d at 1533–34; cf. Iola, 700 F.3d at 84–85 (holding a
misrepresentation claim preempted based on statements that
occurred after the participants had entered into an ERISA plan
but allowing a misrepresentation claim based on statements
made before the participants had entered into the plan to
proceed).

    That distinction is no less important here. To put a fine
point on it, Aetna’s duties to J.L. and D.W. appear to arise
specifically from plan provisions stating that “[i]f Aetna refers
[the insured] to a Non-Network provider, the service or supply
shall be covered as a network service or supply,” JA 108
(D.W.’s plan); accord JA 248 (J.L.’s plan) (similar), and that
“Aetna is fully responsible for payment to the health care
professional and the [insured]’s liability shall be limited to any
applicable Network Copayment, Coinsurance or Deductible
for the service or supply,” JA 108; accord JA 248 (similar).
Thus, unlike the Center’s claims of breach of contract or
promissory estoppel, which seek to enforce a promise of
payment independent of any plan-based obligation, see supra
at pages 16–35, its unjust enrichment claims require “the court
[to] find . . . that an ERISA plan exists,” Ingersoll-Rand, 498
U.S. at 140, in order to demonstrate that Aetna “received a
benefit”—i.e., the discharge of its duties under that plan—“and
that retention of that benefit without payment would be
unjust,” Thieme, 151 A.3d at 557 (citation omitted). Likewise,
because the benefit involves a plan-based duty, “there simply


                               44
is no cause of action [for unjust enrichment] if there is no plan.”
Ingersoll-Rand, 498 U.S. at 140. This claim is thus squarely
preempted by section 514(a).

                        *       *       *

     ERISA is a “comprehensive and reticulated statute,” Mass.
Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 146 (1985) (citation
omitted), but its complexity does not relieve us of our duty to
carefully assess the parameters of the claims before us to
determine whether they “relate to” ERISA plans. Although
section 514(a) is robust, Menkes, 762 F.3d at 293, it is not all
encompassing, Gobeille, 136 S. Ct. at 943. Because the Center
plausibly alleged breach of contract and promissory estoppel
claims that do not contain an impermissible “reference to” or
“connection with” ERISA plans, the District Court erred in
dismissing those claims as preempted at this stage of the
litigation, 28 even as it properly dismissed the unjust enrichment
claims as preempted.

   28
       Because the District Court denied the Center’s motion to
file a second amended complaint in D.W.’s case based on an
erroneous application of express preemption that ruling too
must give way. We review a denial of a motion to amend for
abuse of discretion, Menkes, 762 F.3d at 290, except where, as
here, “amendment is denied for legal reasons drawing de novo
review,” Mullin v. Balicki, 875 F.3d 140, 150 (3d Cir. 2017)
(emphasis omitted). Aetna argues that we should affirm the
District Court’s denial of the motion to amend, at least as to the
Center’s breach of contract claim, because the Center failed to
state a claim. In support of this argument, it points to a line
from the District Court’s opinion stating that the Center “does
not properly allege the elements of an enforceable contract.”

                                45
                     III.   CONCLUSION

    For the foregoing reasons, we will affirm in part and reverse
in part and remand to the District Court for further proceedings
consistent with this opinion.




JA 25. But it appears the District Court was assessing only the
precertification letter. Under New Jersey law, “absent a statute
to the contrary, an oral offer and acceptance constitutes a
binding agreement,” Williams v. Vito, 838 A.2d 556, 560 (N.J.
Super. Ct. Law. Div. 2003); cf. N.J. Stat. Ann. 25:1-5
(identifying the limited circumstances that trigger New
Jersey’s statute of frauds), and Aetna’s payment of a good
portion of both J.L.’s and D.W.’s surgeries indicates that it,
too, recognized the existence of some agreement with the
Center.


                               46
