                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 18a0451n.06

                                          No. 17-1932

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

 SAGINAW CHIPPEWA INDIAN TRIBE OF                       )
                                                                                  FILED
                                                                            Aug 30, 2018
 MICHIGAN; WELFARE BENEFIT PLAN,                        )
                                                        )               DEBORAH S. HUNT, Clerk
        Plaintiffs-Appellants,                          )
                                                        )      ON APPEAL FROM THE
 v.                                                     )      UNITED STATES DISTRICT
                                                        )      COURT FOR THE EASTERN
 BLUE CROSS BLUE SHIELD OF MICHIGAN,                    )      DISTRICT OF MICHIGAN
                                                        )
        Defendant-Appellee.                             )




BEFORE:       BOGGS, BATCHELDER, and THAPAR, Circuit Judges.

       BOGGS, Circuit Judge. This case is one of many brought in recent years against Blue

Cross Blue Shield of Michigan (“BCBSM”) contending that BCBSM breached its fiduciary duties

under the Employee Retirement Income Security Act of 1974 (“ERISA”) by charging its self-

insured customers hidden administrative fees. In Hi-Lex Controls, Inc. v. Blue Cross Blue Shield

of Michigan, 751 F.3d 740 (6th Cir. 2014), we affirmed the district court’s ruling after a bench

trial that BCBSM violated its fiduciary obligations under ERISA by marking up Hi-Lex’s hospital

claims with hidden administrative surcharges. Id. at 742.

       In the instant case, the Saginaw Chippewa Indian Tribe of Michigan (“the Tribe”) alleged

that BCBSM similarly inflated the Tribe’s medical bills with undisclosed administrative fees. Had

that been all that the Tribe alleged, this would be a relatively simple case. But the Tribe also

contended that BCBSM breached its fiduciary duties under ERISA by failing to take advantage of
No. 17-1932, Saginaw Chippewa Indian Tribe of Mich. v. Blue Cross Blue Shield of Mich.


federal regulations that permit Indian Tribes to pay reduced rates for services provided by

Medicare-participating hospitals. The Tribe further claimed that BCBSM charged it hidden fees

as part of the company’s Physician Group Incentive Program (“PGIP)—a program and fees that

were not at issue in Hi-Lex. Complicating matters more is that the Tribe maintained two self-

insured policies with BCBSM—one for tribal members and another for tribal employees.

           Although the Tribe prevailed in part on its hidden-fees claim below, it appeals several

adverse rulings by the district court. The district court ruled that ERISA did not apply to the policy

that covered only tribal members. The court also concluded that BCBSM did not breach any

fiduciary duties owed to the Tribe under ERISA through its operation of PGIP or by its failure to

pay less for services provided by Medicare-participating hospitals. The Tribe appeals each of these

rulings as well as the district court’s supposed failure to award the Tribe prejudgment interest on

the hidden-fees claim on which it was successful below.

           For the reasons set forth below, we affirm the district court’s judgment in part and reverse

in part.

                                                    I

                                     FACTUAL BACKGROUND

                              The Tribe’s Two Group Policies with BCBSM

           The Tribe is a federally recognized Indian Tribe that owns and operates a casino and several

other commercial enterprises and employs both tribal members and individuals who are not

members of the Tribe. The Tribe maintains two separate health-insurance group policies through

BCBSM. When the Tribe first purchased health-insurance coverage for its employees from

BCBSM in the 1990s, the policy was fully insured, meaning that the Tribe paid a premium to

BCBSM for coverage, and BCBSM was responsible for paying participants’ medical claims.



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No. 17-1932, Saginaw Chippewa Indian Tribe of Mich. v. Blue Cross Blue Shield of Mich.


       In 2002, the Tribe began offering health-insurance coverage to tribal members. The Tribe

also purchased this coverage through BCBSM, but this policy (“Member Policy”), unlike the fully

insured policy for the Tribe’s employees (“Employee Policy”), was self-funded. Under this

arrangement, the Tribe paid the cost of healthcare benefits for covered individuals out of its own

pocket and paid BCBSM a fee for administering the policy. The Tribe and BCBSM entered into

an Administrative Services Contract (“ASC”) for the Member Policy. Two years later, the Tribe

executed a second ASC with BCBSM to transition the Employee Policy from being fully insured

to self-funded.

       From 2004 through all times relevant to this case, the Tribe offered self-funded health-

insurance coverage to tribal employees and tribal members through these two policies with

BCBSM. The two policies had distinct eligibility requirements and offered coverage to different

groups of people. The Member Policy was available only to tribal members—spouses and

dependents who were not themselves tribal members could not participate in that policy. The

Employee Policy, by contrast, covered tribal employees as well as spouses and dependents of

employees, regardless of their tribal membership status. Although many tribal employees received

coverage through the Member Policy, they made up only a small percentage of participants in that

group policy: for all relevant years, more than 90% of Member Policy participants were not tribal

employees. The Tribe also funded the two policies from different sources. The Member Policy

was originally funded by the Tribe’s Government Trust, which pays for governmental programs

and benefits that the Tribe provides to tribal members. It currently is funded by the Tribe’s Gaming

Trust. The Employee Policy, by contrast, is funded by the Tribe’s Fringe Trust, which pays for

benefits provided to the employees of the Tribe.




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No. 17-1932, Saginaw Chippewa Indian Tribe of Mich. v. Blue Cross Blue Shield of Mich.


                            The Physician Group Incentive Program

       As a large-scale purchaser of healthcare services, BCBSM creates networks of approved

medical providers with whom it negotiates compensation arrangements. Each year, BCBSM

reviews the fees that in-network physicians receive and issues an update to the fee schedule that

governs the financial arrangements that it has with the providers in its network. Prior to 2005, the

fee update applied to all physicians equally, regardless of the health outcomes that they achieved.

That changed in 2005 when BCBSM created PGIP, which required physicians to meet specified

goals related to quality and efficiency, such as increasing the use of generic medications and

reducing unnecessary procedures, to be awarded a portion of the fee update.

       Under PGIP, physicians in the BCBSM network agreed to allocate a fixed percentage of

the updated compensation amount to be paid to them to a pooled fund, the money in which is then

re-distributed to physicians based on their individual success in meeting these performance

objectives. When PGIP began in 2005, physicians contributed .5% of the payment they were

entitled to under the updated fee schedule to the fund. That amount has increased over the years

and is now 5%.

                                       Medicare-Like Rates

       In July 2007, the Department of Health and Human Services implemented federal

regulations that govern the payment amounts that Medicare-participating hospitals are permitted

to accept for services provided to members of an Indian Tribe that carries out a Contract Health

Service program on behalf of the Indian Health Service. See 42 C.F.R. § 136.30. The regulations

provide that such a hospital must accept payment at a Medicare-like rate (“MLR”), that is, at a rate

that is no more than what would be paid under Medicare for the same service. Id.




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No. 17-1932, Saginaw Chippewa Indian Tribe of Mich. v. Blue Cross Blue Shield of Mich.


                                  PROCEDURAL HISTORY

       The Tribe filed this action in January 2016, alleging violations of ERISA and Michigan

law. The Tribe requested prejudgment interest as part of its damages. BCBSM moved to dismiss

the state-law claims as preempted by ERISA. The Tribe agreed that ERISA preempted its state-

law claims, and the district court dismissed those claims. BCBSM also moved to dismiss the

Tribe’s claim related to BCBSM’s alleged failure to pay Medicare-Like Rates. The district court

granted BCBSM’s motion, holding that BCBSM did not owe the Tribe a fiduciary duty under

ERISA to ensure payment of MLRs.

       BCBSM and the Tribe proceeded to discovery on the Tribe’s remaining ERISA claims

about PGIP, the Member Policy, and the Employee Policy, and the parties later filed cross-motions

for partial summary judgment. The Tribe sought to prove that the Employee Policy and the

Member Policy jointly constituted a single ERISA plan. The district court disagreed, holding that

the Tribe had two distinct healthcare plans and that ERISA governed only the Employee Policy.

The court also held that BCBSM’s operation of PGIP did not violate ERISA. The court therefore

dismissed the Tribe’s claims to the extent that they related to PGIP or payment of hidden fees for

the Member Policy.

       BCBSM did not contest the Tribe’s claim concerning the payment of hidden fees for the

Employee Policy, however, and the district court granted summary judgment to the Tribe on that

claim, awarding it roughly $8.4 million. The Tribe did not ask for prejudgment interest in its

motion for partial summary judgment, and the district court did not award the Tribe interest as part

of its damages. The Tribe now appeals.




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No. 17-1932, Saginaw Chippewa Indian Tribe of Mich. v. Blue Cross Blue Shield of Mich.


                                                 II

                 THE MEMBER POLICY AND THE EMPLOYEE POLICY

       On appeal, the Tribe first asserts that the district court erred in concluding that the

Employee Policy and Member Policy are separate health-insurance plans, rather than two benefit

options offered to employees under a single ERISA plan. The Tribe next contends that the court

erred in ruling that ERISA does not cover the Member Policy.

                                       Standard of Review

       We review the district court’s grant of summary judgment de novo. Richmond v. Huq, 885

F.3d 928, 937 (6th Cir. 2018). Summary judgment is proper if “there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

                                             Analysis

                                    One Plan or Two Plans?

       The Tribe first contends that the Employee Policy and Member Policy constitute a single

ERISA plan. The Tribe bears the burden of establishing that the policies collectively form such a

plan. See Daft v. Advest, Inc., 658 F.3d 583, 590–91 (6th Cir. 2011) (holding that the existence of

an ERISA plan is an element of a plaintiff’s claim). The Tribe’s primary argument that it meets

this burden contains two main premises: (1) that its Employee Policy is an ERISA plan and (2) that

it is presumed that all benefits offered by an employer are part of one ERISA plan. The Tribe’s

argument falters at the second step because the presumption that the Tribe identifies is not

applicable to this case.

       In Loren v. Blue Cross & Blue Shield of Michigan, 505 F.3d 598 (6th Cir. 2007), we

considered whether the various coverage options offered by an employer constituted one ERISA

plan with multiple benefit options or several ERISA distinct plans. Id. at 604. In determining this



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No. 17-1932, Saginaw Chippewa Indian Tribe of Mich. v. Blue Cross Blue Shield of Mich.


issue, we acknowledged the “default rule that all medical benefits offered by an employer are

generally considered to be part of one ERISA health plan.” Id. at 605. Under this default rule, a

plaintiff is entitled to the “presumption that the employee health benefits offered by an employer

constitute a single ERISA plan.” Id. at 606.

         Despite the Tribe’s arguments to the contrary, this default rule and the presumption that it

entails do not apply to this case. They apply only when an employer offers the benefits at issue to

its employees in its capacity as an employer, or, in other words, as part of the employment

relationship in which it stands with its employees. See id. at 604–06. Although the Loren court

did not make this condition explicit, it had no need to do so because it was clear that it was met in

that case and that the benefits offered all fell under ERISA. See id. at 604 (“[T]here is no doubt

about whether there is an ERISA plan. The question is how many.”). The same cannot be said

here since the Tribe provided coverage under the Member Policy only to tribal members. Although

numerous tribal employees received coverage through this plan, they did so solely because of their

status as members, rather than as employees, of the Tribe. The Tribe has brought forth no evidence

to suggest that they received these benefits because of their employment relationship with the

Tribe.

         The Tribe also argues that administrative regulations support its claim that it had a single

ERISA plan. See 26 C.F.R. § 54.4980B-2.A-6(a); Notice of Proposed Rulemaking for Health

Coverage Portability, 69 Fed. Reg. 78800-01 (proposed Dec. 30, 2004) (to be codified at C.F.R.

pt. 2590). These regulations are no help to the Tribe, however, because they establish a default

rule and presumption similar to Loren’s: when an employer provides health care benefits to its

employees, it is presumed that the various benefits offered constitute a single ERISA plan. But the




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No. 17-1932, Saginaw Chippewa Indian Tribe of Mich. v. Blue Cross Blue Shield of Mich.


Tribe was not acting in this capacity when it offered tribal members, some of whom also happened

to employees, benefits under the Member Policy.

        Accordingly, the Tribe must carry its burden of establishing that it has a single ERISA plan

without the benefit of any presumption that the Member Policy and Employee Policy jointly

constitute one plan. It cannot do so. Whether the two policies form one plan or two separate plans

is determined by the Tribe’s intent in creating the policies. See Loren, 505 F.3d at 605; Boos v.

AT&T, Inc., 643 F.3d 127, 132 (5th Cir. 2011) (“Whether a benefit plan is a single plan or multiple

plans is determined by employer intent.”). We have not identified a controlling test to use when

determining an employer’s intent, but Loren suggested that at least three factors may be relevant:

“(1) whether each plan had a different ERISA identification number; (2) whether the language of

the plan documents indicated that the employer intended to establish multiple plans; and

(3) whether the plans shared the same administrator or trust.” 505 F.3d at 605 (citing Chiles v.

Ceridian Corp., 95 F.3d 1505, 1511 (10th Cir. 1996)). Although the third factor favors the Tribe

because BCBSM administered both policies, the first two factors do not because the Tribe never

filed any formal ERISA plan documents, such as a Form 5500,1 and therefore neither policy had

an ERISA identification number or any plan documents that contained language indicating

whether the Tribe intended to create more than one plan. We do not mean to suggest that an

employer must comply with ERISA’s formal requirements, such as filing plan documents, to

establish one or more ERISA plans. That is certainly not the case. See Int’l Res., Inc. v. N.Y. Life

Ins. Co., 950 F.2d 294, 297 (6th Cir. 1991). But since the first two Loren factors presuppose such

compliance, it would be quite odd if an employer could draw support from them when it failed to

observe the relevant formalities.


1
  “A Form 5500 is an annual disclosure document, which most large employers that offer employee benefits plans are
required to submit as part of ERISA’s overall reporting and disclosure framework.” Loren, 505 F.3d at 606 n.2.

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No. 17-1932, Saginaw Chippewa Indian Tribe of Mich. v. Blue Cross Blue Shield of Mich.


        Considering the policies as a whole, we are not convinced that the Tribe had any intention

of creating a single plan for its employees. It does not appear that the Tribe intended to offer

coverage under the Member Policy as one of two benefits options for employees, since the only

employees who received coverage under that policy did so because of their status as members of

the Tribe, not because they worked for the Tribe. That the two policies are funded from different

sources, with the money for the Employee Policy coming from a trust that pays for employee

benefits and the funding for the Member Policy initially originating in a trust that provides benefits

to tribal members, also supports our conclusion that the policies were not intended to be two types

of benefits offered to employees under a single plan. See Boos, 643 F.3d at 132. In short, the

Tribe appears to have intended to create two plans—one for members and another for employees.2

        Our conclusion that the two policies represent two plans rather than a single plan does not

rest on any improper “unbundling” of the Tribe’s benefits plans, as the Tribe insists. See Postma

v. Paul Revere Life Ins. Co., 223 F.3d 533, 538 (7th Cir. 2000). The cases that the Tribe cites for

this principle are inapposite, since they all concern one of two situations, neither of which is present

here. One set of cases stands for the proposition that when deciding whether ERISA applies to an

employer’s benefits programs, courts should not carve out pieces of those programs and consider

them apart from one another; they should be considered as a collective. See Gross v. Sun Life

Assurance Co. of Can., 734 F.3d 1, 7–8 (1st Cir. 2013); Postma, 223 F.3d at 538; Peterson v. Am.

Life & Health Ins. Co., 48 F.3d 404, 407–08 (9th Cir. 1995). The other line of cases makes clear

that a single plan may be created even when that plan covers two or more classes of employees

who are subject to distinct eligibility requirements or when it contains different benefits structures


2
 This last observation explains why our decision, contrary to the Tribe’s contention, does not undermine ERISA’s
goal of ensuring that a single benefit plan will not be subject to overlapping, non-uniform regulatory regimes. See
Helfman v. GE Grp. Life Assurance Co., 573 F.3d 383, 390 (6th Cir. 2009). That policy concern is not implicated
here because the Tribe has created two plans, only one of which, as we explain below, is an ERISA plan.

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No. 17-1932, Saginaw Chippewa Indian Tribe of Mich. v. Blue Cross Blue Shield of Mich.


for employees. See Boos, 643 F.3d at 131–33; Steiner v. Fortis Benefits Ins. Co., No. 97-0265,

2000 U.S. Dist. LEXIS 9366, at *3 (E.D. La. June 30, 2000). These two sets of cases appear to

reflect the same general principle that the Loren court recognized and that we have found to be

inapplicable here: “all medical benefits offered by an employer are generally considered to be part

of one ERISA health plan.” 505 F.3d at 605. But the cases are distinguishable even despite that

observation, since the Member Policy and Employee Policy do not merely cover two different

groups of employees. Nor is participation in the policies conditioned on different eligibility criteria

for employees; rather, an individual’s eligibility for coverage under the Member Policy turns on

factors that are entirely independent of any employment relationship that she may have with the

Tribe.

                              Is the Member Policy an ERISA plan?

         The Tribe next argues that ERISA governs the Member Policy even if that policy is

considered a separate plan.

         This court uses a three-part test for determining whether a plan is covered by ERISA.

         First, the court must apply the so-called “safe harbor” regulations established by
         the Department of Labor to determine whether the program was exempt from
         ERISA. Second, the court must look to see if there was a “plan” by inquiring
         whether “from the surrounding circumstances a reasonable person could ascertain
         the intended benefits, the class of beneficiaries, the source of financing, and
         procedures for receiving benefits.” Finally, the court must ask whether the
         employer “established or maintained” the plan with the intent of providing benefits
         to its employees.

Thompson v. Am. Home Assurance Co., 95 F.3d 429, 434–35 (6th Cir. 1996) (alteration and

internal citations omitted). The Employee Policy, as both parties agree, passes the test for being

an ERISA plan, but the Member Policy does not.

         The stumbling block for the Tribe is that it did not establish or maintain the Member Policy

with the intent of providing benefits to its employees. As we have already noted, the employment

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No. 17-1932, Saginaw Chippewa Indian Tribe of Mich. v. Blue Cross Blue Shield of Mich.


status of the individuals who received coverage under this policy was irrelevant, since coverage

depended entirely on whether an individual was a member of the Tribe. The policy therefore

appears to have been created to provide a benefit to the Tribe’s members, not to its employees.

         The Tribe’s argument that ERISA applies to the Member Policy rests on two claims:

(1) the Member Policy included some participants who were employees of the Tribe and (2) the

policy’s non-employee participants are the types of individuals whose participation in the plan

does not place it outside of ERISA. The Tribe’s argument is faulty because it ignores the threshold

requirement that ERISA covers a plan only when an employer established or maintained it to

provide benefits to at least some of its employees.3 See Thompson, 95 F.3d at 438. An employer

can meet this requirement only when it offers the benefits to the employees as part of the

employment relationship. See Anderson v. UNUM Provident Corp., 369 F.3d 1257, 1263–64 (11th

Cir. 2004). That was not the case here since the employees’ participation in the Member Policy

was unrelated to their employment status with the Tribe.

                                          MEDICARE-LIKE RATES

         The Tribe next argues that the district court erred in dismissing its claim relating to

Medicare-Like Rates for failure to state a claim. We agree.

                                                Standard of Review

         We examine de novo a district court’s grant of a motion to dismiss for failure to state a

claim. Doe v. Miami Univ., 882 F.3d 579, 588 (6th Cir. 2018). “To survive a motion to dismiss,

a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that

is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.


3
  The authorities that the Tribe cites for support are inapposite because this threshold condition is satisfied in each of
them. See 29 C.F.R. § 2510.3-3(b); Santino v. Provident Life & Accident Ins. Co., 276 F.3d 772, 775 (6th Cir. 2001);
Peterson, 48 F.3d at 407–08; Madonia v. Blue Cross & Blue Shield of Va., 11 F.3d 444, 447–48 (4th Cir. 1993);
Williams v. Wright, 927 F.2d 1540, 1545 (11th Cir. 1991).

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No. 17-1932, Saginaw Chippewa Indian Tribe of Mich. v. Blue Cross Blue Shield of Mich.


Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Id. “In reviewing a complaint, we construe it ‘in the light most

favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor

of the plaintiff.’” Mills v. Barnard, 869 F.3d 473, 479 (6th Cir. 2017) (quoting Directv, Inc. v.

Treesh, 487 F.3d 471, 476 (6th Cir. 2007)).

                                              Analysis

       The Tribe’s appeal requires us to consider the scope of a plan administrator’s fiduciary

duties under ERISA. Under ERISA,

       a person is a fiduciary with respect to a 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, . . . or (iii) he has any discretionary authority or discretionary
       responsibility in the administration of such plan.

29 U.S.C. § 1002(21)(A). ERISA requires three duties of fiduciaries:

       (1) the duty of loyalty, which requires “all decisions regarding an ERISA plan . . .
       be made with an eye single to the interests of the participants and beneficiaries”;
       (2) the “prudent person fiduciary obligation,” which requires a plan fiduciary to act
       with the “care, skill, prudence, and diligence of a prudent person acting under
       similar circumstances,” and (3) the exclusive benefit rule, which requires a
       fiduciary to “act for the exclusive purpose of providing benefits to plan
       participants.”

Pipefitters Local 636 Ins. Fund v. Blue Cross & Blue Shield of Mich., 722 F.3d 861, 867 (6th Cir.

2013) (omission in original) (quoting James v. Pirelli Armstrong Tire Corp., 305 F.3d 439, 448–

49 (6th Cir. 2002)).

       The Tribe bases its MLR claim on 42 C.F.R. § 136.30, which requires Medicare-

participating hospitals to accept payment for services at a rate that is no more than what those

services would cost under Medicare, provided that the services are authorized by a Tribe that is



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No. 17-1932, Saginaw Chippewa Indian Tribe of Mich. v. Blue Cross Blue Shield of Mich.


carrying out a Contract Health Service (“CHS”) program on behalf of the Indian Health Service

(“IHS”). Id. at § 136.30(a), (b). The Tribe alleges that although BCBSM was aware of these

regulations, BCBSM always directed the Tribe to pay standard contract rates for health services,

even when these services were eligible for a Medicare-like rate. Since the standard rate for these

services typically is higher than what would be paid under Medicare, the Tribe contends that it has

stated a claim that BCBSM squandered plan assets,4 and thereby breached its duties under ERISA

to act prudently and with the best interests of the Tribe in mind when administering the plan.

         We agree. Failing to preserve plan assets can be actionable under ERISA. See DeLuca v.

Blue Cross Blue Shield of Mich., 628 F.3d 743, 747–48 (6th Cir. 2010); Little River Band of Ottawa

Indians v. Blue Cross Blue Shield of Mich., 183 F. Supp. 3d 835, 844 (E.D. Mich. 2016). That is

just what the Tribe has alleged. The Tribe asserts that BCBSM failed to preserve plan assets by

consistently causing the Tribe to overpay on claims that were eligible for a lower, Medicare-Like

Rate.

         In holding that the Tribe failed to state a claim, the district court concluded that BCBSM

had no fiduciary duty under ERISA to ensure payment of MLRs for eligible claims. An ERISA

plan administrator’s fiduciary duty does not extend, the court held, to comply with obligations

extrinsic to the text of ERISA and the plan. The MLR regulation was just such an extrinsic

obligation.

         The cases that the district court relied on to support its conclusion that ERISA does not

impose duties beyond those enumerated in the text of ERISA and the plan are inapposite. These

cases concerned whether a violation of § 401(a) of the Internal Revenue Code (“IRC”) provided a

cause of action under ERISA. See Clark v. Feder Semo & Bard, P.C., 739 F.3d 28 (D.C. Cir.


4
  Since we have held that only the Employee Policy is an ERISA plan, it is the assets of this policy that are at issue in
this and the following section.

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No. 17-1932, Saginaw Chippewa Indian Tribe of Mich. v. Blue Cross Blue Shield of Mich.


2014); Stamper v. Total Petroleum, Inc. Ret. Plan, 188 F.3d 1233 (10th Cir. 1999); Reklau v.

Merchs. Nat’l Corp., 808 F.2d 628 (7th Cir. 1986).5 The most analogous of these cases is Clark,

in which the plaintiff contended that § 401(a)(4) of the IRC applied to ERISA through 29 U.S.C.

§ 1344(b)(5) and therefore that the defendant’s violation of § 401(a)(4) amounted to a breach of

its fiduciary duties under ERISA.6 739 F.3d at 29–30. The D.C. Circuit held that neither Section

401(a)(4) nor 29 U.S.C. § 1344(b)(5) could be “the source of a duty [under ERISA] for a plan

fiduciary.” Id. at 30. But unlike the plaintiff in Clark, the Tribe does not assert that the MLR

regulations impose an additional duty on fiduciaries beyond what ERISA itself requires. Instead,

the Tribe bases its claim on the text of ERISA itself, which requires fiduciaries to act prudently

and solely in the interest of the plan’s participants and beneficiaries. See 29 U.S.C. § 1104(a)(1).

The Tribe alleges that BCBSM violated these duties by paying more than necessary for the Tribe’s

medical claims by failing to take advantage of the MLR regulations. That is enough to state a

claim under ERISA.

         BCBSM presents an alternative reason for affirming the district court’s dismissal, arguing

that its administration of the Tribe’s plan simply is not subject to the MLR regulations. These

regulations, BCBSM contends, apply only to the expenditure of IHS funds and do not limit the

payment that hospitals must accept from a third-party payor, such as BCBSM, which is not

expending IHS funds. Although BCBSM asserts that the Tribe’s MLR claim therefore fails as a

matter of law, BCBSM’s argument is better understood as contending that the Tribe cannot show,


5
 On appeal, BCBSM draws our attention to Bell v. Pfizer, Inc., 626 F.3d 66 (2d Cir. 2010), asserting that it provides
further support for the district court’s conclusion that BCBSM had no fiduciary duty under ERISA to secure payment
of MLRs. Bell is inapplicable. The Second Circuit described Bell’s suit as an attempt “to extend the ERISA fiduciary
duty to unintentional misstatements regarding collateral, non-ERISA plan consequences of a retirement decision.” Id.
at 77. That is not this case.
6
  29 U.S.C. § 1344 is “a provision of ERISA that sets forth general rules governing the allocation of the assets of a
retirement plan upon termination.” Clark, 739 F.3d at 30. Section 1344(b)(5) “authorizes the Secretary of the
Treasury to step in and override an application of those general rules that would violate § 401(a)(4)” of the IRC. Ibid.

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No. 17-1932, Saginaw Chippewa Indian Tribe of Mich. v. Blue Cross Blue Shield of Mich.


as a factual matter, that the regulations apply to its ERISA plan. But since the Tribe has alleged

that the BCBSM was aware of the MLR regulations, that BCBSM failed to ensure that the Tribe

paid no more than MLR for MLR-eligible services, and that all other conditions precedent to the

MLR claim were met, the Tribe has sufficiently pleaded that the MLR regulations are applicable

to BCBSM’s administration of the Tribe’s ERISA plan. We emphasize that we express no opinion

on the ultimate merits of the Tribe’s MLR claim, and we hold only that it would be premature to

dismiss the Tribe’s claim at this stage of the proceedings.

                    THE PHYSICIAN GROUP INCENTIVE PROGRAM

       The Tribe next appeals the district court’s grant of summary judgment to BCBSM on the

issue of whether BCBSM violated its fiduciary duties under ERISA through its operation of PGIP.

The parties dispute whether BCBSM was acting as a fiduciary in operating PGIP, which is a

threshold question “[i]n every case charging breach of ERISA fiduciary duty.” Pegram v.

Herdrich, 530 U.S. 211, 226 (2000). We need not decide this question, however, because even

assuming arguendo that BCBSM was a fiduciary, no rational trier of fact could find that BCBSM

violated its fiduciary duties through PGIP. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 587 (1986).

       The Tribe contends that BCBSM violated the general duties that ERISA imposes on

fiduciaries, see 29 U.S.C. § 1104(a)(1), as well as ERISA’s prohibition against self-dealing,

29 U.S.C. § 1106(b)(1). The Tribe posits that BCBSM’s operation of PGIP is all but identical to

its actions in Hi-Lex and Pipefitters, both of which concerned BCBSM’s collection of marked-up

fees from self-insured customers. See Hi-Lex, 751 F.3d at 742 (breach of fiduciary duty for

inflating hospital claims with hidden administrative fees); Pipefitters, 722 F.3d at 868 (breach of

fiduciary duty for unilaterally setting and collecting fee from customer to meet financial obligation



                                                -15-
No. 17-1932, Saginaw Chippewa Indian Tribe of Mich. v. Blue Cross Blue Shield of Mich.


BCBSM owed to State). In the instant case, the Tribe contends that BCBSM unilaterally and

secretly marked up the Tribe’s professional claims to cover the expenses of operating PGIP.

       The record does not support the Tribe’s claim. BCBSM developed PGIP to create financial

incentives for physicians to improve patient care, which in turn would result in reduced healthcare

costs for customers. Prior to the creation of PGIP in 2005, BCBSM paid all in-network physicians

the amount to which they were entitled for the services that they provided to a plan participant.

That was the end of the transaction. With the advent of PGIP, however, participating physicians

agreed to permit BCBSM to deduct a small percentage of their payment and to have BCBSM place

that money in a fund that consisted of deductions taken from similarly situated physicians. The

money in this fund was then re-distributed to physicians who achieved certain performance

objectives set by BCBSM, such as reducing the use of unnecessary procedures.

       The Tribe’s claim depends on its assertion that BCBSM charged it an additional fee to

cover the costs of operating PGIP. To support its position, the Tribe first cites a statement that

BCBSM made in a BCBSM-produced pamphlet called “The Record” that it sent to providers in

June 2004. “Beginning July 1, 2004, physicians will receive an average 2 percent increase in the

BCBSM maximum payment for most procedures. Also, an additional 0.5 percent increase in

payments will be used to fund the Physician Group Incentive Payment Program that will be

effective Jan. 1, 2005.” Although the Tribe makes much of BCBSM’s apparent admission that

PGIP would be funded through an additional fee, it neglects to mention that the very next sentence

of the pamphlet informs providers that “[d]etails will be communicated in a future issue of The

Record.”

       Those details were clarified in an internal memo prepared by BCBSM in early January

2005. This memo, which noted that a letter with information about PGIP would be mailed that



                                               -16-
No. 17-1932, Saginaw Chippewa Indian Tribe of Mich. v. Blue Cross Blue Shield of Mich.


week to self-insured customers such as the Tribe, explained that 0.5% of the 2004 fee update would

be used to finance PGIP.7 BCBSM also explained that it would direct the stated amount into a

fund, and that physicians would be paid the incentive from this fund. BCBSM gave an example

of how PGIP would work in practice:

             •    Services rendered – Approved amount with fee update is $100
                                     – Approved amount with the added incentive is $100.50
             •    Provider will be paid $100
             •    50 cents will be put in the incentive pool
             •    Member copay and EOB [Explanation of Benefits] will only show the $100

The Tribe insists that the memo “made clear that the 0.5 percent increase was an additional fee.”

         Not so. First, the memo announced that the amount allocated to PGIP would come from

the annual fee update, rather than get added on to it. Indeed, the memo noted “that the additional

0.5 percent of the physician fee update is assessed regardless of whether or not the customers’

members are treated by a physician” who participated in PGIP. Second, the memo explained why

the co-pay and EOB would not reflect the full amount that customers would pay. BCBSM’s

claims-processing system was not then sophisticated enough to automatically deduct and set aside

the applicable amount in the PGIP incentive pool. Because of the limitations of BCBSM’s claims-

processing system in 2005, the letter explained—and deposition testimony made clear—that self-

insured customers’ bills that year would be reduced by an amount equivalent to the 0.5% that

should have been deducted from physicians’ payments and set aside in the pooled fund. To make

up for this reduction, customers would pay the aggregate amount to be allotted to PGIP in a single

lump sum payment at the end of 2005 by having the money deducted from their annual refund

check. The Tribe does not dispute that its refund check for 2005 clearly indicated how much

BCBSM deducted from it to offset the reduced rate that the Tribe had paid for healthcare that year


7
  Although the record is unclear whether any such letter was sent to customers, the Tribe has not argued that it never
received this letter.

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No. 17-1932, Saginaw Chippewa Indian Tribe of Mich. v. Blue Cross Blue Shield of Mich.


as a result of the changes that BCBSM had made because of PGIP. The memo thus does not

support the Tribe’s assertion that it paid an additional fee because of PGIP in 2005.

       Next, the Tribe claims that a 2007 internal email sent by a BCBSM underwriter shows that

self-insured customers paid an extra fee because of PGIP.

       PGIP is an amount for physician incentive added into the amount due on the claim
       and as such should be charged to the group. These monies are pooled and are
       ultimately paid out only to those providers who participate in the program and meet
       certain requirements. Thus the PGIP amount on an individual claim would not be
       included in the amount paid to the provider (just like ASC access fee [i.e., the
       problematic fee in Hi-Lex] on the Local side is not part of the amount paid to the
       provider, but it is still the group’s liability).

The underwriter has submitted a declaration explaining that she did not work directly on PGIP and

had no personal knowledge about how the program operated. In any event, the email is not

inconsistent with BCBSM’s statements about how PGIP functioned.

       Finally, the Tribe argues that since BCBSM acknowledged that it discussed PGIP at the

same time that it considered how much to increase the annual fee update, the Tribe must have paid

more because of PGIP. But the fact that BCBSM discussed PGIP and the fee update in tandem is

unsurprising because BCBSM always has maintained that the PGIP pool is carved out of the fee

update. Moreover, the Tribe’s suggestion that it must have paid more because of PGIP since

BCBSM talked about PGIP and the fee update at the same time is the type of speculative assertion

that we have found to be insufficient to survive a motion for summary judgment. See Clemente v.

Vaslo, 679 F.3d 482, 495 (6th Cir. 2012).

       In sum, the Tribe has not established that there is a genuine issue of material fact

concerning whether BCBSM marked up the Tribe’s professional claims with an additional fee

because of PGIP. The record indicates that the only “mark up” that the Tribe was subjected to was




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No. 17-1932, Saginaw Chippewa Indian Tribe of Mich. v. Blue Cross Blue Shield of Mich.


the result of the annual fee update,8 and that the Tribe would have paid the same amount each year

regardless of whether part of the fee update was earmarked to fund PGIP. Since the Tribe did not

pay anything extra because of PGIP, summary judgment was appropriate.

                                      PREJUDGMENT INTEREST

         Last, the Tribe argues that the district court erred in failing to award prejudgment interest

as a component of its damages on its hidden-fees claim in connection with the Employee Policy.

BCBSM asserts that the Tribe has forfeited any claim to prejudgment interest. We agree.

                                              Standard of Review

         An award of prejudgment interest may be granted in the discretion of the district court in

an ERISA action. Rochow v. Life Ins. Co. of N. Am., 780 F.3d 364, 375–76 (6th Cir. 2015) (en

banc). Accordingly, we review a district court’s failure to award prejudgment interest for abuse

of discretion. Howe v. City of Akron, 801 F.3d 718, 750 (6th Cir. 2015).

                                                     Analysis

         Although the Tribe sought prejudgment interest in its amended complaint and engaged in

significant motions practice on the subject, it declined to request such interest in its motion for

partial summary judgment, indicating that it would ask for interest at a later point in time. Not

surprisingly, the district court’s ruling on the parties’ motions for summary judgment made no

mention of prejudgment interest. After the district court’s decision, and without ever filing a

postjudgment motion concerning prejudgment interest, the Tribe lodged this appeal, contending

that the district court erred in failing to award it prejudgment interest.

         “[I]t is well settled law that this court will not consider an error or issue which could have

been raised below but was not.” Barner v. Pilkington N. Am., Inc., 399 F.3d 745, 749 (6th Cir.


8
 We note that the Tribe has not argued that the increased charges that result from the yearly fee update constitute a
breach of fiduciary duty.

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No. 17-1932, Saginaw Chippewa Indian Tribe of Mich. v. Blue Cross Blue Shield of Mich.


2005) (quoting Niecko v. Emro Mktg. Co., 973 F.2d 1296, 1299 (6th Cir. 1992)). Because the

Tribe never gave the district court the opportunity to decide whether to award it prejudgment

interest, it has failed to preserve that issue for appeal.

        The Tribe’s arguments to the contrary are unavailing. The Tribe contends that although it

made clear in its motion for partial summary judgment that it later would request prejudgment

interest, the district court issued a final judgment before the Tribe had the opportunity to do so.

Because the district court knew that prejudgment interest remained a live issue and prematurely

entered judgment without considering it, the Tribe suggests that it could preserve its claim for

interest simply by filing an appeal with this court.

        The Tribe claims that Howe and Rochow support its position, but that is incorrect. The

litigation in Howe had endured for several years, resulting in two trials and several appeals.

801 F.3d at 724. At the close of the first trial, the defendant moved for a new trial while the

plaintiffs requested various forms of additional relief, including prejudgment interest, in a motion

pursuant to Federal Rule of Civil Procedure 59(e) to alter or amend the judgment. Id. at 727–28.

The district court granted a new trial on the issue of damages, but it declined to rule on the

plaintiffs’ Rule 59(e) motion, informing the parties that it would take up plaintiffs’ requests for

additional relief at the second trial. Id. at 729, 751. When that trial came and went without a ruling

on prejudgment interest, the plaintiffs, rather than filing yet another Rule 59(e) motion, appealed

the district court’s failure to include prejudgment interest in its damages award. Id. at 750–51.

We held that the plaintiffs had preserved their claim for interest because they had “consistently

pursued prejudgment interest in the district court, and the district court led [them] to believe it

would consider their request for prejudgment interest at the conclusion of the retrial, but did not

do so.” Ibid.



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No. 17-1932, Saginaw Chippewa Indian Tribe of Mich. v. Blue Cross Blue Shield of Mich.


        In Rochow, we likewise concluded that the plaintiff had preserved his claim for

prejudgment interest. There, the plaintiff requested prejudgment interest in his complaint and the

parties fully briefed the issue prior to judgment, but the district court entered judgment without

considering the plaintiff’s entitlement to interest. 780 F.3d at 368–69, 376.

        Hence, in Howe and Rochow, we had no trouble deciding that the plaintiffs preserved their

claims for prejudgment interest for appeal because in both cases the parties had presented the

question to the district court and the court simply had failed to rule on the matter. That is not what

happened here. Although the Tribe asked for prejudgment interest in its complaint and filed

numerous motions on the matter prior to summary judgment, the Tribe did not request interest in

its motion for partial summary judgment or in any other dispositive motion. Consequently, the

Tribe did not present the issue of its entitlement to prejudgment interest to the district court in a

posture in which the court could decide whether the Tribe should receive such interest. The Tribe

therefore has failed to preserve that issue. See Schwab v. Huntington Nat’l Bank, 516 F. App’x

545, 548 n.3 (6th Cir. 2013) (“[I]n order to preserve an issue for appellate review, generally it must

be raised sufficiently for the trial court to rule on it.”).

                                                    III

        For the foregoing reasons, we REVERSE and REMAND the district court’s dismissal of

the Tribe’s MLR claim and AFFIRM the district court’s judgment in all other respects.




                                                   -21-
