                                                      FILED
                                           United States Court of Appeals
                                                   Tenth Circuit
             UNITED STATES COURT OF APPEALS
                                                  July 31, 2017
                      TENTH CIRCUIT
                                              Elisabeth A. Shumaker
                                                  Clerk of Court

CHAD ABERCROMBIE; TRENT
ARTICHOKER; TROY BARRON;
FREDERICK BLESCH; REBECCA
BRINKMAN; MARC CAHN; DAVE
CARLSON; SCOTT CATHEY; GUY
COBERLY; GREG CRAWFORD; JOEL                      No. 16-1152
DEKANICH; MATTHEW DERRY; MATT         D.C. No. 1:15-CV-00994-CMA-MEH
DICKSON; DONALD DRESSEN; RANDY                     (D. Colo.)
ELDRIDGE; LISA ERIKSON; TYLER
FOWLER; THOMAS GEHRMANN; GINA
GENTILINI; JAMES GRAHAM; ROBERT
GRAHAM; KEITH GRAVES; BRAD
GULLA; JAY HAFNER; GREG HAITZ;
RICHARD HANLEY; DAVID HANSEN;
SHELLEY HOOVER-SHEARD; DAVID
JENSEN; DEAN E. JOHNSON; MICHAEL
JOHNSON; DOUG JONES; JERRILEA
KARNEY; SONJA KENYON; RANDY
KNOCHE; RYAN KNOCHE; CANDICE
KOCH; AARON KOEPP; SHANE
KOKOSZKA; JASON MARKIJOHN;
WILLIAM KOONTZ; LARRY MORRIES;
KATHY KOOP; ROBERT NELSON;
DANIEL LONQUIST; DAN PATERSON;
MIKE MADDEN; THOMAS PATTERSON;
JIM PHELPS; ART PHELPS; PHILLIP
POLLOCK; BRIAN POLVI; CHAD
POWELL; DAVID POWELL; DENESA
POZNER; RYAN PROBASCO; PATRICK
RAY; AMY REEVES; MCKENZIE
REIFSCHNEIDER; TIM RINN; JEREMY
RODGERS; SCOTT ROSENQUIST;
RONALD SALVAGGIONE; JOHN F.
SCHULTZ; JULIE SCOTT; TERRY SMITH;
RANDY SNYDER; KEN SPRESSER;
 MICHAEL SPRINGFIELD; THERON
 STALLINGS; WES STATLEY; JAMES
 THATCHER;WILLIAM R. THOMAS;
 CALEB WHITE; MONTY WILBURN;
 MARK WOLFF; GREG WOLGIN; ERIC
 YOUNG; KEVIN YOUNG; ROBERT ARNE,

               Plaintiffs - Appellants,
          v.
 AETNA HEALTH, INC., a Pennsylvania
 corporation; ANTHEM BLUE CROSS &
 BLUE SHIELD, a Colorado corporation;
 CIGNA HEALTHCARE OF COLORADO,
 INC., a Colorado corporation; HUMANA
 INSURANCE COMPANY, a Colorado
 corporation; HUMANA HEALTH PLAN,
 INC., a Colorado corporation; HUMANA
 MARKETPOINT, INC., a Colorado
 corporation; UNITED HEALTHCARE OF
 COLORADO, INC., a Colorado corporation;
 HEALTH VALUE MANAGEMENT INC., a
 Colorado corporation, d/b/a ChoiceCare
 Network,

               Defendants - Appellees.


                            ORDER AND JUDGMENT *


Before KELLY, MURPHY, and BACHARACH, Circuit Judges.



      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.


                                          -2-
I.    Introduction

      Appellants (“Providers”) are a group of approximately eighty chiropractors

who are licensed to practice in the state of Colorado. Appellees (“Carriers”) are

health insurers licensed to market, sell, and provide healthcare insurance in

Colorado. Providers’ federal complaint alleged Carriers have reimbursed

chiropractors substantially less than other healthcare providers who are

performing substantially similar services, in violation of Colorado law. The

statutory provision at issue, Colo. Rev. Stat. § 10-16-104(7)(a)(I)(A) (the

“Statute”), was enacted in 1973 as part of the Colorado Health Care Coverage Act

(the “Act”). See Colo. Rev. Stat. § 10-16-101. It was repealed effective May 13,

2013. See Ch. 217, §§ 28, 70, 2013 Colo. Sess. Laws. At the time it was

repealed, the Statute provided as follows:

      Notwithstanding any provisions of any policy of sickness and
      accident insurance issued by an entity subject to the provisions of
      part 2 of this article . . . , whenever any such policy . . . provides for
      reimbursement for a service that may be lawfully performed by a
      person licensed in this state . . . a carrier shall not deny
      reimbursement under the policy . . . when the service is rendered by a
      person so licensed. Nothing in this part 1 or part 2 or 5 of this article
      precludes a carrier from setting different fee schedules in an
      insurance policy for different services performed by different
      professions, but the carrier shall use the same fee schedule for those
      portions of health services that are substantially identical although
      performed by different professions.

Colo. Rev. Stat. § 10-16-104(7)(a)(I)(A) (repealed May 12, 3013). In their

complaint, Providers asserted the Statute required all Colorado health insurance


                                         -3-
carriers to reimburse all healthcare providers at the same rate, regardless of their

license and/or training, if they performed substantially identical services.

Carriers filed a motion to dismiss the complaint pursuant to Rule 12(b)(6),

arguing Providers failed to state a claim for relief plausible on its face because

the Statute applied only to reimbursement of policyholders for covered benefits

owed under health insurance policies.

II.   Discussion

      The district court granted Carriers’ motion and dismissed Providers’

complaint. In the court’s comprehensive order, it set out the correct legal

standards 1 and then addressed each argument made by the parties. The district

court first examined the plain language of the Statute, noting it repeatedly

referenced insurance policies, not contracts between providers and carriers. The

court also considered Providers’ argument that the Statute unambiguously applied

to reimbursements owed to healthcare providers because it was titled,

“Reimbursement of Providers.” See Martinez v. Cont’l Enters., 730 P.2d 308,

313 (Colo. 1986) (holding the title of a statute may be used when construing the

statute but it “is not dispositive of legislative intent”). The court noted the


      1
        Our jurisdiction arises under 28 U.S.C. § 1291. “The legal sufficiency of a
complaint is a question of law, and a Rule 12(b)(6) dismissal is reviewed de
novo.” Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009). Like the
district court, we accept as true all well-pleaded factual allegations in Providers’
complaint and view those allegations in the light most favorable to Providers.
Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir. 2006).

                                          -4-
original title of the Statute was “Form and Content of Policy.” When the title

changed in 1992, the change was labeled as “nonsubstantive” by the Colorado

legislature. The district court next looked to the Act as a whole, noting Providers

failed to explain why the Colorado legislature would place a singular provision

intended to benefit healthcare providers in an Act that otherwise only governed

healthcare coverage for individual policyholders.

      Based on its analysis of the parties’ arguments, the district court concluded

Providers’ proposed interpretation of the statute was inconsistent with the

Statute’s plain language and the structure of the Act as a whole. The district

court also examined the legislative history of the Statute and a letter written by a

policy analyst at the Colorado Division of Insurance, concluding neither provided

any meaningful support for Providers’ assertion that § 10-16-104(7)(a)(I)(A)

governed reimbursement rates applicable to healthcare providers.

      Upon de novo review of the claims raised by Providers and the grounds

upon which those claims rest, we affirm the dismissal of Providers’ complaint for

substantially the reasons stated by the district court in its Order dated March 31,

2016, 2 with the following additional comments.




      2
       Because we affirm the district court’s dismissal of Providers’ complaint on
this basis, it is unnecessary for us to address Carriers’ alternative argument that
no private right of action exists under the Act.

                                         -5-
      During oral argument in this matter, this court questioned counsel for

Carriers as to whether a 1987 amendment to the Act provided support for

Providers’ position. At the time the Statute was repealed, that 1987 amendment

was codified in subsection (B) of § 10-16-104(7)(a)(I) and stated:

      The licensed persons who may not be denied reimbursement pursuant
      to sub-subparagraph (A) of this subparagraph (I) shall include
      registered professional nurses, licensed clinical social workers, and
      licensed addiction counselors. However, such inclusion shall not be
      interpreted as enlarging the scope of professional nursing, licensed
      clinical social worker, or licensed addiction counseling practice.

Counsel for Carriers responded that Providers have never relied on this

amendment to support their argument. The record confirms this assertion. We

have carefully reviewed Providers’ response to the motion to dismiss, their

opening appellant brief, and their reply brief. They have never referenced the

1987 amendment and it did not form the basis of any argument Providers

presented to this court or to the district court.

      The main argument made by Providers was that the Statute, at the time it

was enacted in 1973, clearly and unambiguously applied to reimbursements made

to a provider by a carrier. Alternatively, Providers argued the 1973 legislative

history of House Bill 1107 (Colo. 1973) confirmed that the Statute requires

insurers to reimburse providers equally for substantially identical services. The

district court fully considered these arguments and concluded the Statute, as it

existed in 1973, could not be read as Providers argued and, thus, their complaint


                                           -6-
failed to state a claim for relief plausible on its face. As we have concluded, we

find no reversible error in the district court’s ruling.

      Providers argue the district court erred by not permitting them to amend

their complaint 3 “in order to fully address the issues and supplement the record,”

but they do not specifically identify the 1987 amendment as an issue requiring

further development. Although the parties stated generally during oral argument

that changes in billing and reimbursement practices occurred in the healthcare

field after 1973, neither provided any record support for this proposition and

Providers have never identified billing practices as an area that required further

factual development. Further, while it may be accurate that carriers did not




      3
        Providers’ purported motion to amend consists of this single sentence in a
footnote in the brief they filed in opposition to Carriers’ motion to dismiss: “In
the event the [district] Court finds the elements of any of Plaintiffs’ claims
insufficient on their face, Plaintiffs request leave to amend the Amended
Complaint as agreed by Defendants and ordered by this Court in its June 8, 2015,
Minute Order. ” The district court’s minute order, however, simply states: “If
[Providers] file an amended complaint and it is dismissed, [Carriers] agree that if
[Providers] seek leave to file a further amended complaint, [Carriers] will not
oppose that filing unless a further amended complaint would be futile.” Because
Providers’ request did not “give adequate notice to the District Court and the
opposing party of the basis of the proposed amendment,” the district court did not
abuse its discretion in denying it. Calderon v. Kan. Dep’t of Soc. & Rehab.
Servs., 181 F.3d 1180, 1186 (10th Cir. 1999). On appeal, Providers have again
failed to identify the basis of any amendment other than to indicate their desire to
supplement the record with additional facts. Not only was this argument not
made to the district court, the only additional fact specifically identified by
Providers—a letter from the Colorado Division of Insurance —was considered by
the district court.

                                           -7-
reimburse providers directly in 1973 and only began to do so some time later, 4

that fact does not support Providers’ argument that the Statute applied to

healthcare providers when it was enacted in 1973. Providers have never taken the

position the 1987 amendment represented a significant expansion of the Statute,

in light of changed billing practices, such that the Statute’s provisions thereafter

applied to both policyholders and providers. Because this court does not engage

in speculation or craft arguments for an appellant, we do not consider this

possibility.

      Because the argument has not been made to this court, we express no

opinion on whether the 1987 amendment provides any support for the conclusion

the Statute, as so amended, applies to providers. 5 We rule only that, on the facts

alleged and the claims actually presented, Providers have not stated a claim for




      4
        Even if true, the record does not explain why Providers could not continue
billing their patients directly, thereby requiring the patients to then seek
reimbursement from their carrier. This process was the one unambiguously
contemplated by the 1973 version of the Statute.
      5
        The dissent relies on but a single case to support its position that this court
must consider the 1987 amendment even though Providers have never relied upon
it. In that case, United States v. Vallery, 437 F.3d 626, 632-33 (7th Cir. 2006), an
out-of-circuit criminal case, the Seventh Circuit felt obligated to consider an
approach not addressed by either side, i.e., consideration of the pertinent criminal
statute as a whole to determine whether a misdemeanor or felony had been
charged. That case, then, is not authority in this civil matter where we are
concerned only with whether the Providers’ complaint sufficiently states plausible
claims for relief.

                                          -8-
relief plausible on its face and have failed to show that amendment of their

complaint would not be futile.

III. Conclusion

      The judgment of the district court dismissing Providers’ complaint is

affirmed.

                                          ENTERED FOR THE COURT

                                          Michael R. Murphy
                                          Circuit Judge




                                        -9-
Abercrombie et al. v. Aetna Health, Inc. et al., No. 16-1152,
BACHARACH, J., dissenting.

     This appeal pits a group of chiropractors against a group of health

insurance companies. The two groups disagree over the meaning of a prior

Colorado statute dealing with reimbursement for health care:

     (7) Reimbursement of providers. (a) Sickness and accident
     insurance. (I)(A) Notwithstanding any provisions of any policy
     of sickness and accident insurance issued by an entity subject
     to the provisions of part 2 of this article or a prepaid dental
     care plan subject to the provisions of part 5 of this article,
     whenever any such policy or plan provides for reimbursement
     for a service that may be lawfully performed by a person
     licensed in this state for the practice of osteopathy, medicine,
     dentistry, dental hygiene, optometry, psychology, chiropractic,
     podiatry, or acupuncture, a carrier shall not deny
     reimbursement under the policy or plan when the service is
     rendered by a person so licensed. Nothing in this part 1 or part
     2 or 5 of this article precludes a carrier from setting different
     fee schedules in an insurance policy for different services
     performed by different professions, but the carrier shall use the
     same fee schedule for those portions of health services that are
     substantially identical although performed by different
     professions.

     (B) The licensed persons who may not be denied reimbursement
     pursuant to sub-subparagraph (A) of this subparagraph (I) shall
     include registered professional nurses, licensed clinical social
     workers, and licensed addiction counselors. . . .

Colo. Rev. Stat. § 10-16-104(7)(a)(I)(A)-(B) (2012) (repealed 2013). The

chiropractors contend that this statute required reimbursement of providers

at the same rates enjoyed by other types of providers for the same services.

The health insurance companies maintain that the statute required the equal

reimbursement of insureds, not providers. The district court agreed with
the health insurance companies, dismissing the chiropractors’ complaint

based on the view that the statute protected insureds rather than providers.

But in my view, the statute included protection for providers such as

chiropractors. As a result, I would reverse the district court’s order of

dismissal. 1

      In this appeal, we must engage in de novo review of the dismissal

and the underlying question of statutory interpretation. See Colby v.

Herrick, 849 F.3d 1273, 1279 (10th Cir. 2017); United States v. Porter,

745 F.3d 1035, 1040 (10th Cir. 2014).

      For our purposes, the statute contains two relevant parts,

Subsections (A) and (B). Subsection (A) consists of two sentences. The

first sentence provides that health insurance companies cannot “deny

reimbursement under the policy or plan” for covered services. Colo. Rev.

Stat. § 10-16-104(7)(a)(I)(A) (2012) (repealed 2013). But this sentence

does not say who is entitled to reimbursement. Is it the insured, the

provider, or both? The second sentence provides that health insurance

companies must use the same fee schedule when reimbursing for

substantially identical services even though those services may be provided

by professionals in different fields. In this situation, the reimbursement

1
      Because I would reverse on this ground, I have not discussed the
chiropractors’ other appeal points.

                                      2
must be the same regardless of whether the same service is provided by a

licensed medical doctor or a chiropractor. We must decide whether this

sentence protects the specified types of providers.

      By itself Subsection (A) is ambiguous, and the majority grapples

with that ambiguity without reference to Subsection (B). That approach is

reasonable because the chiropractors rely on the text of Subsection (A)

without referring to Subsection (B). In light of the chiropractors’ exclusive

focus on Subsection (A), the majority relies on our reticence to “craft

arguments for an appellant.” Maj. Order and Judgment at 7. But I think we

must consider the entirety of the statute, including Subsection (B).

      When interpreting the statute as a whole, I am not crafting an

argument for anyone. After all, both sides urge us to interpret the Colorado

statute by reading it as a whole, just as Colorado law requires. See

Appellants’ Opening Br. at 17; Appellees’ Ans. Br. at 11; Reno v. Marks,

349 P.3d 248, 253 (Colo. 2015) (en banc). Following this approach here

requires us to consider Subsection (B) even though it was apparently

overlooked by the parties. See United States v. Vallery, 437 F.3d 626, 632-

33 (7th Cir. 2006) (considering parts of a statute not relied upon by either




                                       3
side because of the court’s obligation to take into account the meaning of

the statute as a whole). 2

      Subsection (B) makes it clear that reimbursement cannot be denied to

the “licensed persons” identified in Subsection (A): “The licensed persons

who may not be denied reimbursement pursuant to sub-subparagraph (A) of

this subparagraph (I) shall include registered professional nurses, licensed

clinical social workers, and licensed addiction counselors.” Colo. Rev.

Stat. § 10-16-104(7)(a)(I)(B) (2012) (emphasis added) (repealed 2013).

This sentence clarifies that Subsection (A) creates an entitlement to

reimbursement for specified types of providers. With the gloss of

Subsection (B), the meaning of Subsection (A) is unambiguous. The two

sentences in Subsection (A) mean that specified providers (including

licensed chiropractors) are entitled to the same reimbursement rates

enjoyed by other types of providers for substantially identical services.
2
      In Vallery, the Seventh Circuit Court of Appeals interpreted a
criminal statute to determine whether the defendant had been charged with,
and convicted of, a felony rather than a misdemeanor. See Vallery, 437
F.3d at 628, 633-34. For this interpretation, the Seventh Circuit considered
parts of the statute that neither party had relied upon. See id. at 628, 630-
33.

      Vallery is not binding, for it was issued by another circuit court. But
Vallery is persuasive. There the choice for the court was the same choice
that we face here: whether to interpret a statute based on language that has
been overlooked by both sides. The Seventh Circuit decided to consider the
overlooked language. See id. Here too we should consider the overlooked
language in light of Colorado law.

                                      4
                                        * * *

      Reading the statute as a whole, as Colorado law requires, I would

consider Subsection (B)’s express recognition that the statute prohibits the

denial of reimbursement to licensed providers. With this express

recognition, the statute unambiguously entitles licensed chiropractors to

the same rates enjoyed by other types of providers for the same services. In

light of this unambiguous statutory entitlement, the district court erred in

dismissing the complaint. Because the majority reaches a different

conclusion, I respectfully dissent. 3




3
      The health insurance companies also rely on legislative history,
placement within the statutory framework, and the absence of a private
right of action. But the legislative history and placement within the
statutory framework are not helpful in light of the clarity of the statute
when read as a whole and in context. See Associated Gov’ts of Nw. Colo. v.
Colo. Pub. Utils. Comm’n, 275 P.3d 646, 649 (Colo. 2012) (en banc)
(indicating that legislative history and placement within the statutory
framework are considered “[i]f the statutory language is ambiguous”). “If
the language is clear and the intent appears with reasonable certainty, there
is no need to resort to other rules of statutory construction.” People v.
Dist. Court, 713 P.2d 918, 921 (Colo. 1986) (en banc). And the district
court declined to reach the health insurance companies’ argument
regarding the absence of a private right of action. Thus, I would remand
for the district court to decide this issue in the first instance. See Rife v.
Okla. Dep’t of Pub. Safety, 854 F.3d 637, 649 (10th Cir. 2017).

                                         5
