Case 2:21-cv-01926-GGG-DPC Document 1 Filed 10/21/21 Page 1 of 14
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF LOUISIANA
`
`BRIDGEPOINT HEALTHCARE
`LOUISIANA, LLC d/b/a BRIDGEPOINT
`CONTINUING CARE HOSPITAL, LLC
`
`Plaintiff
`
`vs.
`
`CASE NO.:
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`JUDGE:
`
`BLUE CROSS BLUE SHIELD NORTH
`DAKOTA
`
`MAGISTRATE JUDGE:
`
`Defendant
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`COMPLAINT
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`NOW COMES BridgePoint Healthcare Louisiana, LLC d/b/a BridgePoint Continuing Care
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`Hospital Louisiana (“BridgePoint” or “Plaintiff”), by and through its undersigned counsel, and for
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`its Complaint hereby states as follows:
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`Jurisdiction and Venue
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`1.
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`Jurisdiction of the Court is based upon the Employee Retirement Income
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`Security Act of 1974 (“ERISA”) and, in particular, 29 U.S.C. §§ 1132(e)(1) and 1132(f). These
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`provisions give the district courts jurisdiction to hear civil actions brought to recover benefits due
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`under the terms of an Employee Welfare Benefit Plan that, in this case, consists of group healthcare
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`benefits available under such plan (hereinafter referred to as the “Plan”) that is provided by Blue
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`Cross Blue Shield of North Dakota (“BCBS ND” or “Defendant”) to employees such as the insured
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`(the “Insured”).
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`2.
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`This action may be brought before this Court pursuant to 28 U.S.C. § 1331, which
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`gives the district courts jurisdiction over actions that arise under the laws of the United States.
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`{N1903141 - 2}
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`
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF LOUISIANA
`
`BRIDGEPOINT HEALTHCARE
`LOUISIANA, LLC d/b/a BRIDGEPOINT
`CONTINUING CARE HOSPITAL, LLC
`
`Plaintiff
`
`vs.
`
`CASE NO.:
`
`JUDGE:
`
`BLUE CROSS BLUE SHIELD NORTH
`DAKOTA
`
`MAGISTRATE JUDGE:
`
`Defendant
`
`COMPLAINT
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`NOW COMES BridgePoint Healthcare Louisiana, LLC d/b/a BridgePoint Continuing Care
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`Hospital Louisiana (“BridgePoint” or “Plaintiff”), by and through its undersigned counsel, and for
`
`its Complaint hereby states as follows:
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`Jurisdiction and Venue
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`1.
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`Jurisdiction of the Court is based upon the Employee Retirement Income
`
`Security Act of 1974 (“ERISA”) and, in particular, 29 U.S.C. §§ 1132(e)(1) and 1132(f). These
`
`provisions give the district courts jurisdiction to hear civil actions brought to recover benefits due
`
`under the terms of an Employee Welfare Benefit Plan that, in this case, consists of group healthcare
`
`benefits available under such plan (hereinafter referred to as the “Plan”) that is provided by Blue
`
`Cross Blue Shield of North Dakota (“BCBS ND” or “Defendant”) to employees such as the insured
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`(the “Insured”).
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`2.
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`This action may be brought before this Court pursuant to 28 U.S.C. § 1331, which
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`gives the district courts jurisdiction over actions that arise under the laws of the United States.
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`{N1903141 - 2}
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`
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`Case 2:21-cv-01926-GGG-DPC Document 1 Filed 10/21/21 Page 2 of 14
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`3.
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`The ERISA statute, 29 U.S.C. § 1133, provides a mechanism for administrative or
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`internal appeal of benefit denials. Plaintiff has exhausted those avenues of appeal. Defendant,
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`BCBS of ND, has failed to give Plaintiff the full and fair hearing to which it is entitled and has
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`failed to respond to its multiple attempts to resolve this matter.
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`Nature of Action
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`4.
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`This is a claim seeking an award to Plaintiff of healthcare benefits pursuant to an
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`Employee Welfare Benefit Plan providing group healthcare benefits to Insured. This action,
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`seeking recovery of benefits, is brought pursuant to ERISA § 502(a)(1)(B) [29 U.S.C.
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`§ 1132(a)(1)(B)].
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`The Parties
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`5.
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`Plaintiff is a foreign Limited Liability Corporation with its registered office in
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`Louisiana located at 9800 Airline Highway, Suite 105, Baton rouge, Louisiana which operates a
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`long term acute care facility (“LTAC”) located in Jefferson Parish, Louisiana.
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`6.
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`Plaintiff provided medical treatment for the Insured between the dates of January
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`9, 2020 through June 10, 2020.
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`7.
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`Plaintiff is an assignee of the Insured of benefits of the Plan by virtue of an
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`assignment of insurance benefits (the “Assignment”) provided for in the Patient Agreement
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`between Plaintiff and Insured dated January 9, 2021 and executed in Jefferson Parish, Louisiana.
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`8.
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`Insured was eligible as a qualified employee when Insured’s medical condition
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`required treatment at Plaintiff’s LTAC.
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`9.
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`At all times relevant hereto, the Plan constituted an “Employee Welfare Benefit
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`Plan” as defined by 29 U.S.C. § 1002(1) and while employed, Insured had coverage under the Plan
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`{N1903141 - 2}
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`2
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`as an employee because Insured was a participant as defined by 29 U.S.C. § 1002(7). This claim
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`relates to benefits assigned by the Insured to Plaintiff under the foregoing Plan.
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`10.
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`ERISA requires that an Employee Benefit Plan be established and maintained
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`pursuant to a written instrument, 29 U.S.C. § 1102(a)(1).
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`11.
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`The Plan is a certificate of insurance under which the Insured was a participant at
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`the time of the healthcare claim.
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`12.
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`BCBS ND is a foreign corporation domiciled in North Dakota, doing business in
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`Louisiana and is the claims administrator, the underwriter, and the Plan administrator of the Plan.
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`Jurisdiction over BCBS ND in this District is being asserted pursuant to 29 U.S.C. § 1132 (e)(2).
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`13.
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`BCBS ND qualifies as an “affiliate” under that certain Member Provider
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`Agreement (“MPA”) between Blue Cross Blue Shield of Louisiana (“BCBS LA”) and BridgePoint
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`and is therefore bound by the terms of the MPA.
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`14.
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`Venue is proper in the Eastern District of Louisiana because the claim originated in
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`Jefferson Parish, Louisiana, the Insured resided in the District at all material times, and all
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`treatment took place in this District. Further, the Assignment and MPA were executed in this
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`District, the oral and written communications which establish a contract between BCBS ND and
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`BridgePoint were directed to this District and all of the relevant events referenced herein occurred
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`in the Eastern District of Louisiana.
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`Statement of Facts
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`15.
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`Insured (Beneficiary ID Number 129941972001) was a full-time employee and was
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`actively engaged in employment until on or about December 26, 2019, when Insured required
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`emergency medical treatment at West Jefferson General Hospital.
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`{N1903141 - 2}
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`3
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`16.
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`On January 9, 2020, Insured was transferred from West Jefferson General Hospital
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`to BridgePoint’s LTAC for long term care at which time BridgePoint obtained the from the
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`Insured.
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`17.
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`Highmark Health Care Services (“Highmark”) acted as an agent for BCBS ND in
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`regard to claims processing matters.
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`18.
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`On February 1, 2020, Plaintiff was granted pre-approval for treatment of Insured at
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`its LTAC from BCBS ND through its agent, Highmark, authorizing treatment from January 9,
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`2020 through February 6, 2020.
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`19.
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`The Insured was treated continuously at the LTAC from January 9, 2020 through
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`June 10, 2020. Treatment beyond the pre-approved date of February 6, 2020 was necessitated by
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`the fact that the Insured had developed an infection which was first detected on January 28, 2020
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`(prior to the end of the already pre-approved treatment interval). The Insured required continued
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`treatment at the LTAC until June 10, 2020 and BridgePoint provided patient care to the Insured
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`through that date.
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`20.
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`On March 27, 2020, BCBS ND issued an Approval Notice letter, approving the
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`payment of care for the Insured from January 9, 2021 through January 22, 2021.
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`21.
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`Also on March 27, 2020, BCBS ND issued a Denial of Benefits letter denying
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`payment for care of the Insured from January 22, 2020 through March 27, 2020 (i.e. the date of
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`the Denial of Benefits letter) stating that the “LTAC stay is denied as not meeting criteria for
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`medical necessity.” The Denial of Benefits letter asserted that
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`[T]here was no supporting documentation of vent settings that will provide
`information on: reduction in ventilator support or FiO2 or increase length
`of spontaneous breathing
`trial. There were also no supporting
`documentation of PT/OT and SLP that is required for medical necessity
`review.
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`{N1903141 - 2}
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`22.
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`On April 13, 2020, Plaintiff sent an Appeal letter to BCBS ND reminding BCBS
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`ND that treatment from January 9, 2020 through February 6, 2020 had been pre-approved and that
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`continued care at Plaintiff’s LTAC beyond that date was necessitated by the Insured having
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`developed an infection during Insured’s stay. Along with the Appeal letter, Plaintiff provided the
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`Insured’s medical records related to Insured’s treatment.
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`23.
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`24.
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`BCBS ND denied Plaintiff’s Appeal on May 13, 2020.
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`On March 18, 2021, outside counsel for Plaintiff sent a follow-up demand for
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`payment for treatment from January 9, 2020 through the date of discharge of the Insured on June
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`10, 2020.
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`25.
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`On May 7, 2021, BCBS ND issued a response stating that the majority of Plaintiff’s
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`reimbursement request was being denied because BCBS ND determined “these services were not
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`medically necessary and appropriate.” BCBS ND did not provide a specific basis for its claim that
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`the medical services provided by Plaintiff were not medically necessary and did not indicate what
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`additional support Plaintiff could submit in order to establish medical necessity beyond the medical
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`records already submitted.
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`26.
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`In its May 7, 2021, letter, BCBS ND did indicate that Plaintiff’s claims for services
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`rendered between January 9, 2020 and January 22, 2020 were qualified for payment but stated that
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`BCBS ND “needed additional information to be submitted in order to process” the claim.
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`However, BCBS ND did not indicate what additional support Plaintiff should submit in order to
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`obtain payment of the charges that BCBS ND itself admitted qualified for reimbursement.
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`27.
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`The applicable claim regulations under ERISA require that a Plan denial give
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`notification to the Plan beneficiary under 29 C.F.R. § 2560.503-1(g)(1)(i-iv), setting forth: “(i)
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`the specific reason or reasons for the adverse determination; (ii) reference to the specific Plan
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`{N1903141 - 2}
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`5
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`Case 2:21-cv-01926-GGG-DPC Document 1 Filed 10/21/21 Page 6 of 14
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`provisions on which the determination is based; (iii) a description of any additional material or
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`information necessary for the claimant to perfect the claim and an explanation of why such material
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`or information is necessary; and (iv) a description of the Plan’s review procedures and the time
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`limits applicable to such procedures, including a statement of the claimant’s right to bring a civil
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`action under section 502(a) of the Act following an adverse benefit determination on review.”
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`28.
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`On June 8, 2021, counsel for Plaintiff sent a response to BCBS ND’s May 7, 2021
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`letter, requesting:
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`• BCBS ND set forth what additional information it required in order to
`process Plaintiff’s claim for services rendered from January 9, 2020
`through January 22, 2020 that BCBS ND had already indicated was
`qualified for payment;
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`• An explanation of any post-service process Plaintiff could avail itself of in
`order to exhaust all administrative service requirements.
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`29.
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`BCBS ND did not respond to Plaintiff’s June 8, 2021 letter request for information
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`regarding the: (1) further information allegedly needed by BCBS ND to process Plaintiff’s claim
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`for services from January 9, 2020 through January 22, 2020; and (2) the administrative appeals
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`process available for the Denial of Benefits for services from January 23, 2020 through June 10,
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`2020.
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`30.
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`Counsel for Plaintiff subsequently sent follow-up emails on June 10, 2021, June 28,
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`2021 and July 16, 2021 requesting the information set forth above.
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`31.
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`BCBS ND did not respond to these subsequent requests and, on July 30, 2021,
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`counsel for Plaintiff advised BCBS ND that, in light of Plaintiff’s continued requests, and BCBS
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`ND’s inaction, Plaintiff had fulfilled its administrative obligations.
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`{N1903141 - 2}
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`6
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`32.
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`After multiple attempts to have the Defendant BCBS ND provide the information
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`requested, and under the applicable regulations Plaintiff’s claim has been deemed exhausted and
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`it is entitled to bring an action pursuant to 29 U.S.C. § 1132.
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`ERISA CAUSES OF ACTION
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`COUNT I
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`33.
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`Plaintiff incorporates, as if fully restated herein, the allegations in paragraphs 1
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`through 32 of the Complaint.
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`34.
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`Defendant, BCBS ND, has failed to exercise its statutorily required duty of care
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`and prudence and failed to administer the Plan solely in the interests of the participants and
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`beneficiaries as required under 29 U.S.C. §1104(a)(1), and by denying benefits to the Plaintiff
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`contrary to the law, applicable regulations, and terms of the Plan.
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`35.
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`Defendant, BCBS ND, has failed in its duty of care to investigate Plaintiff’s claim
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`thoroughly. BCBS ND has arbitrarily ignored documents Plaintiff has submitted and has failed to
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`respond. In addition, the denials by BCBS ND have failed to use appropriate standards for medical
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`necessity and the related criteria to administer these benefits in violation of 29 U.S.C. §
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`1104(a)(1)(D).
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`36.
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`Defendant, BCBS ND, has failed to comply with the procedural requirements of
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`ERISA. Specifically, the denial of payment of benefits by Defendant BCBS ND did not comport
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`with the requirements of C.F.R. § 2560.503-1 et seq., which specifies the procedural requirements
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`for the claim review process and specifically requires that the claim administrator who denies
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`benefits provide the claimant with a notice that is specific and enumerated in this regulation and
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`that, moreover, requires that the initial denial of benefits to the claimant/Plaintiff inform the
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`Plaintiff of what is necessary to perfect his/her/its claim.
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`{N1903141 - 2}
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`37.
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`BCBS ND continues to wrongfully deny payment of healthcare benefits and
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`because the Defendant has breached its duty to administer the Plan with due care and denied
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`benefits to Plaintiff without a reasonable basis, Plaintiff is entitled to an order to have the claim
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`paid.
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`COUNT II
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`38.
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`Plaintiff incorporates, as if fully restated herein, the allegations in paragraphs 1
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`through 37 of the Complaint.
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`39.
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`ERISA mandates that an Employee Benefit Plan shall be established and
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`maintained pursuant to a written instrument, 29 U.S.C. § 1102(a)(1).
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`40.
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`Under the terms of the Plan document that is, in this case, a policy of insurance, the
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`denial of payment of healthcare benefits was unreasonable and without legal basis under the Plan
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`document and is not a reasoned decision based on substantial, reliable evidence.
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`41.
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`The Plaintiff requests that this Court review the Plan and declare the rights of
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`Plaintiff, as Insured’s assignee, under the Plan.
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`42.
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`The Plaintiff is entitled to these benefits and they are due and owing to the Plaintiff
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`in an amount not yet ascertainable. The Plaintiff seeks repayment of these benefits under 29 U.S.C.
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`§ 1132(a)(1) and seeks the Court’s determination of the amount of the benefits payable under the
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`terms of the Plan.
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`{N1903141 - 2}
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`STATE LAW CAUSES OF ACTION
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`COUNT III
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`BREACH OF CONTRACT
`Plaintiff incorporates, as if fully restated herein, the allegations in paragraphs 1
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`43.
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`through 42 of the Complaint.
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`44.
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`BridgePoint, in good faith, contacted BCBS ND and Highmark to determine
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`whether the Insured had benefits for the specific services to be provided.
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`45.
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`Through its verifications, BCBS ND entered into a bilateral onerous commutative
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`contract whereby BridgePoint would provide its agreed upon covered services at rates
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`predetermined by the MPA.
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`46.
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`Said contract, created through the verification of benefits process, was made with
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`BCBS ND, through its agent, Highmark, creating an independent legal duty on the part of BCBS
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`ND to pay for the services rendered.
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`47.
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`48.
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`Due to the nature of the contract, the duties of good faith are required.
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`In reliance upon BCBS ND and Highmark’s representations of coverage and the
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`rates of reimbursement provided under the MPA, BridgePoint provided necessary medical
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`treatment to the Insured.
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`49.
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`Contrary to BCBS ND’s representations and resulting obligations stemming from
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`the verification of benefits process, BCBS ND failed to tender payment in accordance with their
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`representation and obligations under the MPA.
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`50.
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`BCBS ND knowingly breached its contractual obligations to BridgePoint by failing
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`to reimburse BridgePoint for the services provided to the Insured, which has caused BridgePoint to
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`suffer economic losses to its businesses for which it seeks damages.
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`{N1903141 - 2}
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`51.
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`BridePoint has been harmed as a result of BCBS ND’s actions and seeks
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`damages in an amount to be proven at trial, in addition to any and all other relief deemed lawful,
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`just and/or proper, including an award of reasonable attorney's fees and costs of this action.
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`COUNT IV
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`DETRIMENTAL RELIANCE
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`52.
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`Plaintiff incorporates as if fully restated herein the allegations in paragraphs 1
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`through 51 of the Complaint.
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`53.
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`Defendant is liable to Plaintiffs, pursuant to Louisiana Civil Code Art. 1967, which
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`states in pertinent part:
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`A party may be obligated by a promise when he knew or should have
`known that the promise would induce the other party to rely upon it to
`his detriment and the other party was reasonable in so relying. Recovery
`may be limited to the expenses incurred or the damages suffered as a
`result of the promisee's reliance on the promise.
`To obtain damages under the theory of detrimental reliance, BridgePoint must prove
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`54.
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`the existence of a promise and their reasonable reliance on said promise to their detriment.
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`55.
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`As one Louisiana Circuit has noted, "[t]he doctrine of detrimental reliance is
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`designed to prevent injustice by barring a party from taking a position contrary to his prior
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`acts, admissions, representations, or silence." East Tangipahoa Development Company, LLC
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`v. Bedico Junction, LLC, 5 So.3d 238, 246 (La.App. 1 Cir. 2008).
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`56.
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`BridgePoint, prior to agreeing to provide any medical services to the Insured,
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`contacted BCBS ND, through Highmark, and received a representation that the proposed services
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`were covered.
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`57.
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`BridgePoint submitted the required claim information and forms necessary to
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`obtain reimbursement, however, BCBS ND failed to tender payment.
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`{N1903141 - 2}
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`58.
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`Had BridgePoint been aware that BCBS ND would not pay for the services
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`rendered, BridgePoint would have declined to provide same unless other guaranteed payment
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`arrangements could be made.
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`59.
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`BridgePoint has been harmed as a result of BCBS ND’s actions and seeks damages in
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`an amount to be proven at trial, in addition to any and all other relief deemed lawful, just and/or proper,
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`including an award of reasonable attorney's fees and costs of this action.
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`COUNT V
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`NEGLIGENT MISREPRESENTATION
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`60.
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`Plaintiff incorporates, as if fully restated herein, the allegations in paragraphs 1
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`through 59 of the Complaint.
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`61.
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`Louisiana is a jurisdiction which allows recovery in tort for purely economic loss
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`caused by misrepresentation, even where privity of contract is absent. See Lifecare Hospitals, Inc.
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`v. B & W Quality Growers, Inc., 887 So.2d 624, 632, 39, 065 (La.App. 2 Cir. 10/27/04).
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`62.
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`A claim for negligent misrepresentation is available to BridgePoint via Louisiana
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`Civil Code articles 2315 and 2316.
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`63.
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`Louisiana
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`jurisprudence has
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`integrated
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`the common
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`law negligent
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`misrepresentation tort doctrine into the duty/risk analysis in negligent misrepresentation cases.
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`64.
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`Under the circumstances described in this Complaint, BCBS ND had a legal duty to
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`supply correct information regarding the existence and extent of insurance coverage for BridgePoint’s
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`provision of medical services to the Insured.
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`65.
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`BridgePoint relied, to their detriment, on representations and statements made by
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`BCBS ND and Highmark as to the existence and extent of insurance coverage for BridgePoint’s
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`provision of medical services to the Insured.
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`{N1903141 - 2}
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`66.
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`67.
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`Plaintiff is entitled to rely upon BCBS ND’s representations and statements.
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`To the extent BCBS ND and the Plan did not provide coverage for the Insured, BCBS
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`ND negligently misrepresented such coverage, causing BridgePoint to sustain damages including loss
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`of revenue for services rendered.
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`68.
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`BCBS ND is liable to BridgePoint for it’s negligent misrepresentations pursuant
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`to Louisiana Civil Code Art. 2315 and other Louisiana law.
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`69.
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`BridgePoint has been injured and damaged as a result of BCBS ND’s actions in an
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`amount to be proven at trial.
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`COUNT VI
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`VIOLATION OF LA. R.S. 22:1821
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`70.
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`Plaintiff incorporates, as if fully restated herein, the allegations in paragraphs 1
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`through 69 of the Complaint.
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`71. According to La. R.S. 22:1821, all claims arising under the terms of health
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`contracts issued in this state shall be paid not more than thirty (30) days from the date upon
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`which written notice and proof of claim, in the form required by the terms of the policy, are
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`furnished to the insurer unless just and reasonable grounds, such as would put a reasonable
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`and prudent businessman on his guard, exist.
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`72. BCBS ND has failed to comply with La. R.S. 22:1821 by failing to pay the full
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`amount required for treatment provided to the insured within said thirty (30) day period,
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`despite BridgePoint’s provision of valid notices and proof of claims.
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`73.
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`BCBS ND’s failure to tender monies owed in the time frame provided subjects
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`it to penalties under La. R.S. 22:1821, which BridgePoint seek in addition to any and all other
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`{N1903141 - 2}
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`relief deemed lawful, proper and or just, including an award of reasonable attorney’s fees and
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`costs.
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`COUNT VII
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`UNJUST ENTRICHMENT
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`74.
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`Plaintiff incorporates, as if fully restated herein, the allegations in paragraphs 1
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`through 73 of the Complaint.
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`75.
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`To the extent BridgePoint is without other remedies at law, Plaintiff asserts
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`that by undertaking wrongful actions described in this Complaint, BCBS ND has retained
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`and continues to retain monies that rightfully belong to BridgePoint, causing BCBS ND to
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`be unjustly enriched.
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`76.
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`Because BCBS ND’s action are without legal or equitable justification or
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`cause, they should be required to pay these monies to BridgePoint.
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`77.
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`Plaintiff further seeks any and all relief deemed proper under
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`the
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`circumstances including an award of reasonable attorney’s fees and costs of this action.
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`WHEREFORE, Plaintiff prays for the following relief:
`
`A.
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`That the Court enter judgment in Plaintiff’s favor and against the Defendant, and
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`that the Court order the Defendant to account for and pay healthcare benefits to
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`Plaintiff in an amount to which Plaintiff is entitled under the terms of the Plan;
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`B.
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`That the Court order the Defendant to pay Plaintiff’s pre-judgment interest on all
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`claim amounts that have accrued prior to the date of judgment and enter judgment
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`accordingly, and that the Court reserve jurisdiction to enforce the equitable decree;
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`C.
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`That the Court order all equitable relief such as surcharge, reformation, and
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`disgorgement;
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`{N1903141 - 2}
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`D.
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`That the Court declare Plaintiff’s rights under the Plan, the ERISA statutes, the
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`MPA and the applicable state laws and order Defendant to pay Plaintiff the benefits
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`owed to the Insured at the rates set in the MPA to be perfected by an order of this
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`Court under 29 U.S.C. § 1132(A)(3)(A) and (B);
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`E.
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`That the Court award Plaintiff its attorney’s fees pursuant to 29 U.S.C. § 1132(g);
`
`La. R.S. 22:1821 and applicable state law.
`
`F.
`
`That Plaintiff recover any and all other relief to which it may be entitled, as well as
`
`the costs of suit.
`
`Dated this 21st day of October, 2021 at New Orleans, Louisiana.
`
`Respectfully submitted,
`
`
`By: s/ Michael L. Vincenzo
`Michael L. Vincenzo (LA Bar # 23965)
`Carolyn S. Buckley (LA Bar # 34468)
`Diana J. Masters (LA Bar # 37372)
`KING & JURGENS, L.L.C.
`201 St. Charles Avenue, 45th Floor
`New Orleans, Louisiana 70170
`Telephone: 504-582-3800
`Facsimile: 504-582-1233
`Email: mvincenzo@kingjurgens.com
`
`Attorneys for BridgePoint Healthcare Louisiana,
`LLC d/b/a BridgePoint Continuing Care Hospital
`Louisiana
`
`{N1903141 - 2}
`
`14
`
`
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