Case 2:22-cv-01958-ES-AME Document 1 Filed 04/05/22 Page 1 of 39 PageID: 1
`
`John W. Leardi
`Nicole P. Allocca
`BUTTACI LEARDI & WERNER LLC
`212 Carnegie Center, Suite 202
`Princeton, New Jersey 08540
`609-799-5150
`
`
`Counsel for Plaintiffs
` and the Putative Class
`
`
`Leslie Howard
`Michael Fried
`COHEN HOWARD, LLP
`766 Shrewsbury Ave., Suite 200
`Tinton Falls, NJ 07724
`732-747-5202
`
`UNITED STATES DISTRICT COURT
`DISTRICT OF NEW JERSEY
`
`
`
`Case No. 22-cv-1958
`
`
`
`
`
`CLASS ACTION COMPLAINT
`
`
`
`
`BETH SHAPIRO, LORI ANN LOMBARDI,
`and HEATHER GITLIN, on behalf of
`themselves and on behalf of all others
`similarly situated,
`
`
`Plaintiff,
`
`
`
`- v. -
`
`
`AETNA, INC. and AETNA LIFE
`INSURANCE COMPANY,
`
`
`Defendants.
`
`
`
`
`
`
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`
`Beth Shapiro (“Ms. Shapiro”), Lori Ann Lombardi (“Ms. Lombardi”), Heather Gitlin (“Ms.
`
`Gitlin”) (collectively, “Plaintiffs”), on behalf of themselves and on behalf of all others similarly
`
`situated, bring the following complaint against Defendants Aetna, Inc. and Aetna Life Insurance
`
`Company (“Aetna” or “Defendant”), as follows:
`
`FACTUAL BACKGROUND
`
`1.
`
`Aetna is in the business of insuring and/or administering health plans, many of
`
`which are governed by the Employee Retirement Income Security Act of 1974 (“ERISA”), 29
`
`U.S.C. §§ 1001 to 1461 (the “Aetna Plans”). In that role, Aetna receives, reviews, and/or processes
`
`benefits claims for services rendered by in-network and out-of-network medical providers to
`
`

`

`Case 2:22-cv-01958-ES-AME Document 1 Filed 04/05/22 Page 2 of 39 PageID: 2
`
`individuals enrolled in Aetna Plans (“Aetna Members”).
`
`2.
`
`Many Aetna Plans are “self-funded” where the plan sponsor is responsible for
`
`payment of claims from its own funds and those contributed by employees. Aetna acts as a third-
`
`party fiduciary and claims administrator for its self-funded Aetna Plans.
`
`3.
`
`Most Aetna Plans cover health care services received by Aetna Members from
`
`either in-network (“INET”) providers (who have negotiated contracts with Aetna and agreed to
`
`accept a reduced amount from billed charges for the services rendered) or out-of-network
`
`(“ONET”) providers (who are not contracted with Aetna and have not agreed to accept payments
`
`based on Aetna and its agents’ reimbursement determinations).
`
`4.
`
`To that end, Aetna Plans generally define ONET providers to be “a provider who
`
`in not a network provider,” i.e., a provider who is not “listed in the directory for your plan.”
`
`5.
`
`Aetna Plans also typically define the amount in benefits to be paid for a particular
`
`covered service under the plan to be based on a “Negotiated Charge” for INET providers and a
`
`“Recognized Charge” for ONET providers.
`
`6.
`
`For INET services, the Negotiated Charge is the amount a network provider has
`
`agreed to accept as a reduced amount from that provider’s standard billed charges for rendering
`
`services and patient liability is limited to in-network cost sharing obligations. Based on a
`
`negotiated and agreed amount between the INET provider and Aetna, there is no balance bill owed
`
`by the member to an INET providers. In distinguishing between INET and ONET providers on its
`
`website, Aetna states the following:
`
`An out-of-network doctor can bill you for anything over the amount
`that Aetna recognizes or allows. This is called “balance billing.” A
`network doctor has agreed not to do that.
`
`7.
`
`For ONET services, Aetna Plans specify that the Recognized Charge (sometimes
`
`also referred to as the “allowed amount” or the “out-of-network plan rate”) will be (i) a specified
`
`2
`
`

`

`Case 2:22-cv-01958-ES-AME Document 1 Filed 04/05/22 Page 3 of 39 PageID: 3
`
`percentage of the rates at which Medicare reimburses for the applicable services or other similar
`
`provision, (ii) the “reasonable amount rate” or a similar provision that is generally based on “usual,
`
`customary and reasonable”, “prevailing charge” or “reasonable charge” (“UCR”) rates, or rates
`
`that represent what most other providers in the same geographic area would charge for the same
`
`treatment or (iii) ‘an amount determined by Aetna, or its third-party vendors, based on data
`
`resources selected by Aetna, reflecting typical competitive charges and/or payments for a service,
`
`adjusted for the geographic area in which the service was provided” (collectively referred to as the
`
`“ONET Rates”). Generally, ONET providers are permitted to balance bill patients for the
`
`difference between their standard charges and the ONET Rates as defined under the applicable
`
`Aetna Plan.
`
`8.
`
`Historically, Aetna Plans reimbursed ONET services at UCR rates for many plans.
`
`Aetna previously set ONET UCR rates based on the “Ingenix Database,” which was developed
`
`and promulgated by UnitedHealthcare, a competing health insurance company and claims
`
`administrator. Several litigations were brought against UnitedHealthcare and other insurers,
`
`however, based on the allegation that the Ingenix database was improperly designed to underreport
`
`UCR charges. Ingenix was therefore later replaced by “FAIR Health.”
`
`9.
`
`FAIR Health was established as part of the settlement of an investigation by the
`
`Office of the Attorney General of New York State into the health insurance industry’s practice of
`
`determining out-of-network reimbursement based on data compiled and controlled by
`
`UnitedHealthcare, which the Attorney General determined was operating under a clear conflict of
`
`interest and was alleged to underpay out-of-network services.
`
`10.
`
`FAIR Health was formed “to establish and maintain a new database that could be
`
`used to help insurers determine their reimbursement rates for out-of-network charges and provide
`
`3
`
`

`

`Case 2:22-cv-01958-ES-AME Document 1 Filed 04/05/22 Page 4 of 39 PageID: 4
`
`patients with a clear, unbiased explanation of the reimbursement process.
`
`11.
`
`Using millions of healthcare claims submitted to it by insurers, health care plans,
`
`and providers, FAIR Health created a database that reflects the rates that most providers charge in
`
`each area based on the zip code where a health care service is being provided and the Current
`
`Procedural Terminology (“CPT”) Code to be used by the provider for each specific healthcare
`
`service. CPT Codes are numbers developed and licensed by the American Medical Association to
`
`identify each individual healthcare service for billing purposes.
`
`12.
`
`Upon the zip code and CPT Code being input into the database, FAIR Health will
`
`provide the UCR for the pertinent procedure in the designated geographic area. As FAIR Health
`
`explains:
`
`The Estimated Charge is what FAIR Health, based on its database,
`estimates that a medical provider in your area may bill for the
`procedure you selected when performed out-of-network. This
`estimate is based on the charges billed by providers for this service
`in the geozip where the service was performed. (A geozip, which
`defines a geographic region in our database, generally corresponds
`to the first three digits of a zip code.)
`
`The estimate shown is based on the 80th percentile, meaning that
`80% of the charges in our database for this procedure in your area
`were lower than or equal to our estimate and 20% were higher than
`or equal to our estimate. We use the 80th percentile because many
`insurers use the 80th percentile to determine usual, customary and
`reasonable (UCR) rates upon which they base out-of-network
`reimbursement.
`
`13.
`
`Since the demise of Ingenix, FAIR Health has become the gold standard in
`
`determining out-of-network pricing for services rendered to patients insured through benefit plans
`
`that contemplate UCR pricing.
`
`14.
`
`In or around 2011, Aetna adopted Fair Health as the basis for calculating ONET
`
`Rates in the vast majority of its self-funded benefit plans, generally using the 80th percentile of
`
`Fair Health. This is confirmed by the language of those plans themselves, as well as in letters and
`
`4
`
`

`

`Case 2:22-cv-01958-ES-AME Document 1 Filed 04/05/22 Page 5 of 39 PageID: 5
`
`other claim-related communications sent by Aetna as a fiduciary to its self-funded plan clients to
`
`Aetna Members and their providers, including Explanation of Benefit (“EOB”) statements and
`
`appeal letters describing the manner Aetna calculates ONET UCR rates. This is further confirmed
`
`by Aetna’s own description of these terms on its website.
`
`15.
`
`By reimbursing at this level, ONET providers received a fair payment for their
`
`services and “Balance Billing,” i.e., the patient being billed for the difference between an ONET
`
`provider’s charge, and the Fair Health amount was minimal.
`
`16.
`
`Aetna would also access independent third-party networks through its National
`
`Advantage Program (“NAP”), to reimburse ONET services at amounts lower than the UCR rate.
`
`Aetna highlights that a plan is part of NAP by placing the NAP identification on the member’s
`
`insurance card. Originally, NAP was established in part to identify those situations where Aetna
`
`contracts with several national third-party NAP vendors to access their provider networks (“NAP
`
`Contracts”) and contracted rates (“NAP Contract Rates”). NAP vendors include Multiplan and
`
`Beech Street, who administer third-party provider networks.
`
`17. When reimbursement is made through these NAP Contracts at the NAP Contract
`
`Rates as required under Aetna Plans and other applicable documents, the ONET provider agrees
`
`not to balance bill the member. Generally, Aetna’s access to NAP Contracts on behalf of its self-
`
`funded clients was/is referred to as the “Base Program.” The Base Program offers access to
`
`contracted rates for medical claims that could otherwise be paid at billed charges under indemnity
`
`plans, “the out-of-network portion of network-based plans, or for emergency/medically necessary
`
`services not provided within the network.”
`
`18.
`
`In exchange for reducing payments made to their self-insured employer clients
`
`through NAP Contract Rates and eliminating any balance bill to the affected member, Aetna was
`
`5
`
`

`

`Case 2:22-cv-01958-ES-AME Document 1 Filed 04/05/22 Page 6 of 39 PageID: 6
`
`paid a “shared savings fee” for the difference between FAIR Health and the NAP Contract Rates.
`
`This shared savings fee is often referred to as the “NAP Access Fee” in the Administrative Services
`
`Agreements (“ASAs”) Aetna enters with its self-funded clients.
`
`19.
`
`Sometime in or around 2016, Aetna began encouraging its self-funded clients to
`
`move away from FAIR Health and UCR based ONET rates in favor of Medicare-based rates. In
`
`doing so, Aetna exponentially reduced the amount paid for ONET services, while substantially
`
`increasing the amount of Balance Billing its members could be exposed to by ONET providers
`
`who were unwilling to accept Medicare rates, which are almost universally significantly lower
`
`than UCR rates.
`
`20. When Aetna began moving self-funded clients to Medicare-based ONET Rates, it
`
`expanded the NAP program that was made a part of Aetna Plans for its self-funded clients by
`
`renaming the Base Program the “Contracted Rates Component” and including within that
`
`component the negotiating of “Ad-Hoc Rates” with non-NAP Contract providers. This expansion
`
`was designed to increase the NAP Access Fees Aetna charges its self-funded clients.
`
`21.
`
`The NAP program also includes a Facility Charge Review (“FCR”) Component
`
`and an Itemized Bill Review (“IBR”) Component, neither of which is directly implicated by this
`
`lawsuit. When a self-funded Aetna client with the NAP program elects to enroll in either IBR or
`
`FCR, this automatically enrolls that self-funded plan in the Contracted Rates Component,
`
`including negotiating Ad-Hoc Rates with non-NAP Contract providers.
`
`22.
`
`Aetna’s Contracted Rate Component expanded the Base Program to also include
`
`claims from out-of-network providers covered as in-network benefits under the Plan because the
`
`claims are for emergency services, because the services are provided by out-of-network providers
`
`at in-network facilities, or because Aetna otherwise determines that the Plan Participant received
`
`6
`
`

`

`Case 2:22-cv-01958-ES-AME Document 1 Filed 04/05/22 Page 7 of 39 PageID: 7
`
`the services out-of-network because of circumstances outside the Plan Participant’s control
`
`(“Involuntary Out-of-Network Claims”). Notably, Aetna’s use of NAP Contract Rates for pricing
`
`Involuntary Out-of-Network Claims eliminates Balance Billing per the NAP vendor contracts with
`
`NAP Contract providers.
`
`23.
`
`Aetna also expanded the Contracted Rates Component beyond NAP Contract
`
`Rates; extending NAP to apply to services provided by ONET providers without a NAP Contract
`
`agreement with a NAP vendor by contracting with its self-funded clients to “attempt” to negotiate
`
`a claim specific rate/discount (“Ad-Hoc Rate”) in the absence of a NAP Contract Rate.
`
`24.
`
`The specific contours of the NAP program are fully-set out in the ASAs Aetna
`
`enters with its self-funded employer clients. And the language effectuating the NAP program and
`
`codifying Aetna’s corresponding obligations to its members are incorporated into the plan
`
`documents governing each self-funded plan Aetna administers.
`
`25.
`
`Aetna’s Plans go one step further than the ASAs, however. While the ASAs merely
`
`obligate Aetna to “attempt” to negotiate an Ad-Hoc Rate for Involuntary Out-of-Network Claims,
`
`its NAP plans clearly and unambiguously mandate that its members must be insulated from
`
`“Balance Billing” for “Involuntary Services,” which are defined under Aetna’s Plans as, inter alia,
`
`services “[p]erformed at a network facility by an out-of-network provider, unless that out-of-
`
`network provider is an assistant surgeon for your surgery.”
`
`26.
`
`Indeed, “Aetna’s NAP Plans,”i.e., self-funded Aetna Plans that have opted to
`
`participate in the NAP program administered by Aetna, require Aetna to calculate a member’s out-
`
`of-pocket exposure for Involuntary Services in the same way it would had the services been
`
`provided by an in-network provider, with the most common language appearing in Aetna’s NAP
`
`Plans stating: “[w]e will calculate your cost share for involuntary services in the same way as we
`
`7
`
`

`

`Case 2:22-cv-01958-ES-AME Document 1 Filed 04/05/22 Page 8 of 39 PageID: 8
`
`would if you received services from a network provider (emphasis added).”
`
`27.
`
`And while Aetna’s NAP Plans often define the Recognized Charge, i.e., the ONET
`
`Rate, as a set percentage of the Medicare fee schedule, those same plans also clearly and
`
`unambiguously state that the “Recognized Charge does not apply to involuntary services.” So,
`
`under Aetna’s NAP Plans, Involuntary Services, including services are provided by out-of-network
`
`providers at in-network facilities, are never subject to the Recognized Charge.
`
`28.
`
`In fact, Aetna’s NAP Plans contain no pricing methodology for Involuntary
`
`Services provided to a NAP plan member by an ONET provider without a NAP Contract vendor
`
`agreement other than Aetna’s clear and unambiguous obligation to immunize the member from
`
`any cost-sharing liability more than what would be payable to access in-network services.
`
`29.
`
`To meet its fiduciary obligations to its NAP Plan members receiving Involuntary
`
`Services from an ONET provider without a NAP Contract vendor agreement, Aetna must, under
`
`the clear and unambiguous terms of its NAP plans, either: (i) pay an ONET provider’s billed
`
`charges in full, less only the member’s in-network cost-sharing obligation; or (ii) negotiate an Ad
`
`Hoc Rate with the ONET provider to ensure its member is not subject to Balance Billing.
`
`30.
`
`Unfortunately, Aetna consistently fails to process member claims for benefits for
`
`Involuntary Services provided to a NAP plan member by an ONET provider without a NAP
`
`Contract vendor agreement in this fashion. Instead, it routinely pays these claims—including
`
`claims submitted on behalf of the Plaintiffs here—using the Recognized Charge, a Medicare-based
`
`rate, or some other artificially low ONET Rate calculated by Data iSight, a service of MultiPlan,
`
`even though none of these various payment methodologies apply to Involuntary Services.
`
`31.
`
`Data iSight is a tool that MultiPlan uses to price claims that Aetna has indicated
`
`that it started using sometime in or around 2019 to price and negotiate Involuntary Service claims
`
`8
`
`

`

`Case 2:22-cv-01958-ES-AME Document 1 Filed 04/05/22 Page 9 of 39 PageID: 9
`
`submitted by ONET providers on behalf of Aetna Members replacing Fair Health. Aetna EOBs
`
`when adjudicating such claims explain Data iSight’s role in the process thusly:
`
`You are an out-of-network provider and do not have a contracted
`rate from Aetna. The member’s plan provides benefits for covered
`out-of-network services at what we find to be a recognized charge.
`The recognized charge determination on the claim resulted in a
`reduction in payment and was calculated using the Data iSight
`database. In the event you choose to balance bill the member for
`the amount reflected in the ‘not payable’ column (in addition to
`the member’s deductible that is reflected in the patient responsibility
`column), the member may be eligible for patient advocacy services
`through Data iSight to resolve the outstanding balance. For
`questions regarding the recognized charge determination, contact
`Data iSight at 866-835-4022 or refer to www.dataisight.com”
`
`32.
`
`Aetna’s website states that for ONET claims that are to be paid at the preferred/in-
`
`network level under the terms of the member’s plan of benefits, i.e., Involuntary Services, Data
`
`iSight will negotiate with the provider so that the member is not responsible for charges more than
`
`any applicable deductible and coinsurance/copayments.
`
`33.
`
`But, when members (or their duly-authorized provider-representatives) attempt to
`
`appeal and/or negotiate these egregious underpayments, Aetna dismisses the appeals out-of-hand,
`
`with conflicting and arbitrary positions, and refuses to meaningfully negotiate Ad Hoc Rates as
`
`mandated by its NAP Plans.
`
`34.
`
`In fact, according to Data iSight representatives, effective January 1, 2021, Aetna
`
`specifically instructed Data iSight to only make one offer to ONET providers and not to engage in
`
`any further negotiations.
`
`35.
`
`Aetna underpays Involuntary Services claims and thereafter refuses to provide a
`
`full and fair review and/or fails to meaningfully negotiate with affected members or their ONET
`
`providers because it is financially incentivized to do so based on the NAP Access Fees it charges
`
`its self-funded clients through the claim wire, which are based on a percentage of the “savings” it
`
`9
`
`

`

`Case 2:22-cv-01958-ES-AME Document 1 Filed 04/05/22 Page 10 of 39 PageID: 10
`
`derives from underpaying claims.
`
`36.
`
`Aetna’s NAP Access Fee is a set-percentage of the “Savings,” which is defined in
`
`the ASAs as the difference between (i) the Reference Price, and (ii) the amount Aetna allows the
`
`provider under NAP, for services or benefits covered under the Plan affected by NAP. The ASAs
`
`further define the “Reference Price” as: (i) for a professional service paid using an Ad Hoc Rate
`
`negotiated by Aetna for an Involuntary Out-of-Network Claim, the amount billed by the provider;
`
`and (ii) for all other professional services the lesser of the billed charge or the 80th percentile
`
`charge as reported by the applicable FAIR Health database.
`
`37.
`
`So, for Involuntary Services provided by ONET providers without a NAP Contract
`
`vendor contract, Aetna’s NAP Access Fee is the difference between what it pays to that ONET
`
`provider and the ONET provider’s billed charges. Thus, Aetna is very plainly incentivized to pay
`
`the lowest amount possible, if only to increase the NAP Access Fees it charges its clients.
`
`38.
`
`This action challenges benefit adjudications made by Aetna in response to requests
`
`for coverage under self-funded Aetna NAP Plans sponsored by private employers where Aetna
`
`failed to insulate its members from liability for Balance Billing from ONET providers for
`
`Involuntary Services, as that term is defined by the Aetna Plans, which mirrors the definition of
`
`Involuntary Out-of-Network Claims under the ASAs. Specifically, Aetna consistently and
`
`routinely underpaid claims for Involuntary Services at ONET Rates that were not Ad-Hoc Rates
`
`(or billed charges) as required by its plans and by its ASAs with its employer clients, therefore
`
`exposing Aetna Members, including the named Plaintiffs herein, to substantial Balance Billing
`
`liability, i.e., without limiting the financial exposure of Aetna Members to INET cost-sharing
`
`amounts, all to increase the NAP Access Fees it charged its employer clients.
`
`39.
`
`In doing so, Aetna violated ERISA by failing to pay claims in adherence with the
`
`10
`
`

`

`Case 2:22-cv-01958-ES-AME Document 1 Filed 04/05/22 Page 11 of 39 PageID: 11
`
`terms and conditions of its plans.
`
`40.
`
` Aetna also breached its fiduciary duties, including its duty of loyalty and ERISA’s
`
`prohibition against self-dealing, by elevating its own financial interests, including its interest in
`
`generating additional NAP Access Fees, above those of its self-insured employer clients and their
`
`member-employees, and the duty to act in accordance with the terms of its ERISA plans.
`
`A. Ms. Shapiro and her ONET Surgeon Dr. Cooperman.
`
`THE PARTIES
`
`41. Ms. Shapiro is a 66-year-old former Aetna member, with the health benefit plan
`
`through which she had health benefits during the time period in issue here sponsored and self-
`
`insured by her employer, Ventura, Miesowitz, Keough & Warner, P.C., but administered by Aetna
`
`pursuant to an ASA. She resides in Rockaway, NJ.
`
`42.
`
`Dr. Cooperman is double board-certified plastic surgeon with a private practice
`
`located at 200 South Orange Avenue, Suite 155, Livingston, NJ. His practices focus is on breast
`
`reconstruction, and he specializes in microsurgical applications.
`
`B. Ms. Lombardi and her ONET Surgeon Dr. Small.
`
`43. Ms. Lombardi is a 55-year-old Aetna member, with her health benefit plan
`
`sponsored and self-insured by her employer, Bed Bath & Beyond, Inc., but administered by Aetna
`
`pursuant to an ASA. She resides in Pequannock Township, NJ.
`
`44.
`
`Dr. Small is a board certified, fellowship-trained, plastic surgeon with a private
`
`practice located at 275 Forest Ave, Suite 202, Paramus, NJ 07652. His practice includes an
`
`emphasis on microsurgical reconstruction of the breast.
`
`11
`
`

`

`Case 2:22-cv-01958-ES-AME Document 1 Filed 04/05/22 Page 12 of 39 PageID: 12
`
`C. Ms. Gitlin and her ONET Surgeon Dr. Tamburrino.
`
`45. Ms. Gitlin is a 55-year-old Aetna member, with her health benefit plan sponsored
`
`and self-insured by her employer, Educational Testing Service, but administered by Aetna
`
`pursuant to an ASA. She resides in Doylestown, PA.
`
`46.
`
`Dr. Tamburrino is a double-board certified, fellowship trained plastic surgeon with
`
`offices located at 1765 Springdale Road, Suite 1, Cherry Hill, NJ 08003, and 800 W State Street,
`
`Suite 300, Doylestown, PA 18901. He is renowned for his innovative work with breast
`
`reconstruction for patients who have survived cancer.
`
`D.
`
`47.
`
`Defendants Aetna, Inc. and Aetna Life Insurance Company.
`
`Aetna, Inc. is a health insurance company incorporated under the laws of the
`
`Commonwealth of Pennsylvania with its registered office at 980 Jolly Road, Blue Bell, PA 19422,
`
`and with its corporate headquarters and principal place of business located at 151 Farmington
`
`Avenue, Hartford, CT 06156. Since November 28, 2018, the company has been a subsidiary of
`
`CVS Health. Either directly or through its wholly-owned and controlled subsidiaries, Aetna, Inc.
`
`issues and administers health insurance plans and is delegated responsibility to make benefit
`
`determinations pursuant to those plans. As such, Aetna, Inc. is a fiduciary under ERISA regarding
`
`the claims at issue in this litigation.
`
`48.
`
`Aetna Life Insurance Company is a wholly-owned and controlled subsidiary of
`
`Aetna, Inc. that was established to fulfill the functions and purposes of Aetna, Inc. and to operate
`
`subject to the decisions and guidelines of Aetna, Inc. For example, Ms. Gitlin’s plan identifies
`
`Aetna Life Insurance Company as the third-party administrator, pursuant to which it operates as
`
`the “Claims Administrator” under the plan. In this role, Aetna handles pre-certification
`
`procedures, case management, claims processing, and review of claim adjudications that are
`
`appealed, and provides customer service for all these functions. Aetna also sets the terms and
`
`12
`
`

`

`Case 2:22-cv-01958-ES-AME Document 1 Filed 04/05/22 Page 13 of 39 PageID: 13
`
`conditions for benefit claims procedures (for example, establishing the Recognized Charge or
`
`determining whether a service is Medically Necessary) and manages provider networks, including
`
`the administration of the NAP program and its various components, and the adjudication of
`
`benefit claims for Involuntary Services as defined in Aetna’s Plans. Thus, Aetna Life Insurance
`
`Company, acting directly and on behalf of and under the supervision and direction of Aetna, Inc.,
`
`is also a fiduciary under ERISA regarding the claims at issue in this litigation.
`
`JURISDICTION AND VENUE
`
`49.
`
`Aetna’s actions in administering employer-sponsored health care plans, including
`
`setting payment rates for ONET benefits under its Plans, are governed by ERISA. Thus, subject-
`
`matter jurisdiction is appropriate over Plaintiffs’ claims under 28 U.S.C. § 1331 (federal question
`
`jurisdiction) and 29 U.S.C. § 1132(e) (ERISA).
`
`50.
`
`Venue is appropriate in this District under 28 U.S.C. § 1391(b)(2) based on Ms.
`
`Shapiro’s and Ms. Lombardi’s residence in New Jersey. Venue is also appropriate under 29 U.S.C.
`
`§ 1132(e)(2) because Defendants may be found here and are authorized to do business in New
`
`Jersey, either directly or through wholly owned and controlled subsidiaries.
`
`51.
`
`This Court has personal jurisdiction over Aetna because Aetna has substantial
`
`contacts with, and regularly conduct business in, New Jersey.
`
`FACTUAL ALLEGATIONS
`
`A. Ms. Shapiro’s Claims and Appeals to Aetna for Services Provided by Dr.
`Cooperman.
`
`52.
`
`In September 2019, Ms. Shapiro was diagnosed with breast cancer. She
`
`immediately thereafter began working with her doctors to determine an appropriate course of
`
`treatment. Ultimately, she and her doctors settled on a plan that includes a single procedure, with
`
`a reconstructive procedure to be performed immediately after the cancer removal.
`
`13
`
`

`

`Case 2:22-cv-01958-ES-AME Document 1 Filed 04/05/22 Page 14 of 39 PageID: 14
`
`53. While Ms. Shapiro’s treatment plan contemplated an INET facility, an INET
`
`oncologist, and an INET breast surgeon, there was no INET microsurgeon with privileges at her
`
`hospital of choice available to work with her surgical team. Thus, she was referred to Dr.
`
`Cooperman, an ONET reconstructive surgeon.
`
`54.
`
`By the time she was referred to Dr. Cooperman, there was no time for Ms. Shapiro,
`
`a woman suffering from the emotional impact of breast cancer with a desire to quickly remove the
`
`cancer from her body, to search for an entirely new INET team in her geographical area capable
`
`of providing the treatment plan she decided upon at a different facility.
`
`55. Ms. Shapiro’s Plan’s definition of “Involuntary Services” includes services
`
`“[p]erformed at a [INET] facility by an [ONET] provider,” and further provides that Aetna “will
`
`calculate [the member’s] cost share for involuntary services in the same way as [Aetna] would if
`
`[the member] received the services from an [INET] provider.” Notably, the Recognized Charge
`
`under Ms. Shapiro’s plan for ONET professional services, defined as 105% of the Medicare
`
`allowable rate, “does not apply to involuntary services”. So, Ms. Shapiro’s Plan, sponsored by her
`
`employer and administered by Aetna, did not contain any payment methodology for the calculation
`
`of benefits payable for ONET services performed in an INET facility, which is precisely what
`
`occurred when Dr. Cooperman joined Ms. Shapiro’s surgical team. Aetna was therefore obligated
`
`under the plan to ensure that Ms. Shapiro’s benefits were paid in such a way to limit her out-of-
`
`pocket responsibility for Involuntary Services to her INET financial obligations.
`
`56. While Dr. Cooperman agreed to take Ms. Shapiro on as a patient, his office made
`
`clear to her that it would not accept Medicare-based rates from Aetna as payment in full for Dr.
`
`Cooperman’s services. Ms. Shapiro acknowledged this, and agreed to bear responsibility on a
`
`financial disclaimer dated September 23, 2019 “for any excess amount above the allowed amount
`
`14
`
`

`

`Case 2:22-cv-01958-ES-AME Document 1 Filed 04/05/22 Page 15 of 39 PageID: 15
`
`[Aetna] pays or reimburses [Dr. Cooperman[ for healthcare services received.”
`
`57.
`
`Dr. Cooperman’s office then set about having the services he intended to provide
`
`Ms. Shapiro authorized by Aetna. For example, on September 24, 2019, Dr. Cooperman’s office
`
`spoke with Joy H. at Aetna (Ref # 4782210227), who verified Ms. Shapiro’s deductible,
`
`coinsurance responsibility, and annual out-of-pocket maximum. During that same call, Joy H. also
`
`represented that Ms. Shapiro’s plan reimbursed ONET services at 105% of Medicare rates. When
`
`Dr. Cooperman’s office indicated this was not acceptable, Joy H. instructed Dr. Cooperman’s
`
`office to send an authorization request along with the CPT codes to be billed, Dr. Cooperman’s
`
`UCR charges for those codes, and to indicated that Medicare-based rates were not acceptable.
`
`Notably, Dr. Cooperman’s office disclosed to Joy H. that the procedure in question was to be
`
`performed at St. Barnabas Medical Center in Livingston, NJ, an INET facility; but at no point did
`
`Joy H. reference the Involuntary Services language set forth in Ms. Shapiro’s plan.
`
`58.
`
`Dr. Cooperman’s office did precisely what Joy H. instructed. Specifically, Dr.
`
`Cooperman’s office placed or received follow-up calls to Aetna on October 29, November 4,
`
`November 5, November 6, November 12, and November 19, 2019. Additionally, on October 29,
`
`2019, Dr. Cooperman’s office sent Aetna both: (i) a completed “Breast Reduction and/or
`
`Reconstructive Surgery Precertification Information Request Form; and (ii) a letter disclosing Dr.
`
`Cooperman’s fees for the proposed procedure(s), along with a “REQUEST FOR NEGOTIATION
`
`TO BE PAID AT HIGHEST [INET] BENEFIT LEVEL.”
`
`59.
`
`On November 4, 2019, Aetna approved the procedure(s) to be performed by Dr.
`
`Cooperman as medically necessary but denied a so-called “in-network” exception. Of course,
`
`under the clear and unambiguous terms of Ms. Shapiro’s plan, no such “exception” was needed,
`
`because as an Involuntary Services, deemed as covered and medically necessary by and through
`
`15
`
`

`

`Case 2:22-cv-01958-ES-AME Document 1 Filed 04/05/22 Page 16 of 39 PageID: 16
`
`Aetna’s preauthorization (ID # W206471279), Ms. Shapiro’s cost share should have been
`
`calculated by Aetna “in the same way as [it] would if [she] received the services from a [INET]
`
`provider; which, of course obligated Aetna to either pay Dr. Cooperman’s full billed charges, less
`
`only INET cost sharing amounts, or to negotiate some other fee with his office directly.
`
`60.
`
`Dr. Cooperman’s office later called Aetna to confirm that additional procedure
`
`codes needed to be added to the prior authorization. Ray H. approved CPT 19350-50 and stated
`
`that CPT 15002 and 15201 did not require prior authorization.
`
`61.
`
`On November 18, 2019, Ms. Shapiro underwent a lumpectomy performed by her
`
`INET breast surgeon, Dr. Blackwood. Immediately following the lumpectomy, Dr. Cooperman
`
`and Jessica Meade, RNFA, performed oncoplastic reconstruction.
`
`62.
`
`The goal in oncoplastic reconstruction is twofold. First, the goal is to salvage the
`
`native breast and prevent a mastectomy. Indeed, prior to oncoplastic surgery, many patients with
`
`breast cancer would be recommended to undergo mastectomies. Second, performed a left
`
`oncoplastic breast reduction, right breast reduction, and a left nipple areola complex graft.
`
`63.
`
`Additionally, oncoplastic reconstruction has superior results for patients who
`
`undergo a lumpectomy. Prior to oncoplastic reconstruction, many patients who underwent
`
`lumpectomy would be lef