Case 2:22-cv-02495 Document 1 Filed 04/28/22 Page 1 of 7 PageID: 1
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`UNITED STATES DISTRICT COURT
`DISTRICT OF NEW JERSEY
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`ADVANCED SURGERY CENTER,
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`Plaintiff,
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`-against-
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`UNITED HEALTHCARE INSURANCE
`COMPANY,
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`Defendant.
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`Index No.:
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`COMPLAINT
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`Plaintiff, Advanced Surgery Center (“Plaintiff”), on assignment of Elizabeth O., by and
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`through its attorneys, Halkovich Law, LLC, by way of Complaint against United Healthcare
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`Insurance Company (“Defendant”), alleges as follows:
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`PARTIES, JURISDICTION, AND VENUE
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`1.
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`Plaintiff is an Ambulatory Surgical Center registered to do business in the State of
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`New Jersey with its principal place of business located at 1608 Lemoine Ave, Suite 101 Fort
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`Lee, NJ 07024.
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`2.
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`Upon information and belief, Defendant is engaged in providing and/or
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`administering health care plans and/or policies in the State of New Jersey.
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`3.
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`Jurisdiction is proper in this Court pursuant to 28 U.S.C. § 1331 and 29 U.S.C.
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`§ 1132(e). The insurance policy at issue is governed by the Employee Retirement Income
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`Security Act (“ERISA”), 29 U.S.C. § 1001 et seq. The administrative remedies have been
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`exhausted.
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`FACTUAL BACKGROUND
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`4.
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`This dispute arises from Defendant’s failure to properly reimburse Plaintiff for the
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`medically necessary, out-of-network, reasonable, and valuable facility services provided to
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`Patient on August 1, 2019.
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`5.
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`Specifically, on August 1, 2019, Patient underwent surgical treatment for which
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`Plaintiff provided facility services. (See, Exhibit A, attached hereto.)
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`6.
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`At the time of her treatment, Patient was the insured and/or beneficiary of an
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`employer-based health insurance plan for which Defendant served as claims administrator.
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`7.
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`Patient assigned her applicable health insurance rights and benefits to Plaintiff.
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`(See, Exhibit B, attached hereto.)
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`8.
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`Prior to her treatment, Patient sought and received prior authorization for the
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`treatment in question, including for Current Procedural Terminology (“CPT”) codes 49585,
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`49560, 49568, 15734, 13101, 13102, and 11981. (See, Exhibit C, attached hereto.)
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`9.
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`Specifically, Defendant’s prior authorization specified the above-referenced CPT
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`codes, stating in reference to them, “it was determined the following service is eligible for
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`Outpatient Facility coverage.” Id.
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`10.
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`After treating Patient, Plaintiff submitted a UB04 medical bill to Defendant
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`seeking payment in the amount of $117,652.00, in accordance with Plaintiff’s usual and
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`customary rates. (See, Exhibit D, attached hereto.)
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`11.
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`As an out-of-network facility, Plaintiff does not have a network contract with
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`Defendant that would determine or limit payment for services rendered to Defendant’s members.
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`12.
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`In response to Plaintiff’s medical bill, on August 26, 2019, Defendant “allowed”
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`reimbursement in the total amount of $12,478.66 for CPT 49585 only, of which $5,794.90 was
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`paid by Defendant, and $6,689.76 was applied towards Patient’s coinsurance and deductible
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`liability. (See, Exhibit E, attached hereto.)
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`13.
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`Despite the prior authorization, CPT codes 49560, 49568, 15734x2, 11981, and
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`13101 were denied by Defendant, and were appended with “Remark Note" designation “CY.”
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`14.
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`“Remark Note" designation “CY” was defined within Defendant’s explanation of
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`benefits (“EOB”) form as follows:
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`This payment has been reduced by the amount that is above the
`eligible expense amount for out-of-network services under your plan
`in your area. If you are billed for an amount above the eligible
`amount, please call Viant directly at 1-800-598-6888.
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`Id.
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`15.
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`However, regardless of Defendant’s pricing of the subject services, Defendant
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`failed to issue reimbursement for all but one of the performed CPT codes, even though each code
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`was previously authorized.
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`16.
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`Plaintiff submitted multiple internal appeals to Defendant challenging
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`Defendant’s denials as improper under the terms of Patient’s insurance plan, and inconsistent
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`with the prior authorization obtained by Patient.
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`17.
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`However, Defendant failed to issue any additional reimbursement in response to
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`Plaintiff’s appeals.
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`18.
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`Upon information and belief, Defendant has failed to issue proper reimbursement
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`for Patient’s treatment in accordance with the terms of her insurance plan.
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`As a result, Plaintiff, has been damaged in the total amount of $105,173.34.
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`Accordingly, Plaintiff brings this action for recovery of the outstanding balance.
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`19.
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`20.
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`COUNT ONE
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`FAILURE TO MAKE PAYMENTS PURSUANT TO MEMBER’S PLAN UNDER 29
`U.S.C. § 1132(a)(1)(B)
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`Plaintiff repeats and realleges the allegations set forth in paragraphs 1 through 20
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`21.
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`of the Complaint as though fully set forth herein.
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`22.
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`23.
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`Plaintiff avers this Count to the extent ERISA governs this dispute.
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`Section 502(a)(1), codified at 29 U.S.C. § 1132(a) provides a cause of action for a
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`beneficiary or participant seeking payment under a benefits plan.
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`24.
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`Plaintiff has standing to seek such relief based on the assignments of benefits
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`obtained by Plaintiff from Patient.
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`25.
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`Upon information and belief, Defendant acted in a fiduciary capacity in
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`administering any claims determined to be governed by ERISA.
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`26.
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`Plaintiff is entitled to recover benefits due to Patient under any applicable ERISA
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`plan or policy.
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`27.
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`As a result, Plaintiff has been damaged and continues to suffer damages in the
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`operation of its medical practice.
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` COUNT TWO
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`BREACH OF FIDUCIARY DUTY AND CO-FIDUCIARY DUTY UNDER 29 U.S.C.
`§ 1132(a)(3), 29 U.S.C. § 1104(a)(1) and 29 U.S.C. § 1105 (a)
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`28.
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`Plaintiff repeats and realleges the allegations set forth in paragraphs 1 through 27
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`of the Complaint as though fully set forth herein.
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`29.
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`29 U.S.C. § 1132(a)(3)(B) provides a cause of action by a participant, beneficiary,
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`or fiduciary to obtain other appropriate equitable relief (i) to redress such violations or (ii) to
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`enforce any provisions of this subchapter or the terms of the plan.
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`30.
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`Plaintiff seeks redress for Defendant’s breach of fiduciary duty and/or
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`Defendant’s breach of co-fiduciary duty under 29 U.S.C. § 1132(a)(3), 29 U.S.C. § 1104(a)(1)
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`and 29 U.S.C. § 1105 (a).
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`31.
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`32.
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`29 U.S.C. § 1104(a)(1) imposes a “prudent man standard of care” on fiduciaries.
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` Specifically, a fiduciary shall discharge its duties with respect to a plan solely in
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`the interest of the participants and beneficiaries and (A) for the exclusive purpose of: (i)
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`providing benefits to participants and their beneficiaries; and (ii) defraying reasonable expenses
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`of administering the plan; (B) with the care, skill, prudence, and diligence under the
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`circumstances then prevailing that a prudent man acting in a like capacity and familiar with such
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`matters would use in the conduct of an enterprise of a like character and with like aims; (C) by
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`diversifying the investments of the plan so as to minimize the risk of large losses, unless under
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`the circumstances it is clearly prudent not to do so; and (D) in accordance with the documents
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`and instruments governing the plan insofar as such documents and instruments are consistent
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`with the provisions of this subchapter and subchapter III of this chapter. 29 U.S.C. § 1104(a)(1).
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`33.
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`34.
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`29 U.S.C. § 1105(a) imposes liability for breaches of co-fiduciaries.
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`Specifically, a fiduciary with respect to a plan shall be liable for a breach of
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`fiduciary responsibility of another fiduciary with respect to the same plan in the following
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`circumstances: (1) if he participates knowingly in, or knowingly undertakes to conceal, an act or
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`omission of such other fiduciary, knowing such act or omission is a breach; (2) if, by his failure
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`to comply with section 1104(a)(1) [“prudent man standard of care] of this title in the
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`administration of his specific responsibilities which give rise to his status as a fiduciary, he has
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`enabled such other fiduciary to commit a breach; or (3) if he has knowledge of a breach by such
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`other fiduciary, unless he makes reasonable efforts under the circumstances to remedy the
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`breach. 29 U.S.C. § 1105(a).
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`35.
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`Here, when Defendant acted to partially deny payment for the medical bill at
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`issue, and when they responded to the administrative appeals initiated by Plaintiff, they were
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`clearly acting as a “fiduciary” as that term is defined by ERISA § 1002(21)(A) because, among
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`other reasons, Defendant acted with discretionary authority or control to deny the payment and to
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`manage the administration of the employee benefit plan at issue as described above.
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`36.
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`Here, Defendant breached its fiduciary duties by: (1) failing to issue an Adverse
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`Benefit Determination in accordance with the requirements of ERISA and applicable regulations;
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`(2) participating knowingly in, or knowingly undertaking to conceal, an act or omission of such
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`other fiduciary, knowing such act or omission is a breach; (3) failing to make reasonable efforts
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`under the circumstances to remedy the breach of such other fiduciary; and (4) wrongfully
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`withholding money belonging to Plaintiff.
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`WHEREFORE, Plaintiff demands judgment against Defendant as follows:
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`CLAIM FOR RELIEF
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`A.
`B.
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`C.
`D.
`E.
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`For an Order directing Defendant to pay Plaintiff $105,173.34;
`For an Order directing Defendant to pay Plaintiff all benefits Patient would be
`entitled to under her applicable insurance plan administered by Defendant;
`For compensatory damages and interest;
`For attorney’s fees and costs of suit; and
`For such other and further relief as the Court may deem just and equitable.
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`Dated: New York, NY
`April 28, 2022
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`By:
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`HALKOVICH LAW, LLC
`Attorneys for Plaintiff
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`/s/ Michael Gottlieb__
`Michael Gottlieb
`266 Harristown Road, Suite 302
`Glen Rock, NJ 07452
`(551) 226-7473
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