USCA11 Case: 20-11511 Date Filed: 10/22/2020 Page: 1 of 12
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`IN THE UNITED STATES COURT OF APPEALS
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`FOR THE ELEVENTH CIRCUIT
`________________________
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`No. 20-11511
`Non-Argument Calendar
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`D.C. Docket No. 1:18-cv-03414-MLB
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`Plaintiffs-Appellants,
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`versus
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`AMERICAN COLLEGE OF EMERGENCY PHYSICIANS,
`MEDICAL ASSOCIATION OF GEORGIA,
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`BLUE CROSS AND BLUE SHIELD OF GEORGIA, et al.,
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`________________________
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`Appeal from the United States District Court
`for the Northern District of Georgia
`________________________
`(October 22, 2020)
`Before MARTIN, GRANT, and LUCK, Circuit Judges.
`PER CURIAM:
`The American College of Emergency Physicians (ACEP) and the Medical
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`Defendants-Appellees.
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`Association of Georgia (MAG) appeal the district court’s dismissal of their
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`[DO NOT PUBLISH]
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`IN THE UNITED STATES COURT OF APPEALS
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`FOR THE ELEVENTH CIRCUIT
`________________________
`
`No. 20-11511
`Non-Argument Calendar
`________________________
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`D.C. Docket No. 1:18-cv-03414-MLB
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`Plaintiffs-Appellants,
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`versus
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`AMERICAN COLLEGE OF EMERGENCY PHYSICIANS,
`MEDICAL ASSOCIATION OF GEORGIA,
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`BLUE CROSS AND BLUE SHIELD OF GEORGIA, et al.,
`
`
`________________________
`
`Appeal from the United States District Court
`for the Northern District of Georgia
`________________________
`(October 22, 2020)
`Before MARTIN, GRANT, and LUCK, Circuit Judges.
`PER CURIAM:
`The American College of Emergency Physicians (ACEP) and the Medical
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`Defendants-Appellees.
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`Association of Georgia (MAG) appeal the district court’s dismissal of their
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`USCA11 Case: 20-11511 Date Filed: 10/22/2020 Page: 2 of 12
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`amended complaint against Blue Cross and Blue Shield of Georgia, Inc.; Blue
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`Cross Blue Shield Healthcare Plan of Georgia, Inc.; and Anthem Insurance
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`Companies, Inc.1 for failure to state a claim and lack of standing. See Fed. R. Civ.
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`P. 12(b)(1); 12(b)(6). After careful review, we reverse the district court’s
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`judgment and reinstate ACEP and MAG’s claims brought under the Employee
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`Retirement Income Security Act (ERISA) and the Patient Protection and
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`Affordable Care Act (ACA) against Blue Cross Blue Shield.
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`I.
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`ACEP and MAG are organizations dedicated to promoting the “rights of
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`their physician members, and patients alike, for the delivery of the highest quality
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`of care.” ACEP represents over 38,000 emergency physicians, medicine residents,
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`and medical students. MAG is a non-profit organization that “works with
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`physicians, hospitals, insurers, and legislators in an effort to reform our health care
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`system.” The physicians who belong to ACEP and MAG require their patients,
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`including those insured by Blue Cross Blue Shield, to assign their health insurance
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`benefits to the physicians. These assignments include the right to “payment for
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`emergency care and treatment” and the “rights to appeal denials for emergency
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`department claims.”
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`1 We refer to Defendants collectively as “Blue Cross Blue Shield.”
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`2
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`USCA11 Case: 20-11511 Date Filed: 10/22/2020 Page: 3 of 12
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`As set out in the ACA, a “prudent layperson” standard applies to all federal
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`health-care plans, all insurance plans governed by ERISA, and qualified health
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`insurance plans in state-operated health insurance exchanges. This standard
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`requires health plans to cover health services provided by an emergency
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`department whenever a patient has an “emergency medical condition.” An
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`emergency medical condition is defined as “a medical condition manifesting itself
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`by acute symptoms of sufficient severity (including severe pain) such that a
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`prudent layperson, who possesses an average knowledge of health and medicine,
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`could reasonably expect the absence of immediate medical attention” to result in
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`serious negative health outcomes.2 42 U.S.C. § 300gg-19a(b)(2)(A). It is notable
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`that this standard does not look to the ultimate diagnosis that the patient receives.
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`The only relevant considerations are the presenting symptoms and whether a
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`prudent layperson would think that emergency medical attention is necessary based
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`on those symptoms.
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`In their complaint, MAG and ACEP allege that Blue Cross Blue Shield
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`violated the prudent layperson standard when it implemented a new emergency
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`department visit review process (the “ED review”) in 2017. That year Defendants
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`sent letters to their insureds in Georgia cautioning that they should only go to the
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`2 Another statutory provision clarifies what types of negative health outcomes. See 42
`U.S.C. § 1395dd(e)(1)(A).
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`3
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`USCA11 Case: 20-11511 Date Filed: 10/22/2020 Page: 4 of 12
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`emergency room for emergencies, otherwise their insurance would not cover their
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`emergency room visits. Blue Cross Blue Shield also gave presentations
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`publicizing their new ED review policy. During at least one of these presentations,
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`Defendants confirmed that their new ED review process was “based on diagnosis
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`codes in addition to medical records.” The reviews are performed by a physician.
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`Blue Cross Blue Shield then began retrospectively denying payments to healthcare
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`providers by reclassifying certain emergency department visits as “non-emergent”
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`using the diagnostic codes that were assigned to the visits. In the second half of
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`2017, Blue Cross Blue Shield reviewed 10,000 claims (out of 51,000 received
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`claims) for ER visits in Georgia and denied 3,500 of them. At various times Blue
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`Cross Blue Shield has claimed that its ED review process appropriately applies the
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`prudent layperson standard.
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`In October 2018 MAG and ACEP filed the First Amended Complaint (the
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`operative complaint here) against Defendants. The complaint alleged the ED
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`review process violated the prudent layperson standard and sought declaratory and
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`injunctive relief for violations of the ACA and ERISA.3 Blue Cross Blue Shield
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`filed a pre-answer motion to dismiss, asserting that MAG and ACEP failed to
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`3 ACEP and MAG do not contest the dismissal of their claims under the Emergency
`Medical Treatment and Active Labor Act (EMTALA) and state and federal group health
`regulations.
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`4
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`USCA11 Case: 20-11511 Date Filed: 10/22/2020 Page: 5 of 12
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`plead sufficient facts to support their allegation and that Plaintiffs lacked standing
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`to bring these claims.
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`The district court granted Defendants’ motion and dismissed the complaint
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`with prejudice. The district court found ACEP and MAG’s pleadings insufficient
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`because they did not identify a specific instance in which “Defendants’ ED Review
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`improperly applies the prudent layperson standard.” The district court also relied
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`upon Defendants’ claims that their ED review process did not violate the prudent
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`layperson standard. The district court found that the members of ACEP and MAG
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`lacked standing because the assignment of insurance plan benefits to them did not
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`give them standing to seek equitable relief and because Plaintiffs failed to allege
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`how the ED review process harmed their members.
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`Plaintiffs timely appealed.
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`II.
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`“We review de novo the district court’s grant of a Rule 12(b)(6) motion
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`to dismiss for failure to state a claim, accepting the complaint’s allegations as true
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`and construing them in the light most favorable to the plaintiff.” Chaparro v.
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`Carnival Corp., 693 F.3d 1333, 1335 (11th Cir. 2012) (per curiam) (quotation
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`marks omitted). To prevent dismissal under Rule 12(b)(6), a plaintiff must allege
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`sufficient facts to state a claim for relief that is “plausible on its face.” Bell Atl.
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`Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007). Claims are
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`5
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`plausible when the plaintiff pleads facts that allow the court “to draw the
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`reasonable inference that the defendant is liable for the misconduct alleged.”
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`Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009). A pleading
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`must offer more than “labels and conclusions or a formulaic recitation of the
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`elements of a cause of action,” but “detailed factual allegations” are not needed.
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`Id. at 678, 129 S. Ct. at 1949 (quotation marks omitted).
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`We review de novo the district court’s grant of a Rule 12(b)(1) motion to
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`dismiss for lack of subject matter jurisdiction. Stalley ex rel. United States v.
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`Orlando Reg’l Healthcare Sys., Inc., 524 F.3d 1229, 1232 (11th Cir. 2008) (per
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`curiam). The plaintiff need only have “sufficiently alleged a basis of subject
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`matter jurisdiction, and the allegations in his complaint are taken as true.” Id.
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`(quotation marks omitted).
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`III.
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`The district court erred in dismissing ACEP and MAG’s complaint for
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`failure to state a claim. The district court faulted Plaintiffs for failing to identify
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`specific instances in which “Defendants’ ED Review improperly applies the
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`prudent layperson standard.” But ACEP and MAG are not challenging individual
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`denials. They challenge the ED review policy writ large. Plaintiffs allege the ED
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`review process was “based on diagnosis codes in addition to medical records.”
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`The ED review is also conducted by a physician, not a layperson. The prudent
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`USCA11 Case: 20-11511 Date Filed: 10/22/2020 Page: 7 of 12
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`layperson standard asks what someone with “average knowledge of health and
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`medicine” would think is an emergency based on the severity of their “acute
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`symptoms.” 42 U.S.C. § 300gg-19a(b)(2)(A). A physician’s professional
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`assessment of symptoms is irrelevant. The regulations do not call upon a medical
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`doctor to put aside her years of training to evaluate what someone without any
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`such training would view as a medical emergency. The diagnosis that the patient
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`ultimately receives is irrelevant. It is plausible that an ED review process
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`incorporating both of those elements—a physician assessment and patient
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`diagnosis—violates the prudent layperson standard. ACEP and MAG have thus
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`alleged facts about the ED review process as a whole that allow a court to “draw
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`the reasonable inference” that Defendants violated the standard. See Iqbal, 556
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`U.S. at 678, 129 S. Ct. at 1949.
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`The district court also gave great weight to ACEP and MAG’s
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`acknowledgement of Blue Cross Blue Shield’s claim that it is complying with the
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`prudent layperson standard. Defendants’ conclusory statements about their legal
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`compliance has nothing to do with whether ACEP and MAG have plausibly
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`alleged that Blue Cross Blue Shield violated the law. Because ACEP and MAG
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`USCA11 Case: 20-11511 Date Filed: 10/22/2020 Page: 8 of 12
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`have otherwise met their burden, this assertion is no basis for dismissing their
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`claims.4
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`IV.
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` The district court also erred when it found that ACEP and MAG lacked
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`standing to bring their claims under ERISA and the ACA. “An organization has
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`standing to enforce the rights of its members when its members would otherwise
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`have standing to sue in their own right, the interests at stake are germane to the
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`organization’s purpose, and neither the claim asserted nor the relief requested
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`requires the participation of individual members in the lawsuit.” Fla. State
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`Conference of N.A.A.C.P. v. Browning, 522 F.3d 1153, 1160 (11th Cir. 2008)
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`(quotation marks omitted).5 When an organization seeks injunctive relief,
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`“individual participation of the organization’s members is not normally necessary.”
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`Id. (quotation marks omitted).6
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`4 Blue Cross Blue Shield also argues that Plaintiffs failed to contest the district court’s
`dismissal of their claims for litigation expenses under ERISA and for injunctive relief under the
`ACA and ERISA. But the district court made no such holding. It dismissed those claims solely
`on the basis that Plaintiffs failed to state a claim under the ACA and ERISA. The district court
`did not provide alternative, independent grounds for dismissing those claims and ACEP and
`MAG challenge any assertion that they failed to state a claim for relief under ERISA and the
`ACA. Thus ACEP and MAG did not abandon their claims for injunctive relief and litigation
`expenses.
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` 5
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` No one disputes that the interests at stake here are germane to ACEP and MAG’s
`purposes.
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` 6
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` Plaintiffs also pled facts related to their injury as organizations and argued that in
`addition to associational standing they also had organizational standing based on a diversion of
`resources theory. The district court did not consider this argument or those facts at all.
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`USCA11 Case: 20-11511 Date Filed: 10/22/2020 Page: 9 of 12
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` The district court first found that Plaintiffs’ members did not themselves
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`have standing to sue. “[I]t is well-established in this and most other circuits that a
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`healthcare provider may acquire derivative standing to sue under ERISA by
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`obtaining a written assignment from a ‘participant’ or ‘beneficiary’ of his right to
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`payment of medical benefits.” Conn. State Dental Ass’n v. Anthem Health Plans,
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`Inc., 591 F.3d 1337, 1347 (11th Cir. 2009). Here ACEP and MAG allege that Blue
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`Cross Blue Shield’s insureds have assigned their benefits to ACEP and MAG’s
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`member physicians. Thus their members have acquired derivative standing to sue
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`under ERISA.
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`The district court determined that the assignment of the right to payment and
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`to appeal denials did not include the right to seek equitable relief, which is the only
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`type of relief that ACEP and MAG seek here. In so finding the district court
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`ignored precedent to the contrary. In Connecticut State Dental, this Court
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`concluded that an assignment of the right to payment of medical benefits under a
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`health insurance plan allowed a dentists’ professional organization to sue a plan
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`provider for declaratory and injunctive relief. Conn. State Dental, 591 F.3d at
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`1347. In Cagle v. Bruner, 112 F.3d 1510 (11th Cir. 1997), we held that a hospital
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`had standing to seek declaratory relief against a health benefit fund because the
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`Nonetheless, because we find that Plaintiffs sufficiently pled associational standing, we need not
`reach that issue.
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`USCA11 Case: 20-11511 Date Filed: 10/22/2020 Page: 10 of 12
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`beneficiaries assigned the hospital their “right to receive payment of benefits.” Id.
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`at 1515. The assignment of the right to payment includes the right to seek
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`equitable relief.7
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`Blue Cross Blue Shield argues on appeal that the rule from Connecticut
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`State Dental and Cagle only applies to claims under 29 U.S.C. § 1132(a)(1)(B), not
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`claims brought, as ACEP and MAG did here, under 29 U.S.C. § 1132(a)(3). Not
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`so. As the Court stated in Cagle, its holding that an assignment of benefits confers
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`derivative standing was based on its assessment that “neither § 1132(a) nor any
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`other ERISA provision prevents derivative standing based upon an assignment of
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`rights from an entity listed in that subsection.” Cagle, 112 F.3d at 1515. The
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`Court’s holding applies not only to § 1132(a) in its entirety, but also to the whole
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`of ERISA. ACEP and MAG brought their claims under § 1132(a) and thus have
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`derivative standing to seek equitable relief from Defendants.
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`The district court further faulted Plaintiffs for failing to “identify at least one
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`member who has been or will be imminently injured.” But ACEP and MAG
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`identified a whole category of its members who are harmed and will be harmed by
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`Defendants’ new policy: all members whose patients are insured by Defendants.8
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`7 Blue Cross Blue Shield points to unpublished cases they say suggest otherwise. Those
`cases are not binding on our Court.
`8 To the extent that the district court’s criticism is that ACEP and MAG failed to name
`which specific members are harmed, we note that for prospective equitable relief, organizational
`plaintiffs “need not ‘name names’ to establish standing.” Ga. Republican Party v. S.E.C., 888
`F.3d 1198, 1204 (11th Cir. 2018). An organizational plaintiff seeking retrospective relief may be
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`USCA11 Case: 20-11511 Date Filed: 10/22/2020 Page: 11 of 12
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`The district court also found that ACEP and MAG failed to allege how their
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`members were harmed by the ED review policy. To the contrary, ACEP and MAG
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`alleged that the new ED review policy harms their members because it resulted in
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`and will continue to result in “retrospective denials of payment for emergency
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`department care.” Their doctor members are harmed because they are not being
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`paid. Thus ACEP’s members “would otherwise have standing to sue in their own
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`right.” See Fla. State Conference of N.A.A.C.P., 522 F.3d at 1160 (quotation
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`marks omitted).
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`Blue Cross Blue Shield also argues here that ACEP failed to establish
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`associational standing because the requested injunctive and declaratory relief
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`would require individualized determinations about whether each insured has
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`assigned their benefits; whether each plan is governed by the relevant statutes; and
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`whether each denial of a claim for emergency services violated the prudent
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`layperson standard. But again, ACEP and MAG are not challenging individual
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`denials of claims. Instead they allege that the ED review policy as a whole is
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`illegal. Assessing their challenge to the policy does not require individualized
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`determinations as to each denial. Neither would crafting an injunction halting
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`required to list at least one name, but only “after some discovery.” Fla. State Conference of
`N.A.A.C.P., 522 F.3d at 1160. In other words, requiring specific names at the motion to dismiss
`stage is inappropriate.
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`USCA11 Case: 20-11511 Date Filed: 10/22/2020 Page: 12 of 12
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`implementation of the policy or a declaration that the policy violates the prudent
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`layperson standard require individualized assessments.
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`For these reasons, Plaintiffs have associational standing.
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`REVERSED AND REMANDED.
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`12
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