Abercrombie v. Aetna Health, Inc.
704 F. App'x 728
10th Cir.2017Background
- ~80 Colorado-licensed chiropractors (Providers) sued health insurers (Carriers) alleging unequal reimbursement in violation of Colo. Rev. Stat. § 10-16-104(7)(a)(I)(A) (the Statute), repealed in 2013.
- The Statute (as enacted and later amended) required carriers not to deny reimbursement when a policy provided reimbursement for a service lawfully performed by licensed practitioners and required the same fee schedule for "substantially identical" services across professions.
- Providers argued the Statute required carriers to reimburse providers (not just insureds) equally when they performed substantially identical services.
- Carriers moved to dismiss under Fed. R. Civ. P. 12(b)(6), arguing the Statute governed reimbursement to policyholders for covered benefits under insurance policies, not direct payments to providers.
- The district court dismissed the complaint for failure to state a plausible claim; the Tenth Circuit affirmed, agreeing the Statute’s plain language and context indicate it governs policyholder reimbursement, not provider–carrier contracts.
- A dissent argued the statute must be read as a whole (including a 1987 subsection listing licensed persons), which unambiguously protects licensed providers’ reimbursement rights and would require reversal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Meaning of § 10-16-104(7)(a)(I)(A): who is entitled to reimbursement? | Statute requires carriers to reimburse providers directly at same rates for substantially identical services. | Statute requires carriers to reimburse insured policyholders for covered benefits; it governs policies, not provider–carrier payments. | Court held the Statute governs policyholder reimbursement under insurance policies, not direct provider reimbursement. |
| Whether Providers pleaded a plausible claim under Rule 12(b)(6) | Allegations that carriers reimbursed chiropractors less than other providers states a claim under the Statute. | Complaint fails because the Statute’s text and structure refer to insurance policies and insureds, so no plausible claim. | Dismissal affirmed for failure to state a plausible claim. |
| Whether amendment of the complaint should be permitted | Providers sought leave to amend to supplement record and address issues (generally). | Carriers argued amendment basis was not adequately identified and would be futile. | Court refused leave: Providers gave inadequate notice of proposed amendments and failed to show amendment would not be futile. |
| Whether court should consider later 1987 amendment or other overlooked statutory text | (Implied) Providers did not rely on the 1987 amendment; they focused on 1973 text/legislative history. | Carriers noted Providers never relied on the 1987 amendment; court should decide based on presented arguments. | Majority declined to consider the 1987 amendment (not argued); dissent viewed the amendment as clarifying and would have reversed. |
Key Cases Cited
- Smith v. United States, 561 F.3d 1090 (10th Cir. 2009) (Rule 12(b)(6) review standard explained)
- Moore v. Guthrie, 438 F.3d 1036 (10th Cir. 2006) (pleaded facts accepted as true on 12(b)(6))
- Martinez v. Cont’l Enters., 730 P.2d 308 (Colo. 1986) (statutory titles may inform construction but are not dispositive)
- Calderon v. Kan. Dep’t of Soc. & Rehab. Servs., 181 F.3d 1180 (10th Cir. 1999) (requirements for adequate notice of proposed amendment)
- United States v. Vallery, 437 F.3d 626 (7th Cir. 2006) (considering statutory language not relied on by parties)
- Colby v. Herrick, 849 F.3d 1273 (10th Cir. 2017) (de novo review of statutory interpretation)