CARIS MPI, INCORPORATED, doing business as CARIS LIFE SCIENCES v. UNITEDHEALTHCARE, INCORPORATED; UNITED HEALTHCARE SERVICES, INCORPORATED; UNITEDHEALTHCARE COMMUNITY PLAN OF TEXAS, L.L.C.; UNITEDHEALTHCARE BENEFITS OF TEXAS, INCORPORATED; OPTUM INCORPORATED
No. 23-10901
United States Court of Appeals for the Fifth Circuit
July 16, 2024
Before CLEMENT, ENGELHARDT, and WILSON, Circuit Judges. CORY T. WILSON, Circuit Judge:
Caris MPI, Inc. (Caris) sued UnitedHealthcare, Inc. (United) in Texas state court, alleging various state law claims. United removed the case, asserting federal officer jurisdiction under
We agree that federal officer jurisdiction exists in this case. But the district court erred in dismissing Caris‘s claims because “the administrative review process attendant to [Medicare] Part C does not extend to claims in which an enrollee has absolutely no interest,” such that there are no administrative remedies for Caris to exhaust. RenCare, Ltd. v. Humana Health Plan of Tex., Inc., 395 F.3d 555, 559 (5th Cir. 2004). Accordingly, we affirm in part, reverse in part, and remand for further proceedings.
I.
Caris is a private healthcare provider that specializes in cancer diagnostic testing. United is a private insurance company that contracts with the Centers for Medicare and Medicaid Services (CMS) to provide health insurance through the Medicare Advantage program. This case arises from United‘s attempt to recoup money it paid to Caris for services provided to United‘s Medicare Advantage enrollees. We briefly explain the relationship between providers, insurance companies, and CMS under Medicare Advantage and then detail the specific background of this case.
A.
Congress created the Medicare Advantage program, also known as Medicare Part C, as an alternative to traditional Medicare. See U.S. DEP‘T OF HEALTH & HUM. SERVS., UNDERSTANDING MEDICARE ADVANTAGE PLANS 1 (2023), medicare.gov/Pubs/pdf/12026-Understanding-Medicare-Advantage-Plans.pdf. That program gives enrollees the choice to obtain benefits through private insurance companies rather than from the government. See id at 1-2. Private companies that insure Medicare Advantage enrollees are called Medicare Advantage Organizations (MAOs).
MAOs are empowered to determine “whether an [enrollee] is entitled to receive a health service under [Medicare] and the amount (if any) that the individual is required to pay with respect to such service.” Id.
MAOs “must provide meaningful procedures” for resolving disputes concerning organization determinations.
MAOs engage healthcare providers to provide medical services enrollees need.
Once an MAO determines that an enrollee is entitled to receive a health service under his or her Medicare Advantage plan and the enrollee has met his or her cost-sharing obligations (i.e., deductibles or co-pays), the Medicare Act limits the enrollee‘s liability for further payments. See id.
Caris has provided cancer diagnostic services to United‘s Medicare Advantage customers for over ten years. Caris and United had no written contract during that period. Rather, they interacted “according to their longstanding course of dealings, representations . . . , and implied contracts.”2 Summarized, Caris obtained preauthorization from United before providing its services; based on that preauthorization, Caris provided patients the requested services; Caris then sent United requests for payment using agreed-upon billing codes; and United paid the claims.
In 2020, United audited Caris‘s past claims and determined that Caris had used incorrect billing codes between February 2016 and July 2018, resulting in overpayments of $1,276,711.29. United began recouping the purported overpayments by offsetting them against new payment claims from Caris. Caris timely followed United‘s internal process to challenge United‘s recoupment. After United rejected Caris‘s internal appeals, Caris filed suit against United in Texas state court. Caris alleged state law claims including breach of implied contract, unjust enrichment, conversion, and estoppel.
United then filed a notice of removal invoking federal officer jurisdiction under
After an evidentiary hearing, the district court denied Caris‘s motion to remand, concluding that federal officer jurisdiction existed. It then dismissed Caris‘s claims without prejudice, finding that Caris failed to exhaust its administrative remedies as required by the Medicare Act. Caris timely appealed.
II.
We review a district court‘s denial of a motion to remand de novo. Allen v. Walmart Stores, L.L.C., 907 F.3d 170, 182 (5th Cir. 2018). Likewise, we review a dismissal for lack of subject matter jurisdiction de novo. Gilbert v. Donahoe, 751 F.3d 303, 306–07 (5th Cir. 2014).
III.
We first discuss the district court‘s denial of Caris‘s motion to remand and then address its dismissal of Caris‘s claims for failure to exhaust.
A.
“[F]ederal officer removal under
To remove a case under
1.
United asserts that it raised two colorable federal defenses in its notice of removal: Caris failed to exhaust its administrative remedies, and Caris‘s state law claims are preempted by the Medicare Act.3 “To be ‘colorable’ [an] asserted federal defense need not be ‘clearly sustainable.‘” Latiolais, 951 F.3d at 296 (quoting Jefferson County v. Acker, 527 U.S. 423, 432 (1999)). In other words, a colorable federal defense does not require the party asserting federal officer removal jurisdiction “to win [its] case before [it] can have [the case] removed.” Id. (quoting Acker, 527 U.S. at 431) (internal quotation marks omitted). “Instead, an asserted federal defense is colorable unless it is ‘immaterial and made solely for the purpose of obtaining jurisdiction’ or ‘wholly insubstantial and frivolous.‘” Id. at 297 (quoting Zeringue v. Crane Co., 846 F.3d 785, 790 (5th Cir. 2017)).
According to Caris, if the district court “erred as a matter of law in holding that Caris was required to exhaust its claims[,] [i]t follows that [United] lack[s] a colorable exhaustion defense.” Not so. That United‘s exhaustion defense fails on the merits, as we discuss infra, does not mean its defense was not colorable when asserted. In pressing this defense, United relied on this court‘s unpublished opinion in Trinity Home Dialysis, Inc. v. WellMed Networks, Inc., No. 22-10414, 2023 WL 2573914, at *5 (5th Cir. Mar. 20, 2023), which held that a similarly situated provider was required to exhaust administrative remedies before suing an MAO for a payment dispute. As we will explain, Trinity is distinguishable from this case, but United‘s reliance on Trinity was not “wholly insubstantial or frivolous.” See Latiolais, 951 F.3d at 297. And other courts have held that providers like Caris must first exhaust administrative remedies before filing suit, e.g., Tenet Healthsystem GB, Inc. v. Care Improvement Plus S. Cent. Ins. Co., 875 F.3d 584 (11th Cir. 2017)—including the district court here, which, after all, ruled in United‘s favor. Thus, we cannot say that United‘s exhaustion defense was “immaterial and made solely for the purpose of obtaining jurisdiction.” Latiolais, 951 F.3d at 297. Though United‘s defense is ultimately unavailing, it was colorable for purposes of federal officer removal. See id.
regulations inconsistent with the enumerated standards“); Prime Healthcare Servs. v. Humana Ins. Co., 298 F. Supp. 3d 1316, 1319–22 (C.D. Cal. 2018) (finding the plaintiff‘s quasi-contract claims to be preempted). This court has yet to rule on the issue.
Caris cites no contrary caselaw. Nevertheless, it argues that United fails to carry its burden for its affirmative defense. But that is not for us to decide today. See Latiolais, 951 F.3d at 297 n.10 (cautioning courts to “avoid premature merits determination . . . . even if a federal defense makes sharp demands” (internal quotation marks omitted)). At the very least, United‘s preemption defense is “plausible” and therefore colorable as required by
2.
Next, we consider whether United has acted pursuant to a federal officer‘s direction.5 Id. at 296. “We construe the ‘acting under’ requirement broadly.” Trinity, 2023 WL 2573914, at *3 (citing Watson v. Philip Morris Cos., Inc., 551 U.S. 142, 147 (2007)). A removing defendant need not prove that its “conduct was precisely dictated by a federal officer‘s directive.” St. Charles, 990 F.3d at 454. “Instead, the ‘acting under’ inquiry examines the relationship between the removing party and the relevant federal officer . . . .” Id. at 455. A relationship is sufficiently close if the federal officer exercises “subjection, guidance, or control” over the removing party and that party is assisting or helping carry out a federal officer‘s duties, as opposed merely to “complying
the Government itself would have had to perform,” and that relationship involves “detailed regulation, monitoring, or supervision,” the private contractor is “acting under” a federal officer‘s direction. See id. at 153–54.
As discussed, CMS contracts with United to effectuate Medicare coverage for program enrollees. In that regard, United is helping CMS carry out its duties by providing insurance coverage that CMS would have otherwise been required to provide in the absence of its contract with United. United is also subject to “detailed regulation, monitoring, [and] supervision” through its contract with CMS. See id. at 153. As an example, United‘s contract with CMS requires United to “develop, compile, evaluate, and report to CMS” data regarding United‘s fiscal soundness and “all information that is necessary for CMS to administer and evaluate” the Medicare Advantage program. Relevant to this case, United is required to maintain detailed accounting records regarding services provided to enrollees and allows CMS to audit those records at any time during that period. Beyond those contractual obligations, the Medicare Act subjects MAOs like United to extensive oversight. See
3.
Finally, we address whether United‘s payment recoupment is connected or associated with an act made pursuant to CMS‘s direction. Traditionally, to invoke federal officer jurisdiction, the removing party was required to show a “causal connection” between the defendant‘s action taken pursuant to the Government‘s direction and the plaintiff‘s injury. See, e.g., Savoie, 817 F.3d at 462. However, in Latiolais, this court rejected the “causal nexus” test and embraced the broader “connected or associated” test set forth by the Removal Clarification Act. See Latiolais, 951 F.3d at 291–96; cf. St. Charles, 990 F.3d at 454 (recognizing that “though the ‘acting under’ and ‘connection’ elements may often ride in tandem toward the same result, they are distinct“).
Though this court has yet precisely to delimit the contours of the less stringent “connected or associated” test, see Plaquemines Parish v. Chevron USA, Inc., 84 F.4th 362, 375 (5th Cir. 2023), United easily meets the Latiolais standard. United‘s contract with CMS allows CMS periodically to audit United‘s records regarding services provided to enrollees. At the evidentiary hearing conducted by the district court, United testified that its contract with CMS requires United to “take action” if it finds improper payments or overpayments during those audits. Indeed, United stated that the purpose of its audit of Caris was to “ensure that it complied with the CMS guidelines that [United] was obligated to follow.” Even Caris‘s expert admitted that United‘s actions in conducting the audit were “governed by the manuals, the procedures, the guidelines, and the regulations that have been promulgated by CMS.” This evidence, which Caris does not dispute, clearly shows United‘s recoupment of payments was “connected or associated” with its obligations to CMS under their contract.
To recap: Because United established all four elements of federal officer jurisdiction under
B.
We reach a different conclusion regarding the district court‘s dismissing Caris‘s claims for failure to exhaust. Relying on this court‘s decision in Trinity, the district court held that Caris was required to exhaust administrative remedies because United‘s recoupment of prior payments was an organization determination. It distinguished RenCare because, unlike the provider in that case, Caris nowhere waived its right to seek payment from enrollees via a written contract. Caris contends that the district court misinterpreted Trinity and RenCare. According to Caris, under RenCare, the dispositive question is not whether the parties traveled under a written contract, but whether an enrollee has an interest in the dispute. We agree with Caris.
Like this case, RenCare involved a payment dispute between an MAO, Humana, and a healthcare provider, RenCare. 395 F.3d at 556–57. Unlike this case, Humana and RenCare‘s relationship was governed by a written contract. See id. at 558 (referencing the “parties’ privately-agreed-to payment plan“). After Humana and RenCare “became embroiled in a dispute over reimbursement,” RenCare sued Humana in Texas state court for breach of contract, among other state law claims. Id. at 557. Humana removed the case, asserting federal question jurisdiction under
Reversing the district court, this court made two distinct holdings. First, it held that RenCare‘s claims did not arise under the Medicare Act because the claims were not “inextricably intertwined” with a claim for Medicare benefits. See id. at 557-59 (citing Heckler, 466 U.S. at 602). Rather, it found that “[a]t bottom, RenCare‘s claims [were] claims for payment pursuant to a contract between private parties.” Id. at 559. Second, it held
that “the administrative review process attendant to Part C [i.e., Medicare Advantage] does not extend to claims in which an enrollee has absolutely no interest.” Id. The panel explained:
As is evident from the regulations, the administrative review process focuses on enrollees, not health care providers, and is designed to protect enrollees’ rights to Medicare benefits. . . . Humana‘s failure to pay RenCare is not an organization determination subject to the mandatory exhaustion of administrative remedies. No enrollee has requested an organization determination or appeal. No enrollee has been denied covered service or been required to pay for a service. Rather, the [Medicare Advantage] enrollees in this case bear no financial risk inasmuch as they have already received the services for which RenCare seeks reimbursement. In fact, there is a complete absence of [Medicare Advantage] beneficiary interest in this dispute. The only interest at issue is RenCare‘s interest in receiving payment under its contract with Humana.
Id. at 559-60.
RenCare‘s first holding was premised on the written contract between RenCare and
By contrast, RenCare‘s enrollee-interest analysis did not turn on the existence of a contract, and this second holding is dispositive as to whether Caris was required to exhaust administrative remedies before suing United.
Here, as there, “[n]o enrollee has requested an organization determination or appeal“; “[n]o enrollee has been denied [a] covered service or been required to pay for a service“; and all enrollees have already received the services for which United seeks recoupment. See RenCare, 395 F.3d at 559–60. Regardless of whether Caris is a contract or non-contract provider, it is prohibited from seeking additional payments from enrollees if it loses this case. See
United responds that any reliance on RenCare is misplaced because RenCare involved a dispute in which an MAO and a provider had an “express written agreement.” But as just discussed, in determining whether RenCare was required to exhaust administrative remedies, this court did not focus on whether the parties had a written contract; the focus was on whether any enrollee had an interest in the dispute. See id. at 559–60.
United points to Trinity for support, but that is problematic for two reasons. First, Trinity is distinguishable from this case because it involved an MAO‘s ongoing refusal to reimburse a healthcare provider for services after the MAO determined that the services did not qualify for reimbursement under the Medicare Act. See 2023 WL 2573914, at *1. There is no question that an MAO‘s “refusal to provide or pay for services . . . that the enrollee believes should be furnished or arranged for by the MA[O]” is an organization determination that is subject to exhaustion.
desired service. Clearly, enrollees have a direct interest in such a dispute. By contrast, United began recouping payments made to Caris between February 2016 and July 2018 for services already preapproved and performed. United fails to show how a billing dispute between an MAO and provider for past services rendered has a direct impact on enrollees.
Second, even if Trinity were not distinguishable, we are bound by this court‘s decision in RenCare. As an unpublished opinion, Trinity is not binding precedent; RenCare, a published opinion, is. Gate Guard Servs., L.P. v. Perez, 792 F.3d 554, 560 n.3 (5th Cir. 2015) (citing 5TH CIR. R. 47.5). Further, “[w]hen panel opinions appear to conflict, we are bound to follow the earlier opinion.” H&D Tire and Automotive-Hardware, Inc. v. Pitney Bowes Inc., 227 F.3d 326, 330 (5th Cir. 2000). Thus, even assuming tension between RenCare and Trinity, RenCare remains our controlling case.
Lastly, United argues that the relevant statutory and regulatory provisions demonstrate that Caris is acting as a party to an organization determination and therefore must exhaust administrative remedies. Specifically, United asserts that Caris is an “assignee” of enrollee claims, as defined by
of payments to Caris “is not an organization determination that [Caris] could appeal within the mandatory administrative review mechanism.” Id.
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*
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RenCare is clear: The administrative review process for Medicare Advantage claims set forth in the Medicare Act and its implementing regulations “focuses on enrollees, not health care providers.” Id. at 559. When there is a complete lack of enrollee interest in a payment dispute between an MAO and a provider, as in this case, there are no administrative remedies for the provider to exhaust. The district court therefore erred in dismissing Caris‘s claims for failure to do so.
IV.
For the foregoing reasons, we AFFIRM the district court‘s denial of Caris‘s remand motion. We REVERSE the district court‘s dismissal of Caris‘s claims for failure to exhaust and REMAND for proceedings consistent with this opinion.
AFFIRMED in part; REVERSED in part; REMANDED.