Moran v. Rush Prudential HMO, Inc.Moran v. Rush Prudential HMO, Inc.
- Reporters:
- Before:
- Flaum, Ripple, Williams
RIPPLE, Circuit Judge. Section 4-10 of Illinois’ Health Maintenance Organization Act (“the HMO Act“),
Debra Moran’s primary care physician recommended a specific surgery for her, but Rush Prudential HMO, Inc. (“Rush“), the service provider for Ms. Moran’s ERISA-governed medical benefits plan, denied coverage for that surgery. Rush offered instead to cover a lеss expensive surgery to be performed by a Rush-affiliated doctor. At her own expense, Ms. Moran underwent the
I
BACKGROUND
A.
Ms. Moran is covered by a medical benefits plan sponsored by her husband’s employer. The plan is governed by ERISA, and it is fully insured. Rush is the HMO provider for the plan. Two aspects of the plan are worth noting. First, the plan’s member certificate delegates to Rush “the broadest possible discretion” to interpret the terms of the plan and to determine which benefits the participants are entitled to receive. R.1-1, Ex.A. at 7. Second, the certificate provides that services that are not “medically necessary” will not be covered by the plan. Id. at 21.2
Starting in 1996, Ms. Moran began experiencing pain, numbness, loss of function, and decreased mobility in her right shoulder. Ms. Moran sought treatment for these symptoms from Dr. Arthur LaMarre, her primary care physician and a Rush-affiliated physician. At first Dr. LaMarre treated Ms. Moran through physiotherapy and other conservative therapies, but these efforts did not relieve her symptoms. While she was undergoing these conservative therapies, Ms. Moran obtained the name of Dr. Julia Terzis, an out-of-network surgeon in Virginia who specializes in microreconstructive surgery. After Rush denied Ms. Moran’s request for a out-of-network referral to consult with Dr. Terzis, Ms. Moran traveled on her own accord to Virginia to be examined by Dr. Terzis. Dr. Terzis diagnosed Ms. Moran with brachial plexopathy and thoracic outlet syndrome (“TOS“), a nerve compression syndrome caused by the compression of nerves in Ms. Moran’s brachial plexus.
Most nerve compression syndromes are mild and effectively treated with conservative physiotherapy, and surgery is not indicated unless more conservative measures fail to manage the symptoms. If surgery becomes necessary, the standard procedure for TOS involves decompression by way of first rib resection (the complete removal of the uppermost rib) or first rib resection with scaleneсtomy (the removal of the rib and the attached muscle). If necessary, a surgeon may use loupe magnification, in which the surgeon wears a goggle-like apparatus to magnify the immediate view, to conduct a neurolysis, which is removal of scar tissue surrounding the injured nerve. Dr. Terzis, however, performs a more complicated surgery for patients with Ms. Moran’s condition. Dr. Terzis’ surgery consists of rib resection, extensive scalenectomy, and, if indicated, microneurolysis of the lower roots of the brachial plexus under intraoperative microscopic magnification. Dr. Terzis concluded that Ms. Moran was a candidate for the more complicated microneurolysis surgery. She also indicated to Ms. Moran that she had successfully treated other patients with Ms. Moran’s condition.
After meeting with Dr. Terzis, Ms. Moran asked Dr. LaMarre to obtain approval from Rush for Dr. Terzis’ proposed surgery. Dr. LaMarre first hаd Ms. Moran see two Rush-affiliated thoracic surgeons, Dr. Raymond A. Dieter and Dr. William H. Warren. After examining Ms. Moran, both doctors confirmed Dr. Terzis’ diagnosis of TOS and recommended that Ms. Moran undergo the standard TOS surgery. Ms. Moran, however, was not impressed by the prognosis offered by these doctors, and she decided that she wanted to have Dr. Terzis perform her proposed surgery.
On October 14, 1997, Dr. LaMarre asked Rush to approve Dr. Terzis’ microneurolysis surgery for Ms. Moran. In his recommendation letter, Dr. LaMarre stated that, in his opinion, Ms. Moran would be “best served” by having Dr. Terzis’ procedure performed. R.45, Ex.5. Rush denied approval on the grounds that Dr. Terzis’ surgery was out of network. Ms. Moran appealed the administrator’s decision. In response to her appeal, Rush requested additional information from Dr. Dieter and Dr. Warren about Dr. Terzis’ proposed surgery and the need for microneurolysis. Both doctors reported that micrоneurolysis was unnecessary for Ms. Moran. After reviewing the reports of Dr. Dieter and Dr. Warren, and after conducting its own analysis of relevant medical literature, Rush affirmed its denial of coverage for Dr. Terzis’ microneurolysis surgery on the ground that the procedure was not “medically necessary” as defined by the plan.
The next month, in February 1998, Ms. Moran underwent Dr. Terzis’ microneurolysis surgery. The surgery took nearly 14 hours and, with post-operative care, cost $94,841.27. Ms. Moran paid for the surgery herself. Ms. Moran submitted a copy of the bill for her surgery to Rush, and she and Dr. Terzis also submittеd other materials related to the surgery. Rush treated these submissions as a renewed benefits claim, and it opened another investigation into whether Ms. Moran’s now-completed surgery should be covered.
As part of its investigation, Rush sought the opinions of additional experts, and it provided these experts with Ms. Moran’s medical records as well as information concerning Dr. Terzis’ microneurolysis surgery. The first two opinions obtained by Rush were from Dr. Gerald Harris and Dr. John C. Alexander. These doctors were skeptical of the need for microneurolysis in Ms. Moran’s case, but they admitted that they lacked expertise in the area. Rush next consulted with Dr. Susan E. MacKinnon, the Chief of Plastic and Reconstructive Surgery at Washington University School of Medicine in St. Louis. Dr. MacKinnon opined that Dr. Terzis’ microneurolysis was unnecessary.
C.
In January 1998, the month before she underwent surgery, Ms. Moran made a written demand to Rush for it to comply with sec. 4-10 of the HMO Act. Under the Act, HMOs are required to provide a mechanism for a review by an independent physician when the patient’s primary care physician and HMO disagree about the medical necessity of a treatment proposed by the primary care physician. See
The district court remanded the case to the state court. The court noted that preemption is generally a defense and that, under the well-pleaded complaint rule, an anticipated federal defense could not be the basis for removal. Nonetheless, the district court also noted that a “completely preempted” state law claim could be removed, but the court explained, in the ERISA context, only state law claims that conflicted with ERISA’s civil enforcement provisions were completely preempted by ERISA. In this case, the district court concluded, Ms. Moran’s request for specific performance was not a claim under ERISA’s civil enforcement provisions and therefore was not completely preempted. The district court left open the possibility that a claim for reimbursement under sec. 4-10 of the HMO Act, in contrast to a request to have the independent review performed, might be a claim for benefits that would be completely preempted by ERISA’s civil enforcement provisions.
D.
Upon remand, the stаte court ordered Rush to submit to the independent physician review mandated by the HMO Act. The state court reserved ruling on whether ERISA preempted the portion of sec. 4-10 that requires the HMO to cover the procedure in the event that the independent physician determines the procedure is
E.
Following the independent review by Dr. Dellon, Ms. Moran asked the state court to require Rush to reimburse her for the surgery. The state court requested that Ms. Moran amend her complaint to clarify the relief she was seeking. Ms. Moran then filed an amended complaint, the First Amended Complaint, seeking enforcement of sec. 4-10 of the HMO Act and reimbursement for the surgery in the amount of $94,841.27.
After Ms. Moran filed her First Amended Complaint, Rush removed the suit to federal court once again. This time, Rush argued that Ms. Moran’s suit was a claim for benefits that wаs completely preempted and that her claim, therefore, had to be made under ERISA’s civil enforcement provision, sec. 502(a),
Turning to the merits, the district court then addressed Rush’s contention that ERISA preempted sec. 4-10 of the HMO Act and that, therefore, its provisions did not cabin the discretion of the administrator. The court held that ERISA’s “saving clause” did not apply because sec. 4-10 did not meet one of the McCarran-Ferguson factors used to determine whether a law regulates insurance for purposеs of that clause. According to the district court, sec. 4-10 of the HMO Act did not transfer or spread policyholders’ risk.
Ms. Moran subsequently moved for reconsideration of the district court’s ruling. Ms. Moran argued that the district court should reconsider its previous decision in light of the Supreme Court’s opinion in UNUM Life Insurance Co. v. Ward, 526 U.S. 358 (1999). In Ward, the Supreme Court held that a state law need not satisfy all three McCarran-Ferguson factors in order for the law to fall within ERISA’s saving clause. See id. at 374. The district court denied Ms. Moran’s motion for reconsideration on the ground that, even if the saving clause saved sec. 4-10 from preemption, sec. 4-10 was preempted nonetheless because it fell within the “deemer clause” exception to the saving clause. Under the deemer clause, the district court held, ERISA preempted sec. 4-10 of the HMO Act “[b]ecause the Illinois HMO Act has the effect of directly regulating employee benefit plans rather than an insurance company.” R.53.
F.
Ms. Moran amended her complaint a second time in April 1999, ostensibly to
II
DISCUSSION
A.
A district court’s preemption ruling is a question of law that we review de novo. See Carpenters Local Union No. 26 v. United States Fidelity & Guar. Co., 215 F.3d 136, 139 (1st Cir. 2000); Burlington N. & Santa Fe Ry. v. Doyle, 186 F.3d 790, 794 (7th Cir. 1999). We also review de novo the propriety of the removal of a state action to federal court. See Tylka v. Gerber Prods. Co., 211 F.3d 445, 447 (7th Cir. 2000). Likewise, we review de novo a district court’s grant of summary judgment. See Anstett v. Eagle-Picher Indus., Inc., 203 F.3d 501, 503 (7th Cir. 2000). It is appropriate to grant summary judgment only when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
B.
A defendant may remove to federal court actions originally brought in a state court only when those actions fall within the federal court’s original jurisdiction, see
As we explained in Speciale v. Seybold, 147 F.3d 612 (7th Cir.), cert. denied, 525 U.S. 1017 (1998) “[t]he determination of jurisdiction on removal involving an ERISA issue is based upon the well-pleaded complaint rule, the ERISA ’complete preemption’ exception to that rule and the defense of ’conflict preemption’ under ERISA.” Id. at 614. Under the well-pleaded complaint rule, we look to the state court complaint and not to the defendant’s response to determine whether the plaintiff’s claim falls under federal question jurisdiction. See, e.g., Jass v. Prudential Health Care Plan, Inc., 88 F.3d 1482, 1486 (7th Cir. 1996). “It is long settled law that a cause of action arises under federal law only when the plaintiff’s well-pleaded complaint raises issues of federal law.” Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987). A defendant’s federal defense tо a claim arising under state law, therefore, “does not create federal jurisdiction and
There exists, however, an exception to the well-pleaded complaint rule for state law claims that have been “completely preempted” by Congress. See Speciale, 147 F.3d at 615. This so-called “complete preemption” doctrine really “is not a preemption doctrine but rather a federal jurisdiction doctrine.” Lister v. Stark, 890 F.2d 941, 943 n.1 (7th Cir. 1989). Even though a complaint may not mention a federal basis of jurisdiction, the complete preemption doctrine “permits ’recharacterization’ of a plaintiff’s state law claim as a federal claim so that removal is proper.” Speciale, 147 F.3d at 615 (quoting Lister, 890 F.2d at 943).
In Metropolitan Life, the Supreme Court held that the civil enforcement provision of ERISA, sec. 502(a), completely preempts state law causes of action that fall within the scope of that provision. See 481 U.S. at 67; Speciale, 147 F.3d at 615. One of ERISA’s civil enforcement provisions,
In Jass, we identified three factors to be used to determine whether a state law claim should be recharacterized as an ERISA claim under sec. 502(a): (1) “whether the plaintiff is eligible to bring a claim under that section“; (2) “whether the plaintiff’s cause of action falls within the scope of an ERISA provision that the plaintiff can enforce via sec. 502(a)“; and (3) “whether the plaintiff’s state law claim cannot be resolved without an interpretation of the contract governed by federal law.” 88 F.3d at 1487 (quotation marks and citations omitted). When all three factors are present, the state law claim is properly recharacterized as an ERISA claim under sec. 502(a). See id. at 1489-90.
We agree with the district court that Ms. Moran’s state law claims are properly recharacterized as claims for benefits under
C.
Now that we have determined that removal of Ms. Moran’s state court claims based on sec. 4-10 of the HMO Act was proper, we turn to Rush’s preemption defense.
The comprehensive scope of ERISA extends to the regulation of employee welfare benefit plans providing “medical, surgical, or hospital care or benefits” for plan participants “through the purchase of insurance or otherwise.”
As provided by sec. 514 of the statute, ERISA also preempts some state laws. Specifically, ERISA’s preemption clause, sec. 514(a), “broadly” states that state laws are preempted “to the extent that those laws ’relate to any employee benefit plan.’” UNUM Life Ins. Co. of Am. v. Ward, 526 U.S. 358, 363 (1999) (quoting
We address each clause in turn.
1.
For purposes of sec. 514(a), a state law “relates to” a covered employment benefit plan if it either has (1) “a connection with” or (2) “reference to” such a plan. E.g., California Div. of Labor Standards Enforcement v. Dillingham Constr., N.A., Inc., 519 U.S. 316, 324 (1997); Travelers, 514 U.S. at 656; Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97 (1983). We agree with the parties that sec. 4-10 of the HMO Act “relates to” ERISA plans because its provisions have a connection with such plans.
To determine whether sec. 4-10 of the HMO Act “relates to” ERISA plans, we begin by looking at the state statute. Section 4-10 provides, in relevant part:
Each Health Maintenance Organization shall provide a mechanism for the timely review by a physician holding the same class of license as the primary care physician, who is unaffiliated with the Health Maintenance Organization, jointly selected by the patient (or the patient’s next of kin or legal representative if the patient is unable to act for himself), primary care physician and the Health Maintenance Organization in the event of a dispute between the primary care physician and the Health Maintenance Organization regarding the medical necessity of a covered service proposed by a primary care physician. In the event that the reviewing physician determines the covered service to be medically necessary, the Health Maintenance Organization shall provide the covered service.
State laws that “risk subjecting [ERISA] plan administrators to conflicting state regulations” undoubtedly have a “connection with” ERISA plans within the meaning of sec. 514(a). FMC Corp. v. Holliday, 498 U.S. 52, 59 (1990). Here, sec. 4-10 of the HMO Act requires HMOs, including those that are service providers for ERISA plans, to provide an independent review mechanism and, should the independent reviewer agree with the primary care physician, to pay claims that otherwise might not be paid under the plan. As the Court explained in Travelers, state laws that “mandate[ ] employee benefit structures or their administration” fall within the ambit of ERISA’s preemption clause. Travelers, 514 U.S. at 658. Section 4-10 of the HMO Act has an effect on how benefit determinations are made and, thus, squarely falls within ERISA’s preemption clause.
2.
As we already have noted, however, a state law that “relates to” ERISA plans may nonetheless avoid preemption if that law “regulatеs insurance” within the meaning of ERISA’s saving clause,
We conclude that sec. 4-10 of the HMO Act falls within the saving clause because it “regulates insurance” under a common sense understanding and because it meets at least two of the McCarran-Ferguson factors. As a matter of common sense, sec. 4-10 of the HMO Act regulates insurance because the law is directed at the HMO industry as insurers. We previously have explained that HMOs “are insurance vehicles under Illinois law,” Anderson v. Humana, Inc., 24 F.3d 889, 892 (7th Cir. 1994), and sec. 4-10 of the HMO Act is aimed exclusively at members of the insurance industry, even if the law does not affect the entire insurance industry in Illinois.
Section 4-10 of the HMO Act further regulates insurance under a common sense understanding because the Act’s provisions go to the core of the relationship between the insurer and the insured. “It is fundamental insurance law that ’existing and valid statutory provisions enter into and form a part of all contracts of insurance to which they are applicable, and, together with settled judicial constructions thereof, become a part of the contract as much as if they were actually incorporated therein.’” Plumb, 124 F.3d at 861 (quoting 2 Lee R. Russ & Thomas F. Segalla, Couch on Insurance 3d sec. 19:1, at 19-2 to 19-4 (1996)). The provisions of sec. 4-10 of the HMO Act, therefore, are substantive terms of all insurance policies in Illinois by operation of law. When a law mandates a contract term between parties, whether that term is characterized as creating a “procedural” or “substantive” right, that law is “integral” to the insurer/insured relationship. Ward, 526 U.S. at 374-75 & n.5.
Having determined that sec. 4-10 of the HMO Act regulates insurance under a common sense understanding, we look next to the McCarran-Ferguson fаctors. Section 4-10 clearly satisfies the second and third McCarran-Ferguson factors.3 The second McCarran-Ferguson factor is satisfied because sec. 4-10 creates a mandatory term in the insurance contract and, thus, “changes the bargain between insurer and insured,” id. at 374. Moreover, sec. 4-10 satisfies the third McCarran-Ferguson factor because, as we already have explained, the section applies only to HMOs acting as insurers. Thus, the law is limited to entities within the insurance industry.
3.
The “deemer clause,”
The “deemer clause” is inapplicable to this case. In FMC Corp., the Supreme Court explained that thе deemer clause exempts “self-funded ERISA plans from state laws that ’regulate insurance’ within the meaning of the saving clause.” Id. The ERISA plan at issue before us, however, is not a self-funded plan; it is an insured plan. The Supreme Court’s interpretation of the deemer clause “makes clear that if a plan is insured, a State may regulate it indirectly through regulation of its insurer and its insurer’s insurance contracts.” Id. at 64. Rush is the insurer to the ERISA plan at issue in our case, and therefore the deemer clause does not apply. See Ward, 526 U.S. at 367 n.2 (stating that, because the plan at issue in that case was not self-insured, the deemer clause was “not at issue“); Plumb, 124 F.3d at 859 n.6 (explaining that, because the plan at issue was an insured plan, the deemer clause was inapplicable).
4.
A state law that falls within the saving clause nevertheless may be preempted if that law conflicts with a substantive provision of ERISA. See Pilot Life, 481 U.S. at 57. Rush argues that sec. 4-10 of the HMO Act conflicts with
The Texas independent review statute, like sec. 4-10 of the HMO Act, essentially “allow[s] a patient who has been denied coverage to appeal to an outside organization.” Id. at 537. The law requires HMOs to provide a mechanism for patients to obtain an independent review of the need for a course of treatment. Specifically, the court explained, the Texas statute states that patients may appeal “adverse determinations,” which are defined as determinations that a health care service is not “medically necessary” or “appropriate,” to an independent reviewer. Id.
Our colleagues in the Fifth Circuit took the view that the Texas law conflicted with ERISA’s civil enforcement scheme and therefore was preempted. The court concluded that Texas’ independent review statute was preempted, even though it regulated insurance within the meaning of the saving clause, because the statute’s provisions were contrary to the civil enforcement scheme established in sec. 502(a). See id. at 539. According to the court, the Texas independent review statute “establish[ed] a quasi-administrative procedure for the review of [a decision to deny benefits] and [bound] the ERISA plan to the decision of the independent [reviewer].” Id. “This scheme,” the court held, “creates an alternative mechanism through which plan members may seek benefits due them under the terms of the plan--the identical relief offered under [sec. 502(a)(1)(B)].” Id.
In denying the petition for rehearing, the court further explained that, in its view, the Texas’ independent review provision “substitutes the medical judgment of a third party physician for the HMO’s, or treating physician’s, judgment as to medical necessity.” Corporate Health Ins., Co. v. Texas Dep’t of Ins., 220 F.3d 641, 644 (5th Cir. 2000). In the view of the court, “the law is clear that Texas cannot provide a supplementary claims process by binding the HMO to pay for a treatment that is simply a second opinion on medical necessity about which reasonable doctors might reach differing conclusions.” Id. at 645. Although the court left open the possibility that an independent review statute might not run afoul of the exclusivity of ERISA’s civil enforcement provisions if the independent review mechanism “regulate[d] the minimal quality level of medical care provided for covered conditions,” the court explained that the Texas statute was “plainly a state regime for reviewing benefit decisions and not a system for implementing a mandated term of insurance regulating a minimal standard of care.” Id.
In our view, sec. 4-10 of the Illinois HMO Act cannot be characterized as creating an alternative remedy scheme that conflicts with sec. 502(a). The independent review scheme created by the Illinois statute is not tantamount to the relief offered under
Nor does the addition of this statutorily mandated provision in the contract alter impermissibly the deferential standard of review required by the language of the plan. Certainly, the administrator’s failure to abide by the decision of the outside medical consultant on the issue of medical necessity would constitute an abuse of discretion. The statutorily required provision of the plan requires that the decision of the independent review physician be followed, and it would be an abuse of discretion on the part of the administrator not to observe the command of this provision. However, the different outcome is not because of a change in the standard of review but because of a change in the provisions of the contract.6
We also believe that it is inaccurate to say that sec. 4-10 of the HMO Act conflicts with the fiduciary role of the administrator of the plan. At the outset, it is important to note that the provisions of sec. 4-10 of the HMO Act apply only to disputes about whether a covered service is medically necessary in a given case. Other issues, most notably the issue of whether a particular treatment is covered, do not fall within the ambit of the section. Moreover, as we have already noted, even with respect to medical necessity decisions, there is nothing in sec. 4-10 of the HMO Act that in any way abrogates the pre-existing fiduciary obligations of the administrator. Section 4-10 of the HMO Act merely adds an additional obligation that the fiduciary must observe.
In sum, sec. 4-10 of the HMO Act requires entities in the business of insurance to provide additional safeguards to preserve the integrity of the decision-making process. Following the example of the Supreme Cоurt of the United States, we believe that such requirements ought to be treated as mandated contract terms and treated as part of the insurance contract. See Ward, 526 U.S. at 375-76; see also Plumb, 124 F.3d at 861. Unlike the situation in Pilot Life, we are not asked here to recognize a state common law doctrine of general applicability but a specific statutory provision aimed at the regulation of the insurance industry. As in Ward, we simply accept the state-mandated provision as a provision of the plan and then enforce the contract.7
D.
In this case, there no longer remains a question of material fact that would preclude judgment as a matter of law. As we already have explained, Ms. Moran’s claim for reimbursement really is a claim for benefits made under
Conclusion
For the foregoing reasons, we reverse the judgment of the district court.
REVERSED
Posner, Circuit Judge, with whom Circuit Judges Coffey, Easterbrook, and Diane P. Wood join, dissenting from denial of hearing en banc. This case is well worth the attention of the full court. The panel’s decision creates a square conflict with another circuit, is very probably unsound, and will affect an enormous number of cases. It is also a single-issue case, and the issue is one of law, so that en banc consideration would be unlikely to create a fractured result or bog the court down in factual questions. Rarely have we had so strong a candidate for en banc review.
The decision holds that ERISA does not preempt an Illinois statute that requires HMOs tо submit to review by an independent physician the decision by the HMO not to cover a treatment deemed medically necessary by the patient’s physician.
The law in this case, like the materially identical law held preempted by the Fifth Circuit, is not a general regulation of insurance, or even of health insurance; it is a regulation of HMOs, which are the service providers under a great many ERISA medical benefits plans. The law establishes a system of appellate review of benefits dеcisions that is distinct from the provision in ERISA for suits in federal court to enforce entitlements conferred by ERISA plans.
Although the panel’s opinion is long, it does not respond to the concerns just expressed, although they were forcefully argued in the HMO’s brief and in an amicus brief supporting the HMO. All that the panel can find to say in defense of its startling decision, except that it thinks it supported by Ward, yet without appreciating the force of the Fifth Circuit’s distinction of that case, is that the Illinois law makes the physician-review provision a part of the ERISA plan and so does not disturb the exclusivity of ERISA’s scheme for the enforcement of the rights that ERISA plans confer on participants and beneficiaries. Under the рanel’s view, then, if the plan does not submit a disagreement to review by the independent physician, the participant can sue the plan for a violation of its terms. This is just a facon de parler. It invites states to evade the preemptive force of ERISA simply by deeming its regulations of ERISA plans to be plan terms. It would authorize a state to require ERISA plans to double their benefits. I am sure the panel would not go so far as to permit so transparent an evasion of ERISA’s preemption clause, but the opinion contains nothing that would enable the panel to distinguish that case. Far from being compelled by Ward, the panel’s opinion is in tension with Pegram v. Herdrich, 120 S. Ct. 2143 (2000), which it does not cite. Although Pegram held that combined treatment-eligibility decisions by an HMO are not fiduciary decisions under ERISA, it did not doubt that ERISA applied to HMO-managed ERISA plans; the panel, by contrast, seems to think ERISA inapplicable to such plans.
There is another unresolved tension in the panel’s opinion. The opinion appears to depend on two propositions: first, that the Illinois law regulates insurance rather than ERISA plans and thus is not preempted; second, that by virtue of Illinois law the requirement of independent physician review is written not only into an insurance contract but also into the plan itself, which makes the requirement enforceable in federal court. The two propositions are incompatible. If the statute merely regulates insurance and therefore is not preempted, how can it be part of an ERISA plan and enforceable in federal court? If, on the other hand, the requirement imposed by the statute is and must be incorporated into the plan, then Illinois has done more than merely regulate the contents of an insurance policy. It has regulated the contents of an ERISA plan--which means that its law is preempted.
Notes
(a) It is furnished or authorized by a Participating Doctor for the diagnosis or the treatment of a Sickness or Injury or for the maintenance of a person’s good health.
(b) The prevailing opinion within the appropriate specialty of the United States medical profession is that it is safe and effective for its intended use, and that its omission would adversely affect the person’s medical condition.
(c) It is furnished by a provider with appropriate training, experience, staff and facilities to furnish that particular service. . . .
R.1-1, Ex.A at 21.