The U.S Court of Appeals for the Fifth Circuit has certified yet another unsettled question of Texas law to the Texas Supreme Court. This is a big one that should have the attention of every employer that offers employee health plans and every entity that provides them.

In ACS Primary Care Physicians Southwest, P.A., et al. v. UnitedHealthcare Insurance Company; UnitedHealthcare of Texas, Inc. (No. 21-20168, on appeal from the U.S. District Court for the Southern District of Texas, USDC No. 4:20-CV-1282), several out-of-network emergency-care physician groups sued UnitedHealthcare for failing to pay their “usual and customary” rates for emergent care provided to UHC’s plan enrollees. Texas law generally requires HMOs, Exclusive Provider Organizations, and PPOs to pay for emergency care performed by non-network physicians or providers at either the usual and customary rate or an agreed rate. The physicians, who provided emergency medical services to UHC enrollees from January 2016 to the present, initially brought suit in state court. UHC removed the case to federal court, which dismissed the plaintiffs’ claims from January 2016 to December 2019, but found that the remaining claims survived. UHC sought immediate interlocutory relief from the Fifth Circuit on two issues: (1) whether the emergency care statutes provide for an implied private right of action; and (2) if so, whether ERISA § 514 preempts such claims.

The Fifth Circuit found that this case satisfies the three-factor test for certification: (1) closeness of the question and existence of sufficient sources of state law; (2) considerations of comity; and (3) lack of practical consideration, such as significant delay or inability to frame the issue so as to produce a helpful response on the part of the state court. The Court thus certified the following question: Do §§ 1271.155(a), 1301.0053(a), and 1301.155(b) of the Texas Insurance Code authorize Plaintiff Doctors to bring a private cause of action against UHC for UHC’s failure to reimburse Plaintiff Doctors for out-of-network emergency care at a “usual and customary” rate?

From the standpoint of employers and insurers, a determination that a private cause of action exists will likely trigger an avalanche of lawsuits that could substantially increase the cost of healthcare coverage. From the providers’ standpoint, the existence of a private cause of action would considerably enhance their leverage and raise reimbursement rates. As the Fifth Circuit notes, there are good arguments on both side of the issue, and SCOTX will have its hands full with this one. Oral argument has not yet been scheduled.

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