Hopkin v. Blue Cross of Idaho Care Plus, Inc.

Filing 24

MEMORANDUM DECISION AND ORDER granting 14 Motion to Dismiss for Failure to State a Claim. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

JEFFERY HOPKIN, as the representative
of, and on behalf of: Rosa H., Terry J.,
Breanna M., Ariel N., Greg O., Tyler W.,
Gerald H., Allison M., Cameron B.,
Mason B., Walter F., Tamara G., Kassia
G., Katherine G., Korryn G., Peter H.,
Taff H., Richard J., Terry J., Kiera J.,
Paula M., Virginia M., Michelle O.,
Ronald P., Teri S., Peter S., Haley B.,
Rosalba O., Millie W., Terry J., Natasha
S., Nicholas F., Nathaniel D., Kody R.,
and JEFFERY HOPKIN in his capacity as
a designated Beneficiary,

Case No. 4:17-cv-00300-EJL

MEMORANDUM DECISION AND
ORDER

Plaintiffs,
vs.
BLUE CROSS OF IDAHO HEALTH
SERVICE, INC., or in the alternative,
BLUE CROSS OF IDAHO CARE PLUS,
INC., both Idaho corporations,
Defendants.

INTRODUCTION
Pending before the Court is Defendant Blue Cross of Idaho Health Service, Inc.’s
(“Blue Cross of Idaho”) Motion to Dismiss. The parties filed responsive briefing and the
motion is now ripe for decision. Having fully reviewed the record herein, the Court finds
that the facts and legal arguments are adequately presented in the briefs and record.
Accordingly, in the interest of avoiding further delay, and because the Court conclusively
MEMORANDUM DECISION AND ORDER- 1

finds that the decision making process would not be significantly aided by oral argument,
the Motion shall be decided on the record before this Court without oral argument.
BACKGROUND
Plaintiff Jeffery Hopkin (“Dr. Hopkin”) is the owner of Upper Valley Family
Practice. (Dkt. 1, ¶ 1-2.) Dr. Hopkin was the healthcare provider for the named individual
patients, plan participants, and/or beneficiaries for all the claims at issue. (Dkt. 9, ¶ 2, 3.)
Dr. Hopkin contends that these individuals appointed him as their beneficiary and to act as
their personal representative for the purpose of bringing the claims at issue. (Dkt. 9, ¶ 4.)
In November 2011, Upper Valley Family Practice entered into a Professional Health
Care Provider Contract (“Provider Contract”) with Defendant Blue Cross of Idaho Health
Service, Inc. (“Blue Cross of Idaho”). (Dkt. 6-3, Ex. A; Hopkin Decl., Dkt. 19-15, ¶ 4.)
Pursuant to the Provider Contract, Upper Valley Family Practice performed medical
services for enrollees in health plans insured or administered by Blue Cross of Idaho. (Dkt.
14-1.; see generally Dkt. 9, ¶ 44-50, Dkt. 6-5, Ex. C.) Dr. Hopkin provided medical
services at Upper Valley Family Practice and Upper Valley Family Practice billed Blue
Cross of Idaho for those medical services. (Dkt. 6-4; Hopkin Decl., Dkt. 19-15, ¶ 3.) Blue
Cross of Idaho paid each of the claims at issue in this case during 2013. (Dkt. 6-4.)
On December 30, 2013, Blue Cross of Idaho sent Upper Valley Family Practice a
letter stating that “benefits have been incorrectly applied to claims submitted by your office
for Antigen leukocyte cellular antibody (ALCAT) automated food tests[,]” which Blue
Cross of Idaho considers investigational. (Dkt. 6-4.) The letter further informed Upper
Valley Family Practice that, under Blue Cross Medical Policy, they were prohibited from
MEMORANDUM DECISION AND ORDER- 2

seeking payment or reimbursement for investigational services under the Professional
Health Care Provider Contract (“Provider Contract”). (Dkts. 9, 6-4, 14-1.) As a result of its
adverse benefit determination, Blue Cross of Idaho began recouping the previously paid
amounts by withholding monies for properly billed claims for other patients and plan
participants from January through March of 2014 and then again from May through July
of 2014. (Dkt. 9, ¶ 19, 22.)
On July 17, 2017, Dr. Hopkin, as a representative of and on behalf of named patients
and also on behalf of himself as a designated beneficiary, filed suit against Blue Cross of
Idaho. (Dkt. 1.) Dr. Hopkin brought suit pursuant to 29 U.S.C. §§ 1106(b), 1132 and 28
U.S.C. § 2201 for declaratory relief, injunctive relief, attorney’s fees, and damages alleging
Blue Cross of Idaho violated its fiduciary duties, ERISA, and the Claims Procedure
Regulation by making the reverse benefit determinations at issue and recouping monies for
the alleged overpayments. (Dkt. 9.) Dr. Hopkin asks the Court to declare that Blue Cross
of Idaho “has no legal authority to reverse health benefit plan claims determinations it
previously, repeatedly, and voluntarily made under the applicable health benefit plans” and
to enjoin Blue Cross of Idaho from doing so; to enjoin Blue Cross of Idaho from recouping
and/or off-setting payments from other plan participants; and to recover the monies Blue
Cross of Idaho has already withheld and obtain benefits owed to Dr. Hopkin. (Dkt. 9.)
On October 6, 2017, Blue Cross of Idaho filed the instant Motion to Dismiss on two
bases: (1) failure to state a claim upon which relief can be granted, or, in the alternative,
(2) lack of standing. (Dkt. 14-1.) Fundamentally, Blue Cross of Idaho argues that Plaintiff,

MEMORANDUM DECISION AND ORDER- 3

as a health care provider and without valid assignments from the plan participants, lacks
standing to bring a civil enforcement action under ERISA. (Dkt. 21.)
STANDARD OF LAW
1.

FRCP 12(b)(6): Motion to Dismiss for Failure to State a Claim
A motion to dismiss made pursuant to Federal Rule of Civil Procedure 12(b)(6) tests

the legal sufficiency of a party’s claim for relief. When considering such a motion, the
Court’s inquiry is whether the allegations in the pleading are sufficient under applicable
pleading standards. Federal Rule of Civil Procedure 8(a) sets forth minimum pleading
rules, requiring only a “short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2).
In general, a motion to dismiss will only be granted if the complaint fails to allege
“enough facts to state a claim to relief that is plausible on its face.” Bell. Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. The plausibility standard is not akin to a
‘probability standard,’ but asks for more than a sheer possibility that a defendant has acted
lawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).
Although the Court “must take all of the factual allegations in the complaint as true”
it is “not bound to accept as true a legal conclusion couched as a factual allegation.”
Twombly, 550 U.S. at 555. Therefore, “conclusory allegations of law and unwarranted
inferences are insufficient to defeat a motion to dismiss for failure to state a claim.”

MEMORANDUM DECISION AND ORDER- 4

Caviness v. Horizon Comm. Learning Cent., Inc., 590 F.3d 806, 811-12 (9th Cir. 2010)
(citation omitted).
Generally, the Court may not consider any material beyond the pleadings in ruling
on a motion to dismiss under Rule 12(b)(6). See Branch v. Tunnell, 14 F.3d 449, 453 (9th
Cir. 1994). A Court may, however, “consider attachments to the complaint and documents
referred to in (but not attached to) the complaint, where the authenticity of such document
is not in question.” Mueller v. Correction Corp. of America, 2013 WL 431796, at *1 (D.
Idaho 2013) (citing Cooper v. Pickett, 137 F.3d 616 (9th Cir. 1997)). But, where the parties
rely on materials outside the pleadings and the Court considers that evidence, the Court
must convert a 12(b)(6) motion into one for summary judgment under Rule 56. United
States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003).
Dr. Hopkin referred to the Provider Contract, the Appointment and Designation
Forms, and the health plans in the Amended Complaint. Further, Dr. Hopkin does not
question the authenticity of these documents. Accordingly, the Court may consider these
documents in this motion to dismiss without converting the motion to one for summary
judgment.
2.

FRCP 12(b)(1): Motion to Dismiss for Lack of Standing
Article III standing is an element of subject matter jurisdiction; therefore, a party’s

lack of standing may be raised in a motion under 12(b)(1). As a general matter, in
considering a 12(b)(1) motion to dismiss, the court need not defer to a plaintiff’s factual
allegations regarding jurisdiction. However, where the motion to dismiss is based on lack
of standing, the reviewing court must defer to the plaintiff’s factual allegations, and further
MEMORANDUM DECISION AND ORDER- 5

must “presume that general allegations embrace those specific facts that are necessary to
support the claim.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).
“The doctrine of standing is based both on prudential concerns and on constitutional
limitations on the jurisdiction of the federal courts.” Doran v. 7-Eleven, Inc., 524 F.3d
1034, 1039 (9th Cir. 2008). To determine whether a dispute presents a case or controversy
sufficient to give rise to constitutional standing, the court applies a three-element test:
(1) “[T]he plaintiff must have suffered an ‘injury in fact’- an
invasion of a legally protected interest which is (a) concrete
and particularized, and (b) actual or imminent, not conjectural
or hypothetical….” Id. (quoting Lujan, 504 U.S. at 5601-61).
(2) “[T]here must be a causal connection between the injury
and the conduct complained of.” Id.
(3) “[I]t must be likely, as opposed to merely speculative, that
the injury will be redressed by a favorable decision.” Id.
DISCUSSION
1.

FRCP 12(b)(6): Motion to Dismiss for Failure to State a Claim.
Dr. Hopkin brings this suit under ERISA, 29 U.S.C. §§ 1132(a)(1)(B), (a)(3), and

the Declaratory Judgment Act, 28 U.S.C. § 2201. (Dkt. 9.) Blue Cross of Idaho argues that
Dr. Hopkin’s claims must be dismissed under Rule 12(b)(6) for failure to state a claim upon
which relief can be granted because he lacks the statutory authority or standing to bring
suit under ERISA. (Dkt. 14-1.)
“‘ERISA provides for a federal cause of action for civil claims aimed at enforcing
the provisions of an ERISA plan.’” Spinedex Physical Therapy USA Inc. v. United
Healthcare of Arizona, Inc., 770 F.3d 1282, 1288 (9th Cir. 2014) (quoting Reynolds Metals
MEMORANDUM DECISION AND ORDER- 6

Co. v. Ellis, 202 F.3d 1246, 1247 (9th Cir. 2000)). “To have standing to state a claim under
ERISA, ‘a plaintiff must fall within one of ERISA’s nine specific civil enforcement
provisions, each of which details who may bring suit and what remedies are available.’”
Spinedex, 770 F.3d at 1288 (quoting Reynolds Metal, 202 F.3d at 1247).
ERISA’s civil enforcement provision specifies the “[p]ersons empowered to bring
a civil action.” 29 U.S.C. § 1132(a). The relevant ERISA provisions state:
(a) A civil action may be brought – (1) by a participant or beneficiary—
(A) for the relief provided for in subsection (c) of this section, or (B) to
recover benefits due to him under the terms of his plan, to enforce his
rights under the terms of the plan, or to clarify his rights to future
benefits under the terms of the plan; . . . (3) by a participant, beneficiary,
or fiduciary (A) to enjoin any act or practice which violates any
provision of this subchapter or the terms of the plan, or (B) to obtain
other appropriate equitable relief (i) to redress such violations or (ii) to
enforce any provisions of this subchapter or the terms of the plan.
29 U.S.C. § 1132(a)(1), (3).
Dr. Hopkin maintains he has authority to bring claims under ERISA in his capacity
as the plan participants’: (1) designated beneficiary, (2) representative, and (3) fiduciary.
(Dkt. 19.) As explained more fully below, the Court finds, as a matter of law, that Dr.
Hopkin does not have the statutory authority or standing to bring ERISA claims under any
of his three asserted theories.
A.

The Appointment and Designation Form

It is undisputed that Dr. Hopkin is a healthcare provider and healthcare providers
generally are not beneficiaries under ERISA. (Dkt. 19, pp. 8-9.) It is also undisputed that
the health plans at issue contain anti-assignment clauses precluding Dr. Hopkin’s patients
from assigning their claims to him. (Id. at pp. 10, 12.)
MEMORANDUM DECISION AND ORDER- 7

However, Dr. Hopkin argues that he is not bringing these claims in his capacity as
a healthcare provider. (Dkt. 19.) Instead, Dr. Hopkin claims that he is the plan participants’
designated beneficiary and personal representative pursuant to an agreement titled:
Assignment of Health Plan Benefits and Rights
as Well as An
Appointment and/or Designation as My Personal Representative and an
ERISA/ APPACA Representative and Beneficiary
(Dkt. 9-1) (the “Appointment and Designation Form”). 1
The Appointment and Designation Form is a contract between Dr. Hopkin and
Upper Valley Medical Clinic on the one hand and the patients on the other. (Dkt. 9-1; Dkt.
19, p. 3 (“Each patient independently signed a contractual agreement with Plaintiff, Dr.
Hopkin, and his clinic….”) The Appointment and Designation Form refers to Dr. Hopkin
and Upper Valley Family Practice, among others, as “Healthcare Provider.” (Dkt. 19-1, ¶¶
9-10.)
There are three provisions in the Appointment and Designation Form relevant to the
instant motion. First, by signing the Appointment and Designation Form, each patient
agreed to be ultimately responsible to Dr. Hopkin and/or Upper Valley Medical Practice
for the balance due for any professional services rendered:
I understand and agree that (regardless of whatever health
insurance or medical benefits I have), I am ultimately
responsible to pay [Healthcare Provider] . . . the balance due
on my account for any professional services rendered and for
any supplies, tests, or medications provided.
1

There are two versions of this form, which was changed in November 2016.
(Dkt. 16-1, ¶¶ 9-10.) It is undisputed that Dr. Hopkin is included in the definition of
“Healthcare Provider” for the purposes of both forms. (Id. at ¶ 9.)
MEMORANDUM DECISION AND ORDER- 8

(Dkt. 9-1.) Second, the patients designated and appointed Dr. Hopkin and/or Upper Valley
Medical Practice to serve as their beneficiaries:
I hereby authorize payment of, and assign my rights to, any
health insurance or medical plan benefits directly to Healthcare
Provider for any and all medical/healthcare services, supplies,
equipment, tests, treatments, and/or medications that have
been or will be rendered or provided; as well as designating
and appointing Healthcare Provider as my beneficiary under
all health insurance or medical plans which I may have benefits
under.
(Id.) (emphasis in original.) Third, the patients appointed and designated Dr. Hopkin and/or
Upper Valley Medical Practice to act as their representative for the purpose of pursuing
any remedies including legal action:
I also hereby appoint and designate that Healthcare Provider
can act on my/our behalf, as my/our Personal Representative,
ERISA Representative, and PPACA Representative as to any
claim determination, to request any relevant claim or plan
information from the applicable health plan or insurer, to file
and pursue appeals and/or legal action (including in my name
and on my behalf) to obtain and/or protect benefits and/or
payments that are due (or have been previously paid) to either
Healthcare Provider, myself, and/or my family members as a
result of services rendered by Healthcare Provider, and to
pursue any and all remedies to which I/we may be entitled,
including the use of legal action against the health plan, the
insurer, or any administrator.
(Id.)
Relying on this language, Dr. Hopkin argues he was appointed to be each patient’s
beneficiary and representative and was specifically authorized in these capacities to pursue
any and all remedies available including legal action. (Dkt. 19, p. 3.) Therefore, instead of
bringing collection actions against his individual patients for unpaid medical services, Dr.
MEMORANDUM DECISION AND ORDER- 9

Hopkin argues he can use his representative status to bring an action against the Defendant.
(Id.)
As explained more fully below, the Court finds that ERISA does not support any of
Plaintiff’s theories of statutory standing. ERISA is simply not the correct legal vehicle for
Dr. Hopkin to use to address Defendant’s alleged misconduct in: (1) denying certain claims
retroactively after unilaterally determining they were not, in fact, covered and (2) seeking
repayment through recoupment by withholding payment on wholly unrelated claims it
recognizes as valid.
B.

A Health Care Provider’s Direct and Derivative Standing under ERISA.

ERISA allows plan participants and their beneficiaries to bring civil enforcement
actions. 29 U.S.C. § 1132(a)(1), (3). A beneficiary is defined as “a person designated by a
participant, or by the terms of an employee benefit plan, who is or may become entitled to
a benefit thereunder.” 29 U.S.C. § 1002(8).
Generally, health care providers are not “beneficiaries” within the meaning of
ERISA’s enforcement provisions. DB Healthcare, LLC v. Blue Cross Blue Shield of
Arizona, Inc., 852 F.3d 868, 874 (9th Cir. 2017). “[P]ayment to a medical provider for
services rendered is not properly termed a ‘benefit’ to the provider.” Id. Healthcare
providers, unlike beneficiaries, receive compensation for services rendered which is
distinct from “the specific advantages provided to covered employees . . . as a consequence
of their employment.” Id. In short, “[h]ealth care providers’ patients are . . . the ones who
receive ERISA health benefits, not the providers themselves.” Id. at 875.

MEMORANDUM DECISION AND ORDER- 10

Nevertheless, while healthcare providers do not have direct claims for benefits
under ERISA, they may acquire derivative claims on behalf of their patients. “[A] nonparticipant health care provider . . . cannot bring claims for benefits on its own behalf. It
must do so derivatively, relying on its patients’ assignments of their benefits claims.”
Spinedex, 770 F.3d at 1289.
In this case, the parties agree that there has been no assignment. Instead, Dr. Hopkin
contends he can sue Blue Cross of Idaho in another derivative capacity, as the plan
participants’ designated “beneficiary” and “representative.” Despite the language of the
parties’ contract, the Court finds no support for Dr. Hopkin’s argument under ERISA.
C.

Dr. Hopkin Is Not a Direct Beneficiary under ERISA.

Dr. Hopkin contends that he has authority to bring suit under ERISA as a beneficiary
because the plan participants designated him as a plan beneficiary in the Appointment and
Designation Form. (Dkt. 19.) In response, Blue Cross of Idaho argues Dr. Hopkin is not
entitled to benefits under the health plan as intended by ERISA; therefore, the Court should
follow the Ninth Circuit’s decision in DB Healthcare wherein the court concluded that
health care providers “do not have direct authority as beneficiaries to sue under ERISA
§ 502(a)(1)(B) or § 502(a)(3) to recover payment due them for services rendered, or
otherwise to enforce the statute’s protections.” DB Healthcare, 852 F.3d at 875.
The Court finds DB Healthcare is controlling on this issue. Despite the language in
the Appointment and Designation Form, Dr. Hopkin is not a “beneficiary” within the
meaning of that term in ERISA. He is not, nor will he become, “entitled to a benefit” under
the health plan. See 29 U.S.C. § 1002(8).
MEMORANDUM DECISION AND ORDER- 11

In DB Healthcare, the Ninth Circuit explained that “a payment to a medical provider
for services rendered is not properly termed a ‘benefit’ to the provider.” DB Healthcare,
852 F.3d at 874. The Court reached this conclusion after finding that “[t]he term ‘benefit,’
in context [of ERISA], quite evidently refers to the specific advantages provided to covered
employees, as a consequence of their employment, for particular purposes connected to
alleviating various life contingencies.” DB Healthcare, 852 F.3d at 874. In further support,
the Court held that the dictionary provided that “benefit” was “‘[a] form of compensation,
such as paid vacation time, subsidized health insurance, or a pension, provided to
employees in addition to wages or salary as part of an employment arrangement.’” DB
Healthcare, 852 F.3d at 874 (quoting American Heritage Dictionary of the English
Language 168 (5th ed. 2011)).
Dr. Hopkin attempts to distinguish this case from DB Healthcare in two ways. First,
Dr. Hopkin contends that DB Healthcare is not controlling because he is not bringing the
claims at issue in this lawsuit as a healthcare provider but, instead, as a designated
beneficiary and/or personal representative of his patients.
The Court rejects Dr. Hopkin’s first argument. The Court simply cannot ignore the
fact Dr. Hopkin is the healthcare provider even if he argues that he is bringing the claims
at issue in his individual capacity.
As a matter of law, the Court finds that Dr. Hopkin is a party to the provider contract
and, regardless, cannot ignore his status as a healthcare provider in this case. First, the
provider contract is unambiguous in terms of its application to both Dr. Hopkin and Upper
Valley Medical Practice. (Dkt. 6-3, p. 3.) Second, it is undisputed that Dr. Hopkin is the
MEMORANDUM DECISION AND ORDER- 12

owner and sole healthcare provider at the Upper Valley Family Practice. (Dkt. 19-15, ¶ 2.)
Third, it is undisputed that Dr. Hopkin provided all of the medical procedures at issue.
(Dkt. 9, ¶¶ 84, 87.) Fourth, it is undisputed that “[a]ll healthcare services that [Dr. Hopkin]
. . . provided . . . [were] billed by the Clinic and under the tax ID number of the Clinic.”
(Dkt. 19-5, ¶ 3.) Fifth, it is undisputed that the Appointment and Designation Form, the
very contract Dr. Hopkin relies upon to bring this suit as a beneficiary and/or personal
representative, identifies him as “Healthcare Provider.” (Dkt. 9-1.) Sixth, in this lawsuit
Dr. Hopkin seeks to: (1) enjoin Blue Cross of Idaho from engaging in recoupment and (2)
recover payment for the amounts Blue Cross of Idaho has withheld from Upper Valley
Family Practice in recoupment. (Dkt. 9, p. 29.) Dr. Hopkin cannot both claim he is bringing
these claims in his individual capacity while suing to recoup monies allegedly owed
directly to him as a healthcare provider.
The Court also rejects Dr. Hopkin’s second argument that, as a designated
beneficiary, the benefit he seeks is the ability to pursue any and all rights on behalf of the
plan participants regarding the health plan. This argument is not consistent with relief
sought in the Complaint. Moreover, it is inconsistent with the language of ERISA as
applied in DB Healthcare.
In short, no matter how Dr. Hopkin attempts to couch his claim or what type of
benefits he claims to be pursuing as a beneficiary, he is not a beneficiary as that term is
used in ERISA. Dr. Hopkin is pursuing compensation for medical services rendered. Even
though Dr. Hopkin might have been designated as a “beneficiary” by his patients, he is not
entitled to any “benefit” under any of the health plans at issue.
MEMORANDUM DECISION AND ORDER- 13

D.

Dr. Hopkin Is Not a Derivate Beneficiary as a Personal Representative.

The only type of derivative standing available under ERISA is with a valid
assignment. See DB Healthcare, 852 F.3d at 874 (“A non-participant healthcare provider .
. . cannot bring claims for benefits on its own behalf. It must do so derivatively relying on
its patients’ assignment of their benefits claims.”); Brown v. BlueCross Blue Shield of
Tenn., Inc., 827 F.3d 543, 546 (6th Cir. 2016) (a “provider obtains derivative standing to
sue under ERISA only when the patient actually convey[s] a valid assignment of benefits
under the plan.” (internal quotations omitted) (emphasis added).
Dr. Hopkin concedes that the Defendants have an anti-assignment clause in their
health plans with his patients. (Dkt. 19, p. 10.) Nonetheless, he believes that the
Appointment and Designation Forms in this case were drafted cleverly so as to avoid the
anti-assignment clauses and still confer derivative standing to him. Rather than “assigning”
their rights under the plans, Dr. Hopkin’s patients designated him as their Personal
Representative, ERISA Representative, and PPACA Representative. (Dkt. 19, p. 6.) As
their personal representative and beneficiary, Dr. Hopkin attempts to bring the claims his
clients would otherwise bring on their own behalf and then retain the compensation he
believes he is owed.
There are two problems with Dr. Hopkin’s argument. First, Dr. Hopkin is seeking
to establish derivative standing without use of the term “assignment.” By designating
himself as a beneficiary and personal representative of his patients, what he is trying to do
is stand in the shoes of his patients to obtain the benefits he claims are due under the plans.
This is exactly what an assignment is and, while an assignment is clearly allowed under
MEMORANDUM DECISION AND ORDER- 14

ERISA and may confer derivative standing to a healthcare provider, it is undisputed that
an assignment is not permitted by the plan documents at issue in this case.
Second, Dr. Hopkin’s patients have not, in fact, been injured. Dr. Hopkin concedes
that he has never billed the patients for the services rendered. Clearly, he wants to avoid
that and simply bring the claims on their behalf. However, he cannot bring claims as the
representatives of his clients when they have not, in fact, been billed for the services at
issue.
Dr. Hopkin relies on 29 C.F.R. § 2560.503-1(b)(4) for support of his argument that,
as a representative of the plan participants, he is entitled to all of the rights and privileges
of the plan participants and beneficiaries and has derivative standing to bring a cause of
action under ERISA that the plan participants could have otherwise brought against
Defendant. (Dkt. 19, p. 13.) 29 C.F.R. § 2560.503-1(b)(4) provides: “[t]he claims
procedures do not preclude an authorized representative of a claimant from acting on behalf
of such claimant in pursuing a benefit claim or appeal of an adverse benefit determination.”
If Dr. Hopkin qualified as an authorized representative, he could pursue a benefit
claim or appeal an adverse benefit determination on behalf of the plan participants under
the claims regulations. However, this administrative authorization is different from the
statutory standing required under the civil enforcement regulations of ERISA. The claims
procedure regulations involve administrative remedies, not judicial remedies. As such, Dr.
Hopkin reliance on 29 C.F.R. § 2560.503-1(b)(4) as support for his derivative authority to
bring a civil enforcement action under ERISA is misplaced.

MEMORANDUM DECISION AND ORDER- 15

E.

Dr. Hopkin is Not a Fiduciary under ERISA.

Dr. Hopkin argues that by virtue of his designation as the plan participants’
representative, he is also their fiduciary and has authority to sue Blue Cross of Idaho on
behalf of the plan participants under 29 U.S.C. § 1132(a)(3). (Dkt. 19.) This argument is
contrary to the definition of “fiduciary” set forth in ERISA.
ERISA defines “fiduciary’ as follows:
a person is a fiduciary with respect to a plan to the extent (i) he
exercises any discretionary authority or discretionary control
respecting management or such plan or exercises any authority
or control respecting management or disposition of its assets,
(ii) he renders investment advice for a fee or other
compensation, direct or indirect, with respect to any moneys or
other property of such plan, or has any authority or
responsibility to do so, or (iii) he has any discretionary
authority or discretionary responsibility in the administration
of such plan.
29 U.S.C. § 1002(21)(A).
Thus, the term “fiduciary” in ERISA refers to a fiduciary of the health plan, not of
the participants or beneficiaries. Dr. Hopkin does not allege that he is a fiduciary to the
health plan, instead relying on his alleged fiduciary relationship with the plan participants.
Because this is not the type of fiduciary relationship contemplated by ERISA, Dr. Hopkin
does not have statutory standing under ERISA to bring claims as a fiduciary.
2.

Constitutional Standing
Because the Court finds Dr. Hopkin does not have statutory authority to bring any

of his claims under ERISA it will not address the Motion to Dismiss for lack of
constitutional standing.
MEMORANDUM DECISION AND ORDER- 16

CONCLUSION
Dr. Hopkin does not have authority to bring these claims as he does not have
derivative statutory standing as the plan participants’ personal representative and he is not
a beneficiary or fiduciary within the meaning of ERISA. Therefore, Blue Cross of Idaho’s
Motion to Dismiss is granted.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED that Blue Cross of Idaho’s
Motion to Dismiss (Dkt. 14) is GRANTED.
DATED: March 1, 2018

_________________________
Edward J. Lodge
United States District Judge

MEMORANDUM DECISION AND ORDER- 17