ENLIGHTENED SOLUTIONS, LLC v. UNITED BEHAVIORAL HEALTH et al

Filing 26

OPINION. Signed by Judge Noel L. Hillman on 12/4/2018. (tf, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

ENLIGHTENED SOLUTIONS, LLC,
Plaintiff,

1:18-cv-06672-NLH-AMD
OPINION

v.
UNITED BEHAVIORAL HEALTH,
UNITE HERE HEALTH, and OPTUM
INC.,
Defendant.

APPEARANCES:
JOHN C. AGNER
513 N. DORSET AVE
VENTNOR, NJ 08406
On behalf of Plaintiff
MICHAEL H. BERNSTEIN
ROBINSON & COLE LLP
666 THIRD AVE, 20TH FLOOR
NEW YORK, NY 10017
CASSIE EHRENBERG
CLEARY, JOSEM & TRIGIANI LLP
CONSTITUTION PLACE
325 CHESTNUT STREET, SUITE 200
PHILADELPHIA, PA 19106
On behalf of Defendants

HILLMAN, District Judge
Plaintiff, a health care provider, has sued its patient’s
ERISA-governed health benefits plan for unpaid medical bills.
Defendants have moved to dismiss Plaintiff’s complaint, arguing

that Plaintiff has no viable claims because of an antiassignment of benefits clause in the patient’s health benefits
plan.

For the reasons expressed below, Defendants’ motion will

be granted.
BACKGROUND
From December 1, 2015 through May 31, 2016, Plaintiff,
Enlightened Solutions LLC, provided detoxification and
rehabilitation treatment to “JV” for his addiction.

JV was

insured under his mother’s health benefits plan, Unite Here
Health Plan Unit 102, which is governed by the Employee
Retirement Income Security Act of 1974 (as amended), 29 U.S.C. §
1001, et. seq. (“ERISA”), and managed and administered by United
Behavioral Health and Optum Inc. (hereinafter collectively
referred to as “Defendants”).

Plaintiff submitted claims to

Defendants pursuant to an Assignment of Benefits entered between
Plaintiff and JV, which stated, “I hereby authorize and request
that payment of benefits by my Insurance Company(s), Optimum
Blue Cross Blue Shield, be made directly to Enlightened
Solutions, LLC for services furnished to me . . . .”

(Docket

No. 1-1 at 6-7.)
Defendants paid the claims for services provided on
December 1, 2015 through January 29, 2016, and for services
provided on March 10, 2016 through May 31, 2016.

Defendants

failed to pay Plaintiff’s claims for February 1, 2016 through
2

March 10, 2016 in the amount of $27,115.

Plaintiff’s complaint

seeks payment for the claims Defendants have not paid for
February and March 2016 based on Defendants’ alleged violations
of ERISA, as well as its attorney’s fees.
According to Plaintiff’s complaint, Defendants first denied
those claims because they did not meet the required medical
necessity.

In response to Plaintiff’s appeal, Defendants again

denied those claims, but this time on the grounds that Plaintiff
submitted its own Assignment of Benefits (“AOB”) form rather
than Defendants’ Assignment of Rights (“AOR”) form, and further
that the AOB was signed more than a year before the dates of
service.

Plaintiff contends a denial on those bases constituted

an abuse of discretion and was arbitrary and capricious because:
(1) the AOB was not signed over a year before the claims, (2)
Plaintiff’s AOB contained the same information as Defendants’
AOR, and (3) Defendants previously accepted Plaintiff’s AOB and
paid those claims.
Plaintiff has advanced two claims under ERISA.

Plaintiff’s

first count is failure to make all payments under 29 U.S.C. §
1132(a)(1)(B).

Plaintiff’s second count is for breach of

fiduciary duty and for equitable relief under 29 U.S.C. §§
1132(a)(3), 1104(a)(1), and 1105(a).
Defendants have moved to dismiss Plaintiff’s claims because
the operative ERISA Plan contains a valid anti-assignment
3

provision which precludes Plaintiff’s attempts to seek
reimbursement on behalf of its patient.

Defendants also argue

that even though the Plan paid some of Plaintiff’s claims for
services provided to its patient, the Plan explicitly states
that such payments do not constitute a waiver of the antiassignment provision.

Defendants further argue that Plaintiff

lacks standing to pursue breach of fiduciary and other similar
claims because those are causes of action only available to the
patient himself.

Plaintiff has opposed Defendants’ motion.
DISCUSSION

A.

Subject matter jurisdiction

Defendants removed this action to this Court from the
Superior Court of New Jersey, Law Division, Atlantic County
pursuant to 28 U.S.C. §§ 1331, 1441(a) & (c), and 28 U.S.C. §
1446.

Federal question jurisdiction exists in this matter

pursuant to 28 U.S.C. § 1331.

ERISA further provides that the

district courts of the United States shall have at least
concurrent, and sometimes exclusive, jurisdiction over the ERISA
causes of action pleaded in the complaint.

29 U.S.C. §

1132(e)(1).
B.

Standard for Motion to Dismiss

“Ordinarily, Rule 12(b)(1) governs motions to dismiss for
lack of standing, as standing is a jurisdictional matter.”

N.

Jersey Brain & Spine Ctr. v. Aetna, Inc., 801 F.3d 369, 371 n.3
4

(3d Cir. 2015).

When, however, statutory limitations to sue are

non-jurisdictional, such as when a party claims derivative
standing to sue under ERISA § 502(a), a motion challenging such
standing is “properly filed under Rule 12(b)(6).”

Id.

(explaining that in practical effect, a motion for lack of
statutory standing is effectively the same whether it comes
under Rule 12(b)(1) or 12(b)(6)) (citation omitted).
When considering a motion to dismiss a complaint for
failure to state a claim upon which relief can be granted
pursuant to Federal Rule of Civil Procedure 12(b)(6), a court
must accept all well-pleaded allegations in the complaint as
true and view them in the light most favorable to the plaintiff.
Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005).

It is well

settled that a pleading is sufficient if it contains “a short
and plain statement of the claim showing that the pleader is
entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

“While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, a
plaintiff’s obligation to provide the ‘grounds’ of his
‘entitle[ment] to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do . . . .”

Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (alteration in original)
(citations omitted) (first citing Conley v. Gibson, 355 U.S. 41,
5

47 (1957); Sanjuan v. Am. Bd. of Psychiatry & Neurology, Inc.,
40 F.3d 247, 251 (7th Cir. 1994); and then citing Papasan v.
Allain, 478 U.S. 265, 286 (1986)).
To determine the sufficiency of a complaint, a
court must take three steps.
First, the court must
“tak[e] note of the elements a plaintiff must plead to
state a claim.”
Second, the court should identify
allegations that, “because they are no more than
conclusions, are not entitled to the assumption of
truth.” Third, “whe[n] there are well-pleaded factual
allegations, a court should assume their veracity and
then determine whether they plausibly give rise to an
entitlement for relief.”
Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011) (alterations
in original) (citations omitted) (quoting Ashcroft v. Iqbal, 556
U.S. 662, 664, 675, 679 (2009)).
A district court, in weighing a motion to dismiss, asks
“not whether a plaintiff will ultimately prevail but whether the
claimant is entitled to offer evidence to support the claim.”
Twombly, 550 U.S. at 563 n.8 (quoting Scheuer v. Rhoades, 416
U.S. 232, 236 (1974)); see also Iqbal, 556 U.S. at 684 (“Our
decision in Twombly expounded the pleading standard for ‘all
civil actions’ . . . .”); Fowler v. UPMC Shadyside, 578 F.3d
203, 210 (3d Cir. 2009) (“Iqbal . . . provides the final nail in
the coffin for the ‘no set of facts’ standard that applied to
federal complaints before Twombly.”).

“A motion to dismiss

should be granted if the plaintiff is unable to plead ‘enough
facts to state a claim to relief that is plausible on its

6

face.’”

Malleus, 641 F.3d at 563 (quoting Twombly, 550 U.S. at

570).
A court in reviewing a Rule 12(b)(6) motion must only
consider the facts alleged in the pleadings, the documents
attached thereto as exhibits, and matters of judicial notice.
S. Cross Overseas Agencies, Inc. v. Kwong Shipping Grp. Ltd.,
181 F.3d 410, 426 (3d Cir. 1999).

A court may consider,

however, “an undisputedly authentic document that a defendant
attaches as an exhibit to a motion to dismiss if the plaintiff’s
claims are based on the document.”

Pension Benefit Guar. Corp.

v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.
1993).

If any other matters outside the pleadings are presented

to the court, and the court does not exclude those matters, a
Rule 12(b)(6) motion will be treated as a summary judgment
motion pursuant to Rule 56.
C.

Fed. R. Civ. P. 12(b).

Analysis

ERISA confers standing upon a participant in, or
beneficiary of, an ERISA plan by allowing that participant or
beneficiary to bring a civil action 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.”

29 U.S.C. § 1132(a)(1)(B).

This

provision also confers standing upon a medical provider to sue
the plan through an assignment from a plan participant.
7

American Chiropractic Ass'n v. American Specialty Health Inc.,
625 F. App’x 169, 174–75 (3d Cir. 2015) (quoting CardioNet, Inc.
v. CIGNA Health Corp., 751 F.3d 165, 176 n.10 (3d Cir. 2014)).
An assignment of the right to payment assigns the right to
enforce that right by bringing suit under ERISA to collect money
owed.

Id. (citing N. Jersey Brain & Spine Ctr. v. Aetna, Inc.,

801 F.3d 369 (3d Cir. 2015)).

Such an assignment “serves the

interest of patients by increasing their access to care” and
reduces the likelihood of medical providers “billing the
beneficiary directly and upsetting his finances.”

Id. (quoting

CardioNet, 751 F.3d at 179 (quotation marks omitted)).
In this case, Defendants argue that the Plan participant’s
assignment of benefits to Plaintiff is invalid under the
explicit anti-assignment provision in the Plan, and Plaintiff
therefore lacks standing to bring its claims.

Plaintiff

disagrees, and has presented several alternative bases for why
its claims may proceed: (1) waiver, (2) unenforceable ambiguous
terms, (3) estoppel, and (4) that JV’s assignment of benefits
constitutes a power of attorney, which places Plaintiff into the
shoes of JV and outside of the anti-assignment provision.
first step in the analysis is to look at the Plan’s antiassignment provision.
The Plan states in relevant part:
Non-Assignment of Claims.
8

The

A Claimant may not assign his/her Claim under the Plan to a
Nonparticipating Provider without the Plan’s express
written consent. Regardless of this prohibition on
assignment, the Plan may, in its sole discretion, pay a
Nonparticipating Provider directly for Covered Expenses
rendered to a Claimant. Payment to a Nonparticipating
Provider does not constitute a waiver, and the Plan retains
a full reservation of all rights and defenses.
(Docket No. 16-4 at 77.) 1
It is not in dispute that JV did not assign his claims
under the Plan to Plaintiff, a nonparticipating provider, with
the Plan’s express written consent.

Defendants therefore argue

that JV’s assignment of claims to Plaintiff is not valid.
Despite this explicit condition on the assignment of claims
in the Plan, Plaintiff argues that several factors make the
anti-assignment provision unenforceable.

First, Plaintiff

argues that the Plan waived its right to enforce the antiassignment provision because it paid some of Plaintiff’s claims,
including claims that were initially denied but then paid after
Plaintiff’s appeal.

Second, Plaintiff argues that the Plan

should be estopped from enforcing the provision based on similar
reasoning to the waiver argument.

Third, Plaintiff argues that

the anti-assignment provision is ambiguous and therefore
unenforceable because another provision in the Plan allows the
Plan participant “or his authorized representative” to appeal an

1 The

Court may consider the Plan documents because they are the
basis of Plaintiff’s claims. Pension Benefit Guar. Corp. v.
White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).
9

adverse benefits decision, which Plaintiff contends contradicts
the anti-assignment clause.

Finally, Plaintiff argues that the

AOB constitutes a power of attorney, and through that power of
attorney, JV conferred on to Plaintiff as his agent the
authority to assert all claims JV might have against Defendants.
The Court finds Plaintiff’s arguments to be unavailing, and
they are all squarely addressed by the Third Circuit in American
Orthopedic & Sports Med. v. Indep. Blue Cross Blue Shield, 890
F.3d 445, 453 (3d Cir. 2018).

There, when faced with competing

arguments for why anti-assignment provisions in ERISA-governed
health benefit plans should or should not be enforceable, the
Third Circuit noted that “ERISA leaves the assignability or nonassignability of health care benefits under ERISA-regulated
welfare plans to the negotiations of the contracting parties.”
American Orthopedic, 890 F.3d at 453 (quotations and citation
omitted).

The Third Circuit found “no compelling reason to

stray from the black-letter law that the terms of an unambiguous
private contract must be enforced,” and concluded that “antiassignment clauses in ERISA-governed health insurance plans as a
general matter are enforceable.”

Id. (quotations and citations

omitted).
Under that guiding premise, the Third Circuit evaluated the
anti-assignment clause at issue and the plaintiff’s arguments
for why it was not enforceable.

The anti-assignment provision
10

provided: “The right of a Member to receive benefit payments
under this Program is personal to the Member and is not
assignable in whole or in part to any person, Hospital, or other
entity.”

Id. (citation omitted).

Plaintiff, the health care provider to which its patient,
Joshua the plan participant, assigned his right to payment,
argued that the defendant insurers waived their ability to
enforce the anti-assignment provision because they “accepted and
processed the claim form, issued a check to Joshua, and failed
to raise the anti-assignment clause as an affirmative defense
during the internal administrative appeals process.”
453-54.

Id. at

The Third Circuit disagreed.

Noting that a waiver requires a “clear, unequivocal and
decisive act of the party with knowledge of such right and an
evident purpose to surrender it,” 2 the Third Circuit found that
“routine processing of a claim form, issuing payment at the outof-network rate, and summarily denying the informal appeal do
not demonstrate an evident purpose to surrender an objection to
a provider’s standing in a federal lawsuit.”

2

Id. at 454 (citing

The Third Circuit applied Pennsylvania law because of the
plan’s choice-of-law clause, American Orthopedic, 890 F.3d at
453, but the standard for waiver is the same in New Jersey, see
Scibek v. Longette, 770 A.2d 1242, 1250 (N.J. Super. Ct. App.
Div. 2001) (“Waiver involves the intentional relinquishment of a
known right and must be evidenced by a clear, unequivocal and
decisive act from which an intention to relinquish the right can
be based.”).
11

several cases from the District of New Jersey for the same
proposition).
The Third Circuit also addressed the plaintiff’s argument
that the document the plan participant signed, titled
“Assignment of Benefits & Ltd. Power of Attorney,” reflected
that in addition to assigning to the plaintiff his right to
pursue payment for claims under his health insurance plan for
the medical care plaintiff provided, Joshua also granted to the
plaintiff a limited power of attorney to recover the payment on
his behalf through an arbitration or lawsuit.

Id. at 448.

The Third Circuit ultimately concluded that the plaintiff
had waived that argument by not raising the issue in its opening
or reply brief, and instead only addressing it in supplemental
briefing ordered by the court.

Id. at 455.

But before doing

so, the Third Circuit explained how a power of attorney is
different from an assignment of benefits.

Id. at 454-55.

Assignments and powers of attorney differ in important
respects with distinct consequences for the power of a plan
trustee to contractually bind an insured. An assignment
purports to transfer ownership of a claim to the assignee,
giving it standing to assert those rights and to sue on its
own behalf. Thus, a plan trustee can limit the ability of
a beneficiary to assign claims because, among the parties'
“power to limit the rights created by their agreement,”
Restatement (Second) of Contracts § 322 cmt. a (1981), is
the power to restrict ownership interest to particular
holders. A power of attorney, on the other hand, “does not
transfer an ownership interest in the claim,” but simply
confers on the agent the authority to act “on behalf of the
principal.”

12

As these principles apply here, our holding today that the
anti-assignment clause is enforceable means that Joshua, as
plan beneficiary, did not transfer the interest in his
claim, but it does not mean that Joshua cannot grant a
valid power of attorney. To the contrary, because he
retains ownership of his claim, Joshua, as principal, may
confer on his agent the authority to assert that claim on
his behalf, and the anti-assignment clause no more has
power to strip Appellant of its ability to act as Joshua’s
agent than it does to strip Joshua of his own interest in
his claim.
Id. (some internal quotations and citations omitted).
Thus, the teachings of the Third Circuit in American
Orthopedic are: (1) the terms of an unambiguous private contract
must be enforced, (2) unambiguous anti-assignment clauses in
ERISA-governed health benefit plans are enforceable, (3) routine
processing of claims does not amount to an insurer’s waiver to
enforce an anti-assignment clause, and (4) a valid antiassignment clause does not preclude a medical provider who holds
a valid power of attorney from asserting the participant’s
claims against the ERISA plan.
Applying those lessons to this case, a participant in
Defendants’ Plan may not assign his claims to a nonparticipating
provider without the Plan’s express written consent.

This

language is clear and unambiguous on its face, as well as by
comparison to dozens of almost identical provisions at issue in
other cases.

See, e.g., id. at 454 (citing cases).

That a

provision in the Plan regarding appeals of adverse claim
determinations may be advanced by a claimant’s “authorized
13

representative” does not cause this explicit pre-condition to
assignment of claims to be unclear.

See, e.g., Drzala v.

Horizon Blue Cross Blue Shield, 2016 WL 2932545, at *3 (D.N.J.
2016) (citing In re Unisys Corp. Retiree Med. Benefits ERISA
Litig., 58 F.3d 896, 903 (3d Cir. 1995); Taylor v. Cont'l Grp.
Change in Control Severance Pay Plan, 933 F.2d 1227, 1234 (3d
Cir. 1991)) (other citation omitted)) (“A term is ambiguous
where the language is susceptible to more than one reasonable
interpretation. In determining whether a particular clause in a
plan document is ambiguous, courts must first look to the plain
language of the document.

If the plain language is clear on its

face, then the terms of the plan control and courts may not look
to other evidence.”).

Because the anti-assignment clause has

only one reasonable interpretation, and because JV did not
obtain the Plan’s express written consent to enter into the AOB
with Plaintiff, the Plan’s prohibition on assigning the payment
of JV’s claim to Plaintiff is valid, and must be enforced.
Plaintiff’s arguments that because the Plan processed some
of Plaintiff’s claims Defendants waived the anti-assignment
provision’s application, or that Defendants’ enforcement of the
provision must be estopped, are without teeth. 3

3

As the Third

Under New Jersey common law, estoppel differs from waiver in
that waiver is a unilateral relinquishment of a right, while
estoppel is based on the reliance of one individual upon
another. Scibek v. Longette, 770 A.2d 1242, 1250 (N.J. Super.
14

Circuit instructed, regular processing of claims, even after an
internal appeals process, does not constitute a waiver.

Here,

that holding is reinforced by the Plan’s explicit language to

Ct. App. Div. 2001). To establish a claim of equitable
estoppel, the claiming party must show that the alleged conduct
was done, or representation was made, intentionally or under
such circumstances that it was both natural and probable that it
would induce action. Further, the conduct must be relied on,
and the relying party must act so as to change his or her
position to his or her detriment. Miller v. Miller, 478 A.2d
351, 355, (N.J. 1984). “The doctrine is designed to prevent
injustice by not permitting a party to repudiate a course of
action on which another party has relied to his detriment.”
Haskins v. First American Title Ins. Co., 866 F. Supp. 2d 343,
348 (D.N.J. 2012). To the extent that Plaintiff’s common law
estoppel claim is even viable, see Pilot Life Ins. Co. v.
Dedeaux, 481 U.S. 41, 44–45 (1987) (holding that ERISA preempts
any and all state law claims “insofar as they may now or
hereafter relate to any employee benefit plan covered by
ERISA”), that claim fails because the express terms of the Plan
clearly delineate the parameters of a plan beneficiary’s
assignment of claims, and Plaintiff’s reliance on the Plan’s
payment of other claims does not amount to an “injustice” since
Plaintiff (1) could have obtained the Plan documents to
definitively determine its right to the payment of JV’s
benefits, and (2) it obtained payments that it ultimately may
not have been entitled to in the first place based on JV’s
failure to obtain the Plan’s written consent to assign his
claims.
Separate from a common law cause of action for equitable
estoppel, under ERISA, a beneficiary can make out a claim for
equitable relief based on a theory of equitable estoppel, and to
succeed under this theory of relief, an ERISA plaintiff must
establish (1) a material representation, (2) reasonable and
detrimental reliance upon the representation, and (3)
extraordinary circumstances. Pell v. E.I. DuPont de Nemours &
Co. Inc., 539 F.3d 292, 300 (3d Cir. 2008) (citing 29 U.S.C. §
1132(a)(3)) (other citation omitted). This claim cannot be
advanced by Plaintiff because it is not a plan beneficiary, and,
as discussed below, Plaintiff does not hold a valid power of
attorney to assert this claim on JV’s behalf.
15

the same effect – “Payment to a Nonparticipating Provider does
not constitute a waiver, and the Plan retains a full reservation
of all rights and defenses.”

This, too, is an unambiguous and

therefore enforceable contract term that precludes the finding
that payment of some of Plaintiff’s claims waives Defendants’
right to invoke the anti-assignment provision for other claims.
With regard to Plaintiff’s contention that the assignment
of benefits constitutes a power of attorney, that argument fails
for two reasons.
in its complaint.

First, Plaintiff does not advance that claim
Thus, the Court cannot consider it.

Recognizing this deficiency, Plaintiff requests leave to amend
its complaint to assert claims pursuant to the purported power
of attorney.

Such an amendment would be futile, however.

The second reason Plaintiff’s power of attorney argument
fails is because the assignment of benefits does not constitute
a valid power of attorney under New Jersey law.

In New Jersey,

“power of attorney” “means a duly signed and acknowledged
written document in which a principal authorizes an agent to act
on his behalf.”

N.J.S.A. 46:2B-10.

“A power of attorney must

be in writing, duly signed and acknowledged in the manner set
forth in R.S.46:14-2.1.”

N.J.S.A. 46:2B–8.9.

The maker of the

power of attorney “shall appear before an officer specified in

16

R.S.46:14-6.1 4 and acknowledge that it was executed as the
maker’s own act.”

N.J.S.A. 46:14-2.1.

“The officer taking an

acknowledgment or proof shall sign a certificate stating that
acknowledgment or proof,” and the certificate must also state:
“(1) that the maker or the witness personally appeared before
the officer; (2) that the officer was satisfied that the person
who made the acknowledgment or proof was the maker of or the
witness to the instrument; (3) the jurisdiction in which the
acknowledgment or proof was taken; (4) the officer's name and
title; (5) the date on which the acknowledgment was taken.”

Id.

The document that Plaintiff wishes to construe as a power
of attorney is titled “Assignment of Benefits / Release of
Medical Information.”

(Docket No. 1-1 at 6.)

Putting aside

that the content of the document only relates to JV’s permission
for Plaintiff to release his medical information to his
insurance company and for Plaintiff to seek payment from his
insurance company, and not to act on his behalf in a broader
capacity to encompass other ERISA-based claims that are not
barred by the anti-assignment clause, the formalities of a valid
power of attorney are not met.

The document is signed by JV and

4

Officers who are authorized to take acknowledgements are, inter
alia, “(1) an attorney-at-law; (2) a notary public; (3) a county
clerk or deputy county clerk; (4) a register of deeds and
mortgages or a deputy register; [and] (5) a surrogate or deputy
surrogate.” N.J.S.A. 46:14–6.1.
17

underneath his signature is typed “Staff present: Tara Peak,
CADC, INTERN.”

(Id. at 7.)

There is no indication that the

staff member is an “officer” under N.J.S.A. 46:14–6.1, and the
staff member provides no signature and the other requirements of
a proper acknowledgement under N.J.S.A. 46:14-2.1.

“An

acknowledgment is not an insignificant formality.”

In re

Adelphia Communications Corp. Securities and Derivative
Litigation, 2011 WL 6434009, at *2 (S.D.N.Y. 2011) (analyzing a
purported power of attorney under New Jersey law and holding
that the plain language of the New Jersey statute clearly
requires acknowledgement by a designated officer for a power of
attorney to be valid).
Even though American Orthopedic found that a valid
assignment of benefits clause does not preclude a plan
beneficiary’s medical provider from advancing claims against a
plan pursuant to a power of attorney, in order for the medical
provider to do so it must actually hold a valid power of
attorney.

The “Assignment of Benefits / Release of Medical

Information” document signed by JV does not satisfy the
requirements of a power of attorney under New Jersey law.
Consequently, any amendment to the complaint to assert claims
based on this document as a power of attorney would be futile.
CONCLUSION
For the reasons expressed above, the anti-assignment
18

provision in Defendants’ Plan is valid and enforceable.

Because

JV did not obtain written consent from the Plan to assign his
claims to Plaintiff, Plaintiff does not hold a valid assignment
through which to pursue its claims here.

Similarly, Plaintiff

does not hold a valid power of attorney and cannot prosecute
JV’s claims on his behalf.

Consequently, Defendants’ motion to

dismiss Plaintiff’s complaint must be granted. 5
An appropriate Order will be entered.

Date: December 4, 2018
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

5 Plaintiff’s

second count for Defendants’ alleged breach of
fiduciary duty and for equitable relief fails for the same
Plaintiff’s arguments concerning waiver, estoppel, and the
purported power of attorney fail.
19