Shuriz Hishmeh, M.D., PLLC v. Aetna Health Inc.
ORDER granting 11 Motion to Dismiss for Failure to State a Claim. SO ORDERED that defendant's motion to dismiss (Docket Entry 11) is GRANTED, and Plaintiff's claims are DISMISSED WITH PREJUDICE. The Clerk of the Court is respectfully di rected to enter judgment in favor of Defendant and mark this matter CLOSED. For the purposes of any appeal, the Clerk of the Court is also directed to amend the caption to substitute Aetna Life Insurance Company for Aetna Health Inc. as the defendant in this case. Ordered by Judge Joanna Seybert on 9/25/2017. (Florio, Lisa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
SHURIZ HISHMEH, M.D., PLLC, as
Assignee of Barbara D. Rydlewski,
MEMORANDUM & ORDER
-againstAETNA HEALTH INC., doing business as
Michael G. Levin, Esq.
Levin & Chetkof LLP
265 Post Avenue, Suite 290
Westbury, New York 11590
9/25/2017 9:36 am
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
Christopher Abatemarco, Esq.
85 Livingston Avenue
Roseland, New Jersey 07068
SEYBERT, District Judge:
Plaintiff Shuriz Hishmeh, M.D., PLLC (“Dr. Hishmeh”)
filed this lawsuit under the Employee Retirement Income Security
Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001 et seq., alleging that
Defendant Aetna Life Insurance Company1
refuses to make full
payment for medical services rendered for a patient.
health care plan, however, prohibits any assignments of payment to
“out-of-network” health care providers like Plaintiff.
The Clerk of the Court is respectfully directed to amend the
caption to substitute “Aetna Life Insurance Company” as the
defendant. (See Def.’s Br., Docket Entry 11-1, at 1, 3 n.1.)
this provision and the Second Circuit’s decision in McCulloch
Orthopaedic Surgical Servs., PLLC v. Aetna Inc., 857 F.3d 141 (2d
(Docket Entry 11.)
Dr. Hishmeh, an orthopedic physician, is an "out-of-
governed by ERISA.
(Compl., Docket Entry 1-1, ¶¶ 1–2, 23.)
Rydlewski allegedly assigned her rights and benefits under the
Plan to Dr. Hishmeh.
(Id. ¶¶ 7, 17.) Aetna refused to make full
payment and Dr. Hishmeh filed this lawsuit through his medical
reimbursement for the medical services he rendered.
(Id. ¶ 27.)
But Aetna’s health care plan has an anti-assignment
provision for “out-of-network” health care providers:
Coverage may be assigned only with the written
consent of Aetna. To the extent allowed by
law, Aetna will not accept an assignment to an
out-of-network provider, provider or facility
including but not limited to, an assignment
The benefits due under this group
The right to receive payments due under
this group insurance policy; or
The Court accepts all well-pled facts as true and draws all
reasonable inferences in Plaintiff’s favor. Cleveland v. Caplaw
Enters., 448 F.3d 518, 521 (2d Cir. 2006).
Any claim you make for damages resulting
from a breach or alleged breach, of the
terms of this group insurance policy.
(Plan, Def.’s Br. Ex. C, Docket Entry 11-5, at 6 (emphasis added).)3
Dr. Hishmeh does not allege that Aetna provided written consent of
the assignment, but at any rate, Aetna issued a partial payment to
(Compl. ¶ 27.)
In moving to dismiss the Complaint,
Aetna contends that Dr. Hishmeh lacks standing to sue based on
this anti-assignment provision, (Def.’s Br. at 8–12).
alternative, Aetna argues that Dr. Hishmeh failed to exhaust
(Def.’s Br. at 12–14.)
Standard of Review
To avoid dismissal, a complaint must plead “enough facts
to state a claim to relief that is plausible on its face.”
Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974,
167 L. Ed. 2d 929 (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
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.
Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009).
While conducting this analysis, this Court may consider
“any written instrument attached to [the complaint] as an exhibit,
This page number corresponds with CM/ECF’s numeration of Docket
materials incorporated in it by reference, and documents that,
Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004)
(internal quotation marks and citations omitted).
Thus, the Court
will consider Aetna’s health care plan documents.
See Chambers v.
Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (noting that
a document is “integral” if the complaint “relies heavily upon its
“A person owed benefits under ERISA may bring a civil
Prof’l Orthopaedic Assocs., PA v. 1199SEIU
Nat’l Benefit Fund, --- F. App’x ----, 2017 WL 3887988, at *1 (2d
Pertinently, the Second Circuit allows health care providers to
bring claims under Section 502 so long as “there is a valid
assignment [from the patient] that comports with the terms of the
The Second Circuit Court of Appeals recently reviewed
Aetna’s anti-assignment provision in an unrelated case.
McCulloch Orthopaedic Surgical Servs., PLLC v. Aetna Inc., 857
F.3d 141 (2d Cir. 2017) (analyzing whether a promissory-estoppel
claim was preempted).
There, the court determined that an “out4
of-network” health care provider did not have a valid assignment
under Aetna’s health care plan.
Id. at 148.
policy language is clear: although “[c]overage may be assigned
. . . with the written consent of Aetna[,] . . . Aetna will not
accept an assignment to an out-of-network provider.” (Plan at 6.)
What is more, the Second Circuit implicitly rejected
Plaintiff’s argument (Pl.’s Br. at 8–9) that a partial payment
voids the anti-assignment provision, McCulloch, 857 F.3d at 144,
148 (concluding that assignment was prohibited even though Aetna
partial payment); (see also Plan at 9 (“Aetna has the right to pay
any health benefits to the service provider.”)). Nor did the court
state that the anti-assignment provision constitutes a waiver
under New York law, (Pl.’s Br. at 11–12), or invokes New York
McCulloch, 857 F.3d at 145 (quoting Montefiore Med. Ctr. v.
Teamsters Local 272, 642 F.3d 321, 327 (2d Cir. 2011)); see also
Devlin v. Empire Blue Cross & Blue Shield, 274 F.3d 76, 85 n.5 (2d
Plaintiff contends, (Pl.’s Br. at 10-11), that Aetna was required
to notify Dr. Hishmeh that it did not accept the assignment--an
argument rejected by the Southern District in Mbody Minimally
Invasive Surgery, P.C. v. Empire Healthchoice HMO, Inc., No. 13CV-6551, 2014 WL 4058321 (S.D.N.Y. Aug. 15, 2014) (“That defendants
did not raise the anti-assignment provision at the time they denied
Plaintiffs’ argument is simply another way of re-arguing that
defendants waived the anti-assignment provision by making direct
In light of the above, Dr. Hishmeh’s sole cause of
action is DISMISSED WITH PREJUDICE.4
Leave to Amend
“When a motion to dismiss is granted, the usual practice
is to grant leave to amend the complaint,” Hayden v. Cty. of
Nassau, 180 F.3d 42, 53 (2d Cir. 1999), unless doing so would be
futile, Darden v. DaimlerChrysler N. Am. Holding Corp., 191 F.
Supp. 2d 382, 399 (S.D.N.Y. 2002).
Based on binding Circuit
precedent, the Court concludes that further amendments would be
futile and thus DENIES leave to amend.
In light of the McCulloch decision, the Court need not analyze
Aetna’s alternative argument that Plaintiff failed to exhaust
its administrative remedies. But the Court notes that Plaintiff
failed to plead that he exhausted administrative remedies or
that doing so would be futile.
GRANTED, and Plaintiff’s claims are DISMISSED WITH PREJUDICE.
Clerk of the Court is respectfully directed to enter judgment in
favor of Defendant and mark this matter CLOSED.
For the purposes
of any appeal, the Clerk of the Court is also directed to amend
the caption to substitute “Aetna Life Insurance Company” for “Aetna
Health Inc.” as the defendant in this case.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
25 , 2017
Central Islip, New York
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