Shuriz Hishmeh, M.D., PLLC v. Aetna Health Inc.

Filing 17

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
-------------------------------------X
SHURIZ HISHMEH, M.D., PLLC, as
Assignee of Barbara D. Rydlewski,
Plaintiff,
MEMORANDUM & ORDER
16-CV-5736(JS)(ARL)

-againstAETNA HEALTH INC., doing business as
Aetna,

Defendant.
-------------------------------------X
APPEARANCES
For Plaintiff:
Michael G. Levin, Esq.
Levin & Chetkof LLP
265 Post Avenue, Suite 290
Westbury, New York 11590
For Defendant:

FILED 
CLERK 

9/25/2017 9:36 am

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

Christopher Abatemarco, Esq.
Connell Foley
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.

Aetna’s

health care plan, however, prohibits any assignments of payment to
“out-of-network” health care providers like Plaintiff.

Based on

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.)
1

this provision and the Second Circuit’s decision in McCulloch
Orthopaedic Surgical Servs., PLLC v. Aetna Inc., 857 F.3d 141 (2d
Cir.

2017),

Complaint.

the

Court

GRANTS

Aetna’s

motion

to

dismiss

the

(Docket Entry 11.)
BACKGROUND2
Dr. Hishmeh, an orthopedic physician, is an "out-of-

network"

provider

(“Rydlewski”),

whose

governed by ERISA.

for

a

Aetna

patient,
health

care

Barbara
plan

D.

(the

Rydlewski
“Plan”)

is

(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
practice

as

the

alleged

assignee

of

Rydlewski

reimbursement for the medical services he rendered.

seeking

(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
of:
The benefits due under this group
insurance policy;
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).
2

2

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
Dr. Hishmeh.

(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).

In the

alternative, Aetna argues that Dr. Hishmeh failed to exhaust
administrative remedies.

(Def.’s Br. at 12–14.)
DISCUSSION

I.

Standard of Review
To avoid dismissal, a complaint must plead “enough facts

to state a claim to relief that is plausible on its face.”

Bell

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
misconduct alleged.”

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
Entry 11-5.
3

3

materials incorporated in it by reference, and documents that,
although

not

complaint.”

incorporated

by

reference,

are

integral

to

the

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
terms

and

effect”

(internal

quotation

marks

and

citation

omitted)).
II.

Anti-Assignment Provision
“A person owed benefits under ERISA may bring a civil

suit

to

recover

those

Section 502(a)(1)(B).”

benefits

pursuant

to

ERISA

Prof’l Orthopaedic Assocs., PA v. 1199SEIU

Nat’l Benefit Fund, --- F. App’x ----, 2017 WL 3887988, at *1 (2d
Cir.

Sept.

6,

2017)

(citing

29

U.S.C.

§ 1132(a)(1)(B)).

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
benefits plan.”

Id.

The Second Circuit Court of Appeals recently reviewed
Aetna’s anti-assignment provision in an unrelated case.

See

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.

Indeed, Aetna’s

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
reimbursed

the

“out-of-network”

health

care

provider

with

a

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
breach-of-contract

principles

“‘completely

preempts

any

‘duplicates,

supplements,

(id.

at

state-law
or

10).
cause

supplants

an

Indeed,
of

action

ERISA

ERISA
that

remedy.’”

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
Cir.

2001)

Instead,

(“[I]n

general

ERISA
common

cases,
law

state

law

principles

does

not

apply.”).

control.
Finally,

Plaintiff contends, (Pl.’s Br. at 10-11), that Aetna was required
to notify Dr. Hishmeh that it did not accept the assignment--an
5

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
or

reduced

provision

payment
was

not

is
a

irrelevant
factor

because

determining

the
the

anti-assignment
payment

amount.

Plaintiffs’ argument is simply another way of re-arguing that
defendants waived the anti-assignment provision by making direct
payments

to

rejected.”).

plaintiffs--an

argument

courts

have

repeatedly

In light of the above, Dr. Hishmeh’s sole cause of

action is DISMISSED WITH PREJUDICE.4
III.

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.
4

6

CONCLUSION
Defendant’s

motion

to

dismiss

(Docket

Entry 11)

GRANTED, and Plaintiff’s claims are DISMISSED WITH PREJUDICE.

is
The

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.

SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

September
25 , 2017
Central Islip, New York

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