In Health Care Service Corporation v Methodist hospitals of Dallas, no. 15- 101546, the Fifth Circuit grappled with whether the Texas Prompt Payment Act (‘TPPA’) applies to third-party administrators of self-funded ERISA (i.e. Certain employer-provided health benefit) plans.
The Texas Prompt Payment act
The TPPA requires insurers to pay unproblematic, or ‘clean’ claims submitted by preferred providers within 45 days for non electronically filed claims or 30 days for electronically-filed claims. The TPPA applies to ‘each preferred provider benefit plan in which an insurer provides, through the insurer’s health insurance policy, for the payment of a level of coverage …’. It further defines ‘insurer’ as ‘a life, health, and accident insurance company, health and accident insurance company, health insurance company, or other company operating under Chapter 841, 842, 884, 885, 982, or 1501 [of the Texas Insurance Code], that is authorised to issue, deliver, or issue for delivery in this state health insurance policies.’
The dispute and its resolution
In anticipation of Methodist filing suit for purported violations of the TPPA, Health Care Service Corporation d/b/a Blue Cross Blue Shield Texas (BCBSTX), filed suit requesting a declaration that: (1) the TPPA does not apply to thirdparty administrators of self-funded ERISA plans; and (2) ERISA pre-empts the TPPA such that the third-party administrators of self-funded ERISA plans cannot be held liable for TPPA violations. Methodist counterclaimed for over US$31 million in penalties, interest, and attorneys’ fees. The trial court sided with BCBSTX.
On appeal, Methodist argued that the TPPA applied to BCBSTX because it was an ‘insurer’ subject to the TPPA. BCBSTX argued that while it does act as an insurer, the actions complained about by Methodist were undertaken by BCBSTX in its role as a third-party administrator under Chapter 4151 of the Texas Insurance Code, not in its role as an insurer under other chapters of the Texas Insurance Code.
Methodist argued further that the word ‘provides’ in the TPPA was broad enough to encompass not only the entity with the ultimate financial burden of payment, but to the thirdparty administrator who facilitates that payment. Moreover, Methodist contended, BCBSTX maintains a ‘health insurance policy’ by maintaining administrator agreements and preferred provider network agreements.
The fifth circuit disagreed with Methodist. The court held that, even if BCBSTX were an ‘insurer,’ it did not ‘provide[ ] ... For ... Payment.’ The court focused on the fact that when discussing third-party administrators, the TPPA describes their function as ‘process[ing] or pay[ing] claims,’ which the court said suggests that the ‘provides ... For ... Payment’ phrase does not encompass payments by others that are facilitated or distributed by a third-party administrator.
Perhaps more importantly, the court found that even if BCBSTX ‘provide[d] ... For ... Payment,’ it did not do so through its ‘health insurance policy.’ The TPPA defines ‘health insurance policy’ as ‘a group or individual insurance policy, certificate, or contract providing benefits for medical or surgical expenses incurred as a result of an accident or sickness.’ The court noted that, ‘any benefits [BCBSTX] furnished to beneficiaries derive[d] from the plans of others, wholly independent of any contractual relationship with BCBSTX’ and held that ‘BCBSTX, as an administrator, [did] not confer any benefits for medical expenses on beneficiaries and therefore does not provide for payment through its ‘health insurance policy.’’
The court also rejected the argument that the TPPA applied to BCBSTX by way of a provision extending the TPPA’s application to ‘a person ... With whom an insurer contracts to’ perform certain administrative services. The court highlighted the fact that in order for the TPPA to apply to BCBSTX by way of this provision, it would have to contract with an insurer. The court opined that self-funded health benefit plans and state government-sponsored health benefit plans did not fall within the aforementioned definition of ‘insurer’ because: (1) those plans do not operate under any of the insurance code chapters mentioned in that definition; and (2) the plans are not authorised to ‘issue, deliver, or issue for delivery’ health insurance policies in Texas. In other words, while self-funded and state government-sponsored benefit plans do provide health benefits to employees, they are not technically ‘insurance.’
The broader context: the ongoing controversy over the TPPA’s scope
This case is yet another chapter in the book of controversies over the breadth of the TPPA’s scope. Plaintiffs’ lawyers regularly test the boundaries of its scope, in large part thanks to the windfalls they can secure in the form of statutory penalties and the shifting of attorneys’ fees to a losing defendant.
A major success for the plaintiffs’ bar in this regard was Lamar Homes, Inc. v Mid-Continent Casualty Company, 242 s.w.3d 1 (Tex. 2007). There, the dispute focused on a different portion of the TPPA, which applies to ‘first-party claim[s],’ and is not limited to claims submitted by preferred providers in the health insurance context. The Texas Supreme Court held that this provision of the TPPA applied to defence costs an insured incurred in defending a lawsuit and for which the insurer was later found to have wrongfully denied coverage.
The court explained that its past decisions distinguished between a first-party claim, which ‘is stated when “an insured seeks recovery for the insured’s own loss,”’ and a thirdparty claim, which ‘is stated when “an insured seeks coverage for injuries to a third party”’ … ‘based upon that distinction,’ the court held, ‘a defense claim is a first-party claim because it relates solely to the insured’s own loss.’ Accordingly, the court held that a wrongful denial of a defense can lead to penalties under the TPPA.