Cigna, Aetna must face N.J. chiropractors’ underpayment lawsuit

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A screen displays the logo for Cigna Corp. on the floor at the New York Stock Exchange (NYSE) in New York, U.S., July 16, 2019. REUTERS/Brendan McDermid

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(Reuters) - A federal judge has allowed a lawsuit accusing health insurer Cigna of underpaying New Jersey chiropractors for services to go forward, while dismissing many of its claims without prejudice.

In an opinion on Wednesday, U.S. District Judge John Michael Vazquez in Newark, New Jersey, allowed breach of fiduciary duty claims by chiropractor Peter Scordilis to proceed, while dismissing claims by another chiropractor, Eric Loewrigkeit, and by a chiropractic association for lack of standing. The judge also dismissed claims against insurer Aetna and against healthcare cost management company MultiPlan Inc.

He gave the plaintiffs 30 days to file an amended complaint.

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"The plaintiffs are pleased with Judge Vazquez' decision and will be filing an amended complaint to address the technical pleading issues the judge detailed in his opinion in short order," plaintiffs' lawyer Jeffrey Randolph said in an email. "We intend to fully pursue the remaining claims to their conclusion once the amended complaint is filed."

Randolph said the amended complaint would include claims by Scordilis and Loewrigkeit, though not by the Association of New Jersey Chiropractors (ANJC).

MultiPlan, Cigna, Aetna and their respective attorneys Errol King of Phelps Dunbar, Joshua Simon of McDermott Will & Emery and Mark Schmidtke of Ogletree, Deakins, Nash, Smoak & Stewart did not immediately respond to requests for comment.

In their 2019 lawsuit, the plaintiffs said that Cigna and Aetna hired MultiPlan to "reprice" or reduce amounts reimbursed to out-of-network chiropractors, and gave patients explanations of benefits indicating the reduced prices and stating that practitioners could not collect any more than those prices.

They brought claims for breach of the Employee Retirement Income Security Act and for breach of fiduciary duty.

In moving to dismiss, the defendants argued that ANJC lacked standing because not all of its members had patients who were Aetna or Cigna beneficiaries, and that particular plans in dispute varied. Vazquez agreed, saying that the plaintiffs "fail to address the fact that there are different ERISA plans at issue, containing different billing requirements for out-of-network chiropractic care."

Vazquez further found that the complaint failed to identify that either doctor had a specific assignment of benefits from any Aetna beneficiary, or that Loewrigkeit had any specific assignment of benefits from an Aetna or Cigna beneficiary.

The judge also found that the plaintiffs had not plausibly asserted that MultiPlan had any authority to make coverage decisions, rather than simply performing an administrative function. Therefore, he said, it was not a fiduciary and must be dismissed.

Finally, Vazquez ruled that ERISA did not allow the plaintiffs to seek money damages from the court, but only declaratory judgment.

The case is The Association of New Jersey Chiropractors Inc et al v. Data iSight Inc et al, U.S. District Court, District of New Jersey, No. 19-cv-21973.

For plaintiffs: Jeffrey Randolph, Law Office of Jeffrey Randolph

For MultiPlan: Errol King of Phelps Dunbar and Rachel Hager of Finazzo Cossolini O'Leary Meola & Hager

For Cigna: Joshua Simon of McDermott Will & Emery and Penelope Taylor of McCarter & English

For Aetna: Mark Schmidtke and Fotini Karamboulis of Ogletree, Deakins, Nash, Smoak & Stewart

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Brendan Pierson reports on product liability litigation and on all areas of health care law. He can be reached at