United States District Court, N.D. Illinois, Eastern Division
ADVANCED AMBULATORY SURIGAL CENTER, INC., an Illinois Corporation, Plaintiff,
CONNECTICUT GENERAL LIFE INSURANCE CO., a Delaware Corporation, Defendant.
MEMORANDUM OPINION AND ORDER
D. Leinenweber, United States District Court Judge
the Court is Defendant's Motion for Partial Summary
Judgment [ECF No. 89]. For the reasons stated below, the
Court grants Defendant's Motion.
following facts are undisputed unless noted otherwise.
Plaintiff Advanced Ambulatory Surgical Center, Inc.
(“AASC”) is a state-licensed outpatient surgery
center located in Chicago, Illinois. (ECF No. 101
(“Pl.'s SAUF”) ¶ 1 & Ex. 1 ¶
3.) When a surgeon wants to perform a procedure at AASC, she
submits paperwork, including a photocopy of the patient's
health insurance card. (ECF No. 90 (“Def.'s
SUF”) ¶¶ 30-31.) Before it renders any
services, AASC seeks to verify the patient's insurance
coverage with respect to the planned procedure by calling the
company who issued the patient's insurance policy or, as
the case may be, administers the policy's benefits.
(Pl.'s SAUF ¶ 2.) Indeed, AASC rarely treats
patients who lack insurance. (Campos Tr. 14:5-15; Rubio Tr.
21:13-23.) During these calls, AASC employees obtain the
patient's basic benefits information and record it on a
one-page insurance verification form. (Def.'s SUF ¶
31; Pl.'s SAUF ¶ 3; see, Id. at Ex. 1.)
AASC treats patients insured under health benefit plans
administered by Defendant Connecticut General Life Insurance
Company, Inc. (“Cigna”), although it is an
out-of-network provider with respect to Cigna plans.
(Def.'s SUF ¶ 1.)
provides claims administration and insurance services for
health benefit plans that employers offer. Under Cigna plans,
covered individuals have the option to receive medical care
from in-network providers, who have contracted with Cigna to
accept a negotiated schedule of fees for medical services,
and out-of-network providers, who formulate their own menu of
services and fees. (Def.'s SUF ¶¶ 5-6.) To be
eligible for benefits, a Cigna plan member typically must pay
a portion of the covered health care expenses either in the
form of coinsurance (a fixed percentage of the covered
charges), a copay (a flat per-service fee), or a deductible
(the total dollar amount of covered expenses that the member
must pay during the calendar year before the plan's
benefits kick in). (Id. ¶¶ 7, 9.)
nudge policyholders toward in-network providers, most
insurance companies impose higher patient contribution
requirements (known as “cost shares”) with
respect to services rendered by out-of-network providers.
Seeking a competitive advantage, some out-of-network
providers disregard these required patient contributions and
instead engage in “fee forgiveness” - billing
patients nothing and simply accepting reimbursement under a
plan as payment in full. (Def.'s SUF ¶ 10.) This
practice actually reverses the intended incentives, as
patients who receive treatment from out-of-network fee
forgivers actually pay less out-of-pocket than they otherwise
would for the same in-network health care services. To
discourage fee forgiveness, many benefit plans, such as those
administered by Cigna, refuse to cover “charges which
you are not obligated to pay or for which you are not billed
or for which you would not have been billed except that they
were covered under this plan.” (Id. ¶
11.) In addition, Cigna tries to parry the lunge of fee
forgiveness by limiting coverage to “covered expenses,
” defined as expenses actually incurred by the patient
after he or she becomes insured under a given plan.
(Id. ¶ 12.)
2005, Cigna has precipitated all benefits verification calls
with a disclaimer. Until February 2013, Cigna's
The following information does not guarantee coverage or
payment. The governing document for a patient's coverage
is their Summary Plan Description. Payment for services will
be based on medical necessity, plan provisions, and
eligibility at the time of service.
(Def.'s SUF ¶ 25.) Cigna slightly altered the
wording of the disclaimer in February 2013, and since then it
By continuing with this call, you understand, accept, and
agree that the following covered services information does
not guarantee coverage or payment and is subject to all
benefit plan provisions. Please refer to the Summary Plan
Description for coverage. Payment for services will be based
on medical necessity, plan provisions, including limitations
and exclusions, and eligibility at the time of service.
(Id. ¶ 26.) Both disclaimers ran before the
inquiring provider could access Cigna's automated
benefits system or speak to a live support representative.
(Id. ¶ 27.)
the time period at issue, two AASC employees called Cigna to
verify patient benefits prior to a scheduled procedure: Yuri
Campos (“Campos”) and Kathy Rubio
(“Rubio”). Campos acknowledged that, whenever she
called Cigna, she heard a disclaimer warning that payment on
any particular claim was not guaranteed; Rubio could not
recall the content of the disclaimer at her deposition but
did not deny hearing it whenever she called Cigna.
(Id. ¶ 38.) Both remained on the line long
enough to speak with a live Cigna agent who could verify the
patient's insurance information. Joanna Brzostowska
(“Brzostowska”), who oversees the company's
billing and collection processes, did not supervise Campos or
Rubio while they were making these calls and thus never heard
what Cigna's agents said in response to their questions.
(Pl.'s SAUF at Ex. 1 ¶¶ 1-2; Brzostowska Tr.
identifying various personal information of the patient,
Campos or Rubio recorded what the Cigna agent told them about
the patient's out-of-network plan benefits on the
patient's insurance verification form, including the
patient's deductible, amount of deductible met,
“Coverage (%), ” maximum out-of-pocket amount,
amount of the maximum met, and annual maximum for outpatient
surgery (if applicable). (Def.'s SUF ¶ 31; Pl.'s
SUF at Ex. 1.) In addition, they would sometimes indicate on
the form whether the insurer's reimbursement was based on
“Usual & Customary” rates or Medicare rates
and whether the plan was employer-sponsored. (Ibid.)
Finally, they would fill in a portion of the form indicating
exclusions or restrictions on the policy, either for surgical
procedures or specific body parts or specialties.
these calls, Cigna's representatives made no promises or
guarantees of payment, and neither Campos nor Rubio were led
to believe that AASC was certain to receive any specific
reimbursement for the surgical services it would ultimately
render. (Def.'s SUF ¶¶ 32-33; see
also, Brzostowska Tr. 265:7-18 (denying
“aware[ness] of any insurance verification call in
which a Cigna customer service representative promised or
agreed to pay all or part of the billed charges”).)
Neither provided Cigna with estimates or exact amounts of
billed charges, because when they placed these calls AASC did
not know what its billed charges would be. (Ibid.)
Neither Campos nor Rubio asked Cigna for reimbursement
estimates, because Cigna would not release that information.
(Id. ¶ 34.) Campos and Rubio testified to their
general understanding that the benefits information Cigna
verified, such as the percentage they recorded on the
verification forms in the “Coverage (%)” field,
conveyed to them that the patients' procedures would be
covered at those levels. (Id. ¶ 39.) Campos
believed that this percentage referred to the allowed amount;
Rubio understood it to apply either to the usual and
customary amount determined by the insurance company or a
Medicare-based amount; and Brzostowska generally ...