United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Lynn Winmill Chief U.S. District Court Judge
before the Court is Defendant's Motion to Dismiss for
failure to exhaust administrative remedies (Dkt. 7). The
motion is fully briefed and the Court heard oral argument on
April 23, 2018. For the reasons explained below, the Court
will deny the motion.
Louie Abdilnour was an employee with Albertson's LLC, and
a participant in the Albertson's LLC Health and Welfare
Plan (the “Plan”). Compl. ¶ 4, Dkt.
1. Defendant Blue Cross of Idaho Health Service, Inc.
(“BCI”) is an Idaho insurance corporation, which
acts as the claims administrator and insurer of the
Albertson's LLC Health and Welfare Plan. Id.
about April 3, 2015, Plaintiff was transported by air
ambulance service from Mercy Medical Center in Williston,
North Dakota to Sanford Hospital in Bismarck, North Dakota.
Id. ¶ 11-17. On or about May 7, 2015, Plaintiff
was again transported by air ambulance service from Mercy
Medical Center to Sanford Hospital. Id. ¶
18-22. Valley Med Flight (“VMF”) provided the air
transport on both occasions. Id. ¶ 16-17, 22.
Also on May 7, 2015, VMF obtained written authorization from
Plaintiff to submit claims for payment for services provided,
and to appeal payment denials or other adverse decisions on
his behalf. Pl.'s Resp. Ex. 1, Dkt. 10-2.
submitted a claim to BCI for $43, 648.00 for the April 3 air
ambulance transportation, and BCI processed the claim on May
4, 2015. Def's Br. at 3, Dkt. 7-1. BCI sent
Plaintiff a check for $10, 747, 76 and an Explanation of
Benefits (“EOB”) stating that VMF's charges
exceeded the allowable amount for the service. Id.
at 4. VMF submitted a claim to BCI for $43, 092.00 for the
May 7 air transport, and BCI processed the claim on June 15,
2015. Id. at 5. BCI sent Plaintiff a check for $10,
670.72 and an EOB stating that VMF's charges exceeded the
allowable amount for the service. Id.
24, 2015, a representative from VMF sent a letter to the Blue
Cross of Idaho Appeals and Grievance Coordinator, carbon
copied to the Plaintiff. Cook Decl. Ex. A, Dkt 7-2.
The letter includes Plaintiff's name and member number,
and the date of service, the billed amount, and the claim
number for the May 7 claim. Id. The letter states
“we are APPEALING your decision. We disagree and
dispute your payment of $10, 670.72.” Id. The
letter states the alleged grounds for the appeal - that the
transport was medically necessary, and constituted
“pre-emergent services” under the ACA - and that
“your member should not be penalized for receiving the
necessary medical services . . . .” Id. The
letter further states “As a non-contracted provider, we
are under no obligation to accept a reduced payment and will
not honor any discounted allowable, leaving your member
responsible for any unpaid balance.” Id. The
letter appears to only appeal the payment for the second air
ambulance transport of May 7, 2015. See Id. It does
not reference the April 3 transport or payment. See
receiving the letter, BCI forwarded it on to Blue Cross Blue
Shield of North Dakota “because the local Blue Plan is
responsible for communications with their local providers
rendering services and submitting claims in their
state.” Cook Decl. ¶ 8, Dkt. 7-2. On
August 7, 2015, BCBS of North Dakota sent a letter to VMF,
stating “The requested claim was reviewed by our
reimbursement team. The claim did process correctly according
to the current Blue Cross Blue Shield of North Dakota fee
schedule.” Sorenson Decl. Ex. 2, Dkt. 10-4.
The letter included Mr. Abdilnour's name, plan number,
and a claim number. Id. On October 20, 2015, BCBS of
North Dakota sent a second letter to VMF, stating “Your
request for additional reimbursement was previously reviewed
on August 07, 2015 by our reimbursement team and determined
to have been paid correctly according to the current Blue
Cross Blue Shield fee schedule providers. No. additional
review will be made.” Sorenson Decl. Ex. 3,
Dkt. 10-4. The letter again included Mr. Abdilnour's
name, plan number, and a claim number. Id.
March 28, 2016, BCI received a request from Plaintiff's
counsel for records and information related to Mr.
Abdilnour's claims for the air transport service rendered
on April 3 and May 7, 2015. Overman Decl. Ex. F,
Dkt. 7-5. Before proceeding, BCI asked Plaintiff to complete
an “Appointment of Authorized Representative
Form.” Def.'s Br. at 6, Dkt. 7-1. On May
10, 2016, BCI provided Plaintiff's Counsel with some of
the requested information. Overman Decl. Ex. G, Dkt.
February 23, 2017, Plaintiff's Counsel notified BCI that
he was representing Plaintiff in “continuing his appeal
of BCI's claim determinations” related to the April
3, and May 4, 2015 air transport services. Overman
Decl. Ex. H, Dkt. 7-4. The letter stated that “the
benefits determinations were appealed on July 24, 2015”
and that “BCBSND issued notices concerning these
appeals on August 7, 2015 and October 20, 205, and
denied/failed to resolve further” Mr. Abdilnour's
claims. Id. On April 19, 2017, BCI denied
Plaintiff's appeal as untimely. Overman Decl.
Ex. I, Dkt. 7-4. BCI did not address, or even acknowledge the
July 24 letter in their denial. See id.
filed his Complaint in this case on October 3, 2017.
Compl., Dkt. 1. The Complaint alleges that BCI
breached the terms of its employee welfare benefit plan, in
violation of the Employee Retirement Income Security Act of
1974 (“ERISA) § 502, 29 U.S.C. §
1132(a)(1)(B) by failing to provide full coverage for the
costs of his medical transport by air ambulance on April 3
and May 7, 2015. Id. The Defendants have filed this
motion to dismiss on the grounds that Plaintiff failed to
exhaust his administrative remedies by timely appealing the
claim determination, as required by the Plan. Def.'s
Br., Dkt 7-1.
You have the right to appeal any denied claim. Your appeal
must be filed with the Claims Administrator in writing,
within 180 days after you receive the written notice of the
reduction or denial . . . . If you have followed these
procedures and you still do not agree with the Claims
Administrator's decision about your claim, you can file
suit in federal court. These claims and appeals procedures