Marks v. Watters ( 2003 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
GROVER MARKS, the Administrator 
of the Estates of Elaine Cleavenger
and Jamie Cleavenger and Co-
Administrator of the Estate of
Robert Cleavenger; DAWN LYNN
KISNER, Co-Administrator of the
Estate of Robert Cleavenger;
ROSEANNA MARKS, as Legal
Guardian of Jessie Cleavenger,
Plaintiffs-Appellants,
v.
SHELLEY WATTERS; MANAGED CARE
SERVICES MAINSTAY OF CENTRAL
PENNSYLVANIA, INCORPORATED,
Defendants-Appellees,
and  No. 02-1486
WEST VIRGINIA DEPARTMENT OF
HEALTH AND HUMAN RESOURCES;
WILLIAM R. SHARPE, JR. HOSPITAL;
AHMED ABORAYA, M.D.; SAFIULLAH
SYED, M.D.; RICHARD SEIME;
COVENTRY HEALTH CARE
MANAGEMENT CORPORATION, d/b/a
Health Assurance; WEST VIRGINIA
UNIVERSITY, BOARD OF TRUSTEES, a
Corporation; WEST VIRGINIA
UNIVERSITY SCHOOL OF MEDICINE,
DEPARTMENT OF BEHAVIORAL
MEDICINE AND PSYCHIATRY; WEST
VIRGINIA UNIVERSITY HOSPITALS
INCORPORATED, a Corporation;

2 MARKS v. WATTERS
RAMSAY HEALTH CARE, 
INCORPORATED; PSYCHIATRIC
INSTITUTE OF WEST VIRGINIA, d/b/a
Chestnut Ridge Behavioral Health
Systems; JACK CLOHAN; ABE ADEL,
M.D.; SCOTT POLLARD, M.D.;
MADONNA ROACH, R.N.; FLORENCE
HATTON; GREAT-WEST LIFE & 
ANNUITY INSURANCE COMPANY;
COVENTRY HEALTH & LIFE INSURANCE
COMPANY, d/b/a Health Assurance,
formerly known as American
Service Life Insurance Company,
Defendants.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Joseph Robert Goodwin, District Judge.
(CA-01-961-2)
Argued: December 5, 2002
Decided: March 14, 2003
Before NIEMEYER, WILLIAMS, and TRAXLER, Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the opinion,
in which Judge Williams and Judge Traxler joined.
COUNSEL
ARGUED: Mary Donne Peters, GORBY, REEVES, PETERS &
BURNS, P.C., Atlanta, Georgia, for Appellants. Thomas V. Flaherty,
FLAHERTY, SENSABAUGH & BONASSO, P.L.L.C., Charleston,
MARKS v. WATTERS 3
West Virginia, for Appellees. ON BRIEF: James W. Standard, Jr.,
GORBY, REEVES, PETERS & BURNS, P.C., Atlanta, Georgia, for
Appellants. Nathaniel K. Tawney, FLAHERTY, SENSABAUGH &
BONASSO, P.L.L.C., Charleston, West Virginia, for Appellees.
OPINION
NIEMEYER, Circuit Judge:
After his release from an inpatient mental healthcare facility, Rob-
ert Cleavenger murdered his wife and daughter, injured his son, and
then committed suicide. The representatives of Cleavenger and his
family filed a broad complaint for damages against all of the health-
care providers involved in Cleavenger’s care, as well as against the
companies insuring and managing Cleavenger’s healthcare benefits
provided by his employer. Their complaint, filed in a West Virginia
State court, alleged medical malpractice, negligent supervision, negli-
gent monitoring, negligent healthcare management, and vicarious lia-
bility, all under the State law of West Virginia.
Cleavenger’s healthcare insurer removed the case to federal court
under 28 U.S.C. §§ 1441 and 1331, asserting that the claims against
it and related defendants were "completely preempted" by § 502(a) of
the Employee Retirement Income Security Act ("ERISA"). The plain-
tiffs moved to remand the case to State court on the ground that their
claims challenged mixed decisions of plan administration and patient
treatment and that, under Pegram v. Herdrich, 530 U.S. 211 (2000),
such claims are not preempted by ERISA. The district court denied
the plaintiffs’ motion to remand because their claims against the
healthcare insurers challenged purely administrative decisions under
the plan and were thus completely preempted by ERISA. The district
court then considered the merits of plaintiffs’ preempted claims,
which it treated as ERISA claims, and entered summary judgment
against the plaintiffs on those claims. Finally, the court remanded the
remaining state-law claims to State court.
On appeal, the plaintiffs challenge (1) the district court’s order
denying their motion to remand and (2) the district court’s summary
4 MARKS v. WATTERS
judgment on the ERISA claims. For the reasons that follow, we
affirm.
I
Robert Cleavenger was employed by Mountaineer Retreading, Inc.
in Clarksburg, West Virginia, and in connection with his employment,
Mountaineer Retreading provided Cleavenger employee benefits,
including healthcare benefits through a preferred provider organiza-
tion plan (a "PPO plan") insured by Health Assurance. For the premi-
ums paid, Health Assurance agreed to pay Mountaineer Retreading’s
employees for 100% of the costs of medical care provided to them by
participating healthcare providers — those who agreed to offer
healthcare pursuant to a fee schedule — and 80% of the costs of care
provided by nonparticipating providers. Cleavenger’s PPO plan,
which detailed the scope of coverage as well as its limitations, pro-
vided coverage for mental illness, including coverage for 45 days in
an inpatient mental health facility and outpatient psychiatric consulta-
tions.
Health Assurance subcontracted with Managed Care Services
Mainstay of Central Pennsylvania, Inc. ("Mainstay") to manage the
behavioral healthcare component of its PPO plan. This subcontract
required Mainstay to provide "certain mental health and chemical
dependency outpatient and inpatient professional and technical ser-
vices and related provider contracting and credentialing, utilization
management and quality improvement services." These services that
Mainstay undertook to provide included determinations of employee
eligibility, the medical necessity of services, the resolution of griev-
ances, and claims payment. Mainstay provided these services to
employees through case managers whom they designated in connec-
tion with each claim. In this case, Mainstay designated Shelley Watt-
ers as the case manager to perform utilization review services in
connection with Cleavenger’s treatment.
In October 1998, while covered by his employee benefit plan,
Cleavenger was hospitalized at the William R. Sharpe, Jr. Hospital
("Sharpe Hospital") in Weston, West Virginia, after he attempted sui-
cide by ingesting three bottles of pills and slitting his wrist. His sui-
cide attempt came shortly after he assaulted his wife upon learning
MARKS v. WATTERS 5
that she was having an affair with another man. He wrote a suicide
note describing his inability to bear the pain of his wife’s rejection.
Cleavenger was rushed to the emergency room, treated, and involun-
tarily committed to Sharpe Hospital for monitoring and treatment.
At Sharpe Hospital, Cleavenger received four days of inpatient
treatment for depression. After he was admitted, Mary Ann Iquinto,
a Sharpe Hospital nurse, called Cleavenger’s insurer to determine
Cleavenger’s insurance coverage, as she routinely did for newly
admitted patients. Health Assurance referred Iquinto to Mainstay and
to Shelley Watters. After learning of Cleavenger’s suicide attempt and
self-injurious behavior, Watters authorized payment to Sharpe Hospi-
tal for Cleavenger’s inpatient services. She also told Iquinto that
because Sharpe Hospital was not a participating provider under Clea-
venger’s insurance policy, Cleavenger would be responsible for a
20% co-pay.
The next day, October 7, 1998, Watters called Iquinto to inquire
about Cleavenger’s condition and was advised that Cleavenger
remained on a suicide watch and that Sharpe Hospital planned to con-
tinue to monitor him closely to see if he would stabilize and to
increase his social interaction. During the conversation, Watters
authorized payment for Cleavenger’s continued inpatient care.
Dr. Ahmed Aboraya, Cleavenger’s treating physician at Sharpe
Hospital, observed that over the next two days Cleavenger was doing
"fairly well," and he stopped the 15-minute checks made as part of the
suicide watch. He also noted Cleavenger was neither delusional nor
psychotic and that he no longer posed a risk of harm to himself or oth-
ers.
After the first couple of days in the hospital, Cleavenger began to
express concern to Dr. Aboraya that if he stayed in the hospital too
long he would lose his job. Dr. Aboraya noted that it was Clea-
venger’s "will and his request that he want[ed] to go home and con-
tinue to his job and continue the therapy as an outpatient." Based on
Cleavenger’s improved condition, Dr. Aboraya did not believe that
the hospital could keep Cleavenger against his will. Dr. Aboraya met
with a team of nurses and a social worker, explained that Cleavenger
requested discharge, and asked whether there were any concerns
6 MARKS v. WATTERS
about releasing him. Everybody on the team agreed that, under West
Virginia law, there was no basis for holding Cleavenger against his
will, and so Dr. Aboraya noted on Cleavenger’s chart, "Discharge the
patient on Friday [October 9, 1998]." Dr. Pollard, a Sharpe Hospital
doctor who observed Cleavenger and who had the authority to over-
ride Dr. Aboraya’s discharge decision, agreed with Dr. Aboraya’s
decision.
Cleavenger was released on Friday, October 9, 1998, from Sharpe
Hospital. Florence Hatton, the social worker on the unit at that time,
wrote up a psychological assessment of Cleavenger and a plan for his
outpatient care. Dr. Aboraya had only specified that Cleavenger
needed a psychologist who specialized in marital problems, and he
did not specify where Cleavenger should go for outpatient care. He
left that decision to Florence Hatton. Although both Valley Commu-
nity Mental Health Center, Inc. ("Valley Center") and University
Health Associates at Chestnut Ridge Hospital ("University Asso-
ciates") were options for outpatient care — and both were, in Dr.
Aboraya’s estimation, "similar clinics" — Hatton noted that Clea-
venger "stated he did not want to go to Valley [Center]," even though
it was the facility closer to Cleavenger’s residence. Hatton thus con-
tacted University Associates and set up an appointment for Clea-
venger for October 12, 1998.
Watters, who had learned that Cleavenger was being released, sent
Cleavenger a letter, introducing herself as his case manager and indi-
cating that she would continue to follow his treatment after discharge
and contact him by telephone to assess his post-hospitalization status.
She also learned that Sharpe Hospital had set up an appointment for
Cleavenger at University Associates for October 12. After October
12, Watters called Cleavenger to determine whether he had kept his
appointment at University Associates, but Cleavenger never returned
her call. Watters’ October 15 notes indicate that University Associates
told her that Cleavenger kept his first appointment, although Univer-
sity Associates doubts that they would have communicated that infor-
mation, as Cleavenger never showed up. Watters continued to attempt
to reach Cleavenger but to no avail. Having not heard from him and
assuming that Cleavenger was keeping his appointments, Watters
closed her file on Cleavenger.
MARKS v. WATTERS 7
In fact, on the day of his release from the hospital, Cleavenger con-
tacted University Associates to change his outpatient appointment that
was scheduled for October 12 because it conflicted with his return to
work. Cleavenger also postponed his next appointment on October 16
in order to take his son to the dentist. One day later, on October 17,
1998, Cleavenger killed his wife and daughter with a knife, injured
his son, and committed suicide by jumping head first from a second-
story window of the family’s home.
The plaintiffs, who are representatives of the estates of Cleavenger,
his wife, and his daughter, as well as the guardian of his surviving
son, commenced this action for damages in State court, asserting vari-
ous state-law claims of negligence and vicarious liability against doc-
tors, healthcare organizations, and insurance-related entities based on
the decision to release Cleavenger from the hospital to outpatient
care. In their complaint against Watters, the plaintiffs alleged that she
was negligent in
a) failing to adequately monitor Robert Cleavenger during
his out-patient treatment; b) failing to obtain or otherwise
cause the readmission of Robert Cleavenger to the Sharpe
Hospital or other inpatient facility once it became apparent
that Robert Cleavenger was non-compliant with out-patient
treatment services designed to monitor his recovery from his
mental illness; and c) failing to provide adequate warnings
to Robert Cleavenger’s family members, who were foresee-
able victims of Robert Cleavenger’s mental illness, as to
signs and symptoms of Robert Cleavenger’s remission.
Their complaint against Mainstay alleged only that Mainstay was
vicariously liable for Watters’ negligence. Plaintiffs sought damages
for funeral and medical expenses, pain and suffering, and lost earn-
ings, among other things.
After Health Assurance, with the consent of the other defendants,
removed this case to federal court on the ground that the claims
against it as well as Mainstay and Watters were preempted by ERISA,
plaintiffs filed a motion to remand this case to State court, arguing
that Mainstay and Watters had an active role in "the decision as to the
type and quality of health care Robert Cleavenger received in October
8 MARKS v. WATTERS
of 1998" and that such mixed decisions involving both eligibility for
coverage and treatment were not subject to preemption under ERISA,
but rather were subject to state-law malpractice jurisprudence. The
district court rejected that argument and denied plaintiffs’ motion to
remand, concluding that because plaintiffs’ case against Mainstay and
Watters "related to the administration of plan benefits, and not to the
provision of medical care," it had to be brought under ERISA, if at
all. The court concluded:
[P]laintiffs cannot escape the facts that Mainstay never pur-
ported to provide Cleavenger with medical services, that
Cleavenger’s treating physicians were fully insulated from
the utilization review procedures performed by Mainstay,
and that Watters never spoke directly with Cleavenger’s
physicians and had no input into Cleavenger’s referral to
outpatient care. Cleavenger was discharged and referred to
outpatient therapy not because of a Mainstay policy that
determined level of care, but because his treating physicians
concluded that was the most appropriate level of treatment.
It was the treating physicians at Sharpe who were the
arrangers of Cleavenger’s care, not Mainstay or Shelley
Watters. Mainstay was performing a purely administrative
role.
***
At bottom, plaintiffs’ claims against Shelley Watters and
Mainstay attack the administration of Cleavenger’s benefits.
Plaintiffs essentially complain that the administration of the
PPO Plan led to Cleavenger’s being referred to outpatient
care. These claims go to plan administration, not provision
of medical services.
The district court also concluded that plaintiffs failed to establish a
claim under ERISA and entered summary judgment against them.
From the district court’s orders denying remand and granting sum-
mary judgment to Mainstay and Watters, the plaintiffs filed this
appeal.
MARKS v. WATTERS 9
II
Plaintiffs’ principal argument on appeal is that the district court
erred in concluding that their state-law claims against Mainstay and
Watters were preempted by ERISA and in denying their motion to
remand this case to State court on that basis. They contend that
ERISA does not preempt their claims against Mainstay and Watters
because these claims challenge "mixed eligibility and treatment" deci-
sions — i.e., decisions in which plan administration and medical
judgment are inextricably intertwined. Such mixed eligibility and
treatment claims, they assert, remain state-law claims and are not pre-
empted by ERISA under the rationale of Pegram v. Herdrich, 530
U.S. 211, 235 (2000) (holding that a claim of fiduciary breach by an
HMO physician making a mixed decision of eligibility and treatment
"boil[s] down to a malpractice claim, and the fiduciary standard could
be nothing but the malpractice standard traditionally applied in
actions against physicians" so that ERISA would not govern such a
claim).
We begin by reviewing the nature and scope of ERISA’s preemp-
tion generally. ERISA was enacted to protect the interests of partici-
pants in employee benefit plans and their beneficiaries by, among
other things, "establishing standards of conduct, responsibility, and
obligation for fiduciaries of employment benefit plans, and by provid-
ing for appropriate remedies, sanctions, and ready access to the Fed-
eral courts." 29 U.S.C. § 1001(b). Its regulation "extends to [plans]
that provide ‘medical, surgical, or hospital care or benefits’ for plan
participants or their beneficiaries ‘through the purchase of insurance
or otherwise.’" New York State Conference of Blue Cross & Blue
Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 650-51 (1995) (quot-
ing ERISA § 3(1), 29 U.S.C. § 1002(1)). Recognizing "the reservation
to Federal authority [of] the sole power to regulate the field of
employee benefit plans as ERISA’s crowning achievement," the legis-
lation’s sponsors "emphasized both the breadth and importance of the
pre-emption provisions" to "establish pension plan regulation as
exclusively a federal concern." Pilot Life Ins. Co. v. Dedeaux, 481
U.S. 41, 46 (1987) (internal quotation marks and citations omitted).
Thus, § 514(a) of ERISA provides that ERISA "shall supersede any
and all State laws insofar as they may now or hereafter relate to any
employee benefit plan." 29 U.S.C. § 1144(a). This "broad" and "ex-
10 MARKS v. WATTERS
pansive" preemption clause, Pilot Life, 481 U.S. at 47, thus provides
a federal law defense to all common-law causes of action that "relate
to" an employee benefit plan, unless ERISA expressly excepts the
cause of action from ERISA’s preemption provision, id. at 48.
Having preempted a field defined by claims relating to an ERISA
plan, ERISA precludes the prosecution of preempted state-law claims
that are not otherwise saved from preemption under § 514(b)(2)(A)
unless they fall within the scope of the exclusive civil enforcement
mechanism provided by § 502(a) of ERISA, 29 U.S.C. § 1132(a), in
which case they must be treated as federal causes of action under
§ 502(a). Section 502(a) authorizes participants or beneficiaries to file
civil actions to, among other things, recover benefits, enforce rights
conferred by an ERISA plan, remedy breaches of fiduciary duty, clar-
ify rights to benefits, and enjoin violations of ERISA. Thus, if a state-
law claim preempted by § 514 is not included within the scope of
§ 502(a), the claim is susceptible to a § 514 defense, whether it is
brought in State or federal court. But if a state-law claim falls within
the scope of § 502(a), it is "completely preempted" and therefore
treated as a federal cause of action. See Metropolitan Life Ins. Co. v.
Taylor, 481 U.S. 58, 66-67 (1987).
Stated otherwise, under the scheme established by Congress,
ERISA § 514 preempts a field defined by claims relating to employee
benefit plans regulated by ERISA that are not otherwise subject to
ERISA’s saving clause and, once having occupied that field, limits
civil enforcement to claims provided in § 502(a). Any claim falling
within the field but not within the scope of § 502(a) is preempted and
must be dismissed, and any claim falling within the scope of § 502(a)
becomes exclusively a federal cause of action. Thus, simple preemp-
tion under § 514 precludes prosecution of the preempted state-law
claim, but "complete preemption" exists when the preempted state-
law claim falls within the scope of the exclusive civil enforcement
mechanism of § 502, in which case the state-law claim is converted
into a federal cause of action removable to federal court. Metropolitan
Life, 481 U.S. at 66-67; see also In re U.S. Healthcare, Inc., 193 F.3d
151, 160 (3d Cir. 1999) ("It is important to distinguish complete pre-
emption under § 502(a) of ERISA, which is used in this sense as a
jurisdictional concept, from express preemption under § 514(a) of
ERISA, which is a substantive concept governing the applicable
MARKS v. WATTERS 11
law"); Warner v. Ford Motor Co., 46 F.3d 531, 535 (6th Cir. 1995)
("Removal and preemption are two distinct concepts").
Because a state-law claim that is completely preempted under
§ 502(a) becomes a federal cause of action, it may be removed to fed-
eral court under 28 U.S.C. §§ 1331 and 1441 even if it is pleaded only
as a state-law claim. As the Supreme Court explained in Metropolitan
Life,
Federal pre-emption is ordinarily a federal defense to the
plaintiff’s suit. As a defense, it does not appear on the face
of a well-pleaded complaint, and, therefore, does not autho-
rize removal to a federal court. Gully v. First National Bank,
[299 U.S. 109 (1936)]. One corollary of the well-pleaded
complaint rule developed in the case law, however, is that
Congress may so completely pre-empt a particular area that
any civil complaint raising this select group of claims
[within the scope of § 502(a)] is necessarily federal in char-
acter.
481 U.S. at 63-64.
Accordingly, the question presented in this case is whether the
plaintiffs’ claims against Mainstay and Watters fell within the scope
of § 502(a). If they did, then their claims were properly treated as fed-
eral causes of action and their removal to federal court was appropri-
ate. On the other hand, if they did not fall within the scope of
§ 502(a), then their remand to State court would be required, even
though § 514 might provide a defense to them in State court.
We now turn to plaintiffs’ claims and begin by noting that plain-
tiffs have conceded that they are beneficiaries or participants under an
employee benefit plan provided by Mountaineer Retreading, Inc. to
Robert Cleavenger, one of its employees. They also concede that
there is no dispute that the inpatient and outpatient care that is
involved in this action was "covered under Mr. Cleavenger’s health
care plan" provided by Mountaineer Retreading and that the plan was
regulated by ERISA. Finally, they recognize that Cleavenger’s bene-
fits for mental illness were managed by Mainstay pursuant to a con-
tractual arrangement between it and the plan.
12 MARKS v. WATTERS
Plaintiffs’ argument focuses on the contention that their claims
against Mainstay and Watters arise out of "mixed eligibility and treat-
ment decisions" made by Mainstay and Watters. They argue that such
mixed eligibility and treatment decisions are governed by State law
under the holding of Pegram v. Herdrich, 530 U.S. 211 (2000), which
essentially held that duties exercised in such mixed decisions arise
from State common-law malpractice jurisprudence, which Congress
did not preempt under § 514 of ERISA.
In Pegram, the Supreme Court considered an HMO’s simultaneous
duties as both an ERISA plan administrator and a healthcare provider,
recognizing that in acting as a plan administrator, an HMO functions
as a plan fiduciary regulated by ERISA and that in providing treat-
ment of a patient’s medical conditions, the HMO functions as a
healthcare provider regulated by State malpractice jurisprudence.
Analyzing this "dual medical/administrative role[ ] of HMOs," the
Supreme Court concluded that an HMO’s activities can be placed into
three categories: (1) pure administrative eligibility decisions, (2)
mixed eligibility and treatment decisions, and (3) pure treatment deci-
sions. Pegram, 530 U.S. at 228-29. Pure eligibility decisions relate to
"the plan’s coverage of a particular condition or medical procedure
for its treatment." Id. at 228. "‘Treatment decisions,’ by contrast, are
choices about how to go about diagnosing and treating a patient’s
condition: given a patient’s constellation of symptoms, what is the
appropriate medical response?" Id. Mixed eligibility and treatment
decisions exist when those two decisions are "practically inextricable
from one another" such that "eligibility decisions cannot be untangled
from physicians’ judgments about reasonable medical treatment." Id.
at 228-29. The Court noted that while an HMO acts as an ERISA
fiduciary when making pure eligibility decisions, it does not act as an
ERISA fiduciary when making pure treatment decisions. Addressing
the third category, the Court held that Congress did not intend for any
HMO "to be treated as a fiduciary to the extent that it makes mixed
eligibility decisions acting through its physicians." Id. at 231. The
Court explained that "for all practical purposes, every claim of fidu-
ciary breach by an HMO physician making a mixed decision would
boil down to a malpractice claim, and the fiduciary standard would
be nothing but the malpractice standard traditionally applied in
actions against physicians." Id. at 235. The Court thus concluded that
MARKS v. WATTERS 13
"mixed eligibility decisions by HMO physicians are not fiduciary
decisions under ERISA." Id. at 237.
Under the teaching of Pegram, when an HMO diagnoses and treats
a patient’s condition with an appropriate medical response, even if it
is at the same time also making an eligibility determination, it does
not act as a fiduciary under ERISA because the mixed eligibility and
treatment decisions as a practical matter reduce to the stuff of State
malpractice claims and not to traditional breach of fiduciary duty
claims. But when an HMO acts as a fiduciary in relation to an ERISA
plan, performing the functions of a fiduciary as defined in ERISA,
then a claim against it for breach of that fiduciary duty must be
brought exclusively under ERISA.
A person undertaking to act as a fiduciary under ERISA is required
to "discharge his duties with respect to [an ERISA] plan solely in the
interest of participants and beneficiaries," for the exclusive purpose
of "(i) providing benefits to participants and their beneficiaries; and
(ii) defraying reasonable expenses of administering the plan." 29
U.S.C. § 1104(a)(1)(A). A person functions as a fiduciary only
to the extent (i) he exercises any discretionary authority or
discretionary control respecting management of [a] plan or
exercises any authority or control respecting management or
disposition of its assets, (ii) he renders investment advice for
a fee or other compensation, direct or indirect, with respect
to any moneys or other property of such plan, or has any
authority or responsibility to do so, or (iii) he has any discre-
tionary authority or discretionary responsibility in the
administration of such plan.
29 U.S.C. § 1002(21)(A). Thus, to the extent that a civil complaint
challenges the conduct of a fiduciary, as defined in ERISA and
explained by Pegram, the complaint must be brought under § 502(a)
of ERISA, or not at all.
In this case, Mainstay was a contractor hired by Health Assurance
to manage, as a utilization review agent, the behavioral healthcare
component of its PPO health plan issued to Mountaineer Retreading.
Health Assurance was not an HMO but a preferred provider organiza-
14 MARKS v. WATTERS
tion or PPO that provided reimbursement for healthcare coverage sup-
plied by third parties. Under the plan, Cleavenger, as a covered
employee, was free to choose his own healthcare providers. If he
chose a participating provider — one who had a contractual arrange-
ment with Health Assurance or Mainstay to provide healthcare to
insureds at an agreed-upon fee schedule — then Health Assurance
would pay 100% of the cost of services rendered to Cleavenger. If,
on the other hand, Cleavenger chose to go outside the network estab-
lished by Health Assurance, Health Assurance agreed to pay 80% of
the usual and customary charges and Cleavenger would become
responsible for the remaining 20%.
Under its contract with Health Assurance, Mainstay did not treat
patients. Rather, it managed Cleavenger’s utilization of healthcare
provided by others to accommodate the benefits of the plan. Thus, it
agreed to perform network development, credentialing of healthcare
providers, utilization review, and quality assurance functions in the
area of behavioral healthcare. And under its utilization review pro-
cess, Mainstay supplied case managers, such as Shelley Watters, to
confirm with healthcare providers that the healthcare being delivered
or proposed was approved for payment under the patient’s healthcare
plan. The case managers, however, had no authority to decline
approval for payment. If a case manager was unable to confirm cover-
age upon reviewing the specifics of the patient’s healthcare plan and
the applicable medical necessity criteria, the case manager was
required to refer the matter to Mainstay’s medical director. Most
importantly to this case, Shelley Watters was never engaged to actu-
ally provide treatment or to make treatment decisions for Cleavenger.
And for this reason, the district court concluded that, based on the
record before it, "Mainstay never purported to provide Cleavenger
with medical services, that Cleavenger’s treating physicians were
fully insulated from the utilization review procedures performed by
Mainstay, and that Watters never spoke directly with Cleavenger’s
physicians and had no input into Cleavenger’s referral to outpatient
care."
Cleavenger’s estate and representatives of his family as beneficia-
ries filed their claims against Watters for negligence in the perfor-
mance of services as a case manager for Mainstay. Although the
complaint also attributes to Watters negligent medical treatment deci-
MARKS v. WATTERS 15
sions, the record indisputably establishes that Watters was never
engaged as a provider of medical treatment and that she never made
a treatment decision. Indeed, there is no evidence that she even talked
with the doctors who did treat Cleavenger. Stated otherwise, there
was no evidence that eligibility decisions made by Watters as an inde-
pendent utilization review agent for Health Assurance were "practi-
cally inextricable" from the treatment decisions made by
Cleavenger’s physicians such that one could conclude that Watters’
decisions amounted to mixed eligibility and treatment decisions.
Indeed, the record demonstrates that the physician treating Clea-
venger neither spoke to Watters nor had even heard of Mainstay.
Thus, as the Supreme Court noted in Pegram, even though the dis-
tinction between pure eligibility decisions and treatment decisions
may tend to blur when the treating physician is also responsible for
making eligibility decisions, as is the case in a traditional HMO, that
is not the case here where the treating physicians and Watters were
institutionally segregated from one another. Watters worked for an
independent utilization review agent that was under contract with
Health Assurance, a PPO, and the treating physicians were simply
employed by, or connected with, the hospital to which Cleavenger
was admitted. Under this arrangement, treatment decisions and eligi-
bility decisions were made by different people at different times
according to different policies. Indeed, in this case Mary Ann Iquinto
of Sharpe Hospital apprised Watters of medical treatment decisions
and diagnoses only after the doctors had already made them.
Plaintiffs do not allege that Watters or Mainstay had covert or
undisclosed communications with any of Cleavenger’s healthcare
providers. Rather, they argue that Watters’ administration of the plan
had the effect of causing the healthcare providers to discharge Clea-
venger prematurely. They also allege maladministration of the plan to
the extent that Cleavenger’s referral to the outpatient facility at Uni-
versity Associates amounted to a violation of Mainstay’s "geographic
accessibility standards," which elaborate a preference for referring
patients to the nearest outpatient facilities. They additionally allege
that Watters’ conduct was deficient because she did not properly fol-
low up on Cleavenger’s outpatient progress as required by the plan.
All of these claims, however, attack only Watters’ administration of
the plan.
16 MARKS v. WATTERS
Claims challenging the administration of an employee welfare ben-
efit plan fall squarely within the scope of § 502(a) of ERISA. Such
claims include allegations that a plan benefit was denied based on
noncompliance with the terms of a plan or allegations that an ERISA
fiduciary breached a duty to a plaintiff by improperly denying a bene-
fit based solely on financial motivations. The core allegation underly-
ing a § 502(a) claim is that a plan participant or beneficiary was
denied a benefit to which the participant or beneficiary was entitled
under an ERISA plan or that the manner of administering the benefits
caused the participants or beneficiaries some injury. These are pre-
cisely the types of claims that plaintiffs are making against Watters
and, vicariously, against Mainstay. Plaintiffs cannot transform what
is properly considered a § 502(a) claim into a state-law claim for mal-
practice simply by making unsubstantiated and incorrect statements
that an independent utilization review agent was responsible for medi-
cal decisions.
In sum, we conclude that plaintiffs’ claims are claims for malad-
ministration against Mainstay and Watters that fall within the scope
of § 502(a) of ERISA and therefore were properly treated as federal
claims and removed to federal court. Accordingly, we affirm the dis-
trict court’s order based on the doctrine of complete preemption,
denying the plaintiffs’ motion to remand this case to State court.
III
Taking plaintiffs’ claims as claims for breach of fiduciary duty
under § 502(a) of ERISA, 29 U.S.C. § 1132(a), we must still deter-
mine whether the district court erred in entering summary judgment
in favor of Watters and Mainstay for an alleged violation of ERISA.
We conclude that the district court did not err.
Plaintiffs have offered nothing more than innuendo to support a
claim of wrongdoing by Watters and Mainstay. They argue, for exam-
ple, that through Watters’ administration of the plan, Mainstay chan-
neled Cleavenger to University Associates rather than the more local
facility, Valley Center: "It is clear that the reason why Mainstay pro-
cured Robert Cleavenger’s referral to a lower level of care at [Univer-
sity Associates] was motivated by financial considerations . . . . Dr.
Wallendjack specifically testified that referring members to a partici-
MARKS v. WATTERS 17
pating provider inures to the benefit of the PPO." To support this
argument, plaintiffs pulled selected references from the record, such
as a handwritten note with the words "non-par[ticipating]" next to
Valley Center, to suggest that Valley Center was not a participating
provider in the Health Assurance network, while University Asso-
ciates was. Plaintiffs’ assertion, however, is disingenuous, because in
fact, both University Associates and Valley Center were participating
providers in October 1998. When faced with this fact at oral argu-
ment, plaintiffs’ counsel revised their position, arguing that Watters
and Mainstay channeled Cleavenger away from Valley Center
because, although it was a participating provider, Watters and Main-
stay thought it was not. This argument, too, is supported by nothing
more than innuendo.
The uncontroverted facts support both that Cleavenger insisted on
leaving Sharpe Hospital to return to work and that he expressed a
preference for the further-away outpatient facility. Cleavenger was
only released from Sharpe Hospital after a team of doctors, nurses,
and a social worker determined that he could not legally be kept
against his will based on his medical condition at the time. The thrust
of plaintiffs’ complaint is directed at this medical decision made by
other defendants and not against the administration provided by Watt-
ers and Mainstay. Whether plaintiffs can establish a breach of duty
giving rise to malpractice against defendants other than Mainstay and
Watters for releasing Cleavenger and sending him to University Asso-
ciates is a question on which we express no opinion because that
forms the core of plaintiffs’ State malpractice claims against the
healthcare providers. We only conclude that, on the record before us,
the facts do not support a claim that Mainstay and Watters breached
any fiduciary duty in violation of ERISA.
For the foregoing reasons, the district court’s order granting sum-
mary judgment to Watters and Mainstay is affirmed.
AFFIRMED