AccessDirect, AHS East Texas Health System, LLC, Cavenders, ERISA,Healthfirst TPA, Inc.,City of Tyler, City of Tyler Medical Plan, Tyler Independent School District, Tyler Independent School District Medical Benefit Plan v. RCG East Texas LLP and Renal Care Group Texas, Inc.

NO. 12-24-00056-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

ACCESSDIRECT- A PREFERRED § APPEAL FROM THE 114TH
PROVIDER NETWORK, INC., AHS
EAST TEXAS HEALTH SYSTEM, LLC,
ARDENT HEALTH SERVICES
GROUP HEALTH PLAN, CAVENDER
STORES, LTD., CAVENDER STORES
LTD. EMPLOYEE BENEFIT PLAN,
HEALTHFIRST TPA, INC., CITY OF
TYLER, CITY OF TYLER MEDICAL
PLAN, TYLER INDEPENDENT § JUDICIAL DISTRICT COURT
SCHOOL DISTRICT, TYLER
INDEPENDENT SCHOOL DISTRICT
MEDICAL BENEFIT PLAN,
APPELLANTS

V.

RCG EAST TEXAS LLP AND RENAL § SMITH COUNTY, TEXAS
CARE GROUP TEXAS, INC.,
APPELLEES

MEMORANDUM OPINION
Ardent Health Services Group Health Plan and AHS East Texas Health System, LLC
(AHS Appellants), Cavender Stores, Ltd. and Cavender Stores Ltd. Employee Benefit Plan
(Cavender Appellants), and HealthFirst TPA, Inc. and AccessDirect-A Preferred Provider
Network, Inc. (Administrator Appellants), collectively Appellants, filed a petition for permissive
appeal. We deny the petition.

BACKGROUND
Appellees Renal Care Group Texas, Inc. and RCG East Texas LLP sued Appellants, as
well as the City of Tyler Medical Plan, City of Tyler, Tyler Independent School District Medical
Benefit Plan, and the Tyler Independent School District (Tyler parties), alleging various causes
of action, including breach of contract, unjust enrichment, promissory estoppel, and declaratory
relief, seeking to “recover the contractual payments to which they are entitled and to obtain a
declaratory judgment requiring that the network rate be paid for all currently treating and future
patients covered by the AccessDirect network contract.” 1 HealthFirst and AccessDirect filed
pleas to the jurisdiction and subsequently amended said pleas, and Appellants filed a joint plea to
the jurisdiction and alternative motion for summary judgment on ERISA (Employee Retirement
Income Security Act) preemption. On February 9, 2024, the trial court denied the joint plea and
Administrator Appellants’ pleas, without stating a basis for the ruling. Appellants filed motions
for permission to appeal the denial of their various pleas and modification of the trial court’s
orders, which the trial court granted. In doing so, the trial court amended his orders to grant
permission to appeal. 2 Appellants also filed a request for findings of fact and conclusions of law,
on which the trial court did not rule. This proceeding followed.

APPLICABLE LAW
In a civil action, the trial court may, by written order, permit an appeal from an order that
is not otherwise appealable if: (1) the order to be appealed involves a controlling question of law
as to which there is a substantial ground for difference of opinion; and (2) an immediate appeal
from the order may materially advance the ultimate termination of the litigation. TEX. CIV.
PRAC. & REM. CODE ANN. § 51.014(d) (West Supp. 2023). The “permission must identify the
controlling question of law as to which there is a substantial ground for difference of opinion,
and must state why an immediate appeal may materially advance the ultimate termination of the
litigation.” TEX. R. CIV. P. 168 (emphasis added). To invoke an appellate court’s permissive-
appeal jurisdiction, the “trial court must make a substantive ruling on the controlling legal issue
being appealed so that the legal issue presented to this court is the same legal issue determined
by the trial court.” Eagle Gun Range, Inc. v. Bancalari, 495 S.W.3d 887, 889 (Tex. App.—Fort
Worth 2016, no pet.). It matters not that the trial court “attempts to identify the controlling issue

1 The trial court also denied the Tyler parties’ plea to the jurisdiction. The Tyler parties filed an
interlocutory appeal from the denial of their plea to the jurisdiction, which is pending before this Court in appellate
cause number 12-24-00032-CV.

2 Permission must be stated in the order to be appealed. TEX. R. CIV. P. 168. But an order previously
issued may be amended to include such permission. Id.

2
if the order does not show that the trial court made a substantive ruling on that controlling
question of law.” Id. The trial court’s order “cannot involve a controlling question of law until
the trial court itself has made a substantive ruling on the controlling legal issue in the order.” Id.

ANALYSIS
In its order granting Appellants’ motion for permission to appeal, the trial court states
that they are “permitted to appeal … the following controlling questions of law as to which there
is a substantial ground for difference of opinion:”

1. Can a unified network agreement be formed by multiple contracts signed by different parties
binding all parties to the terms of an agreement they have not signed without an express written
commitment to be so bound?
2. Do state-law claims which assert entitlement to payments higher than the maximum allowable
benefits in an ERISA plan address areas of exclusive federal concern and affect the relationship
between traditional ERISA entities so that they are conflict preempted under ERISA?

The trial court found that “resolution of these questions dramatically affects the right of the
Plaintiffs to proceed with their claims and thus dramatically affects the possibility of recovery
through litigation. As such, resolution of these questions may materially accelerate the
termination of this litigation.” The order granting Administrator Appellants’ motion contains
virtually identical language, but only grants permission to appeal the following question:

Are administrators of health benefit plans with no financial interest in whether a claim is paid or
denied, entitled to the same immunity as the governmental entities and their benefit plans? 3

These orders merely deny the pleas to the jurisdiction and identify issues of law. See
generally Mellon Real Estate, Inc. v. Gomez, No. 01-23-00611-CV, 2023 WL 8262778, at *2
(Tex. App.—Houston [1st Dist.] Nov. 30, 2023, no pet.) (per curiam) (mem. op.) (denial of
summary judgment motion is not a substantive ruling on controlling questions of law). The trial
court states that resolution of the questions dramatically affects the right of the Plaintiffs to
proceed with their claims and thus dramatically affects the possibility of recovery through
litigation but offers no explanation as to how or why. See TEX. R. CIV. P. 168. The orders set
forth no substantive ruling on any of the issues identified therein.

3 The trial court previously signed virtually identical orders on March 5, 2024.

3
But Appellants maintain that “[l]ack of ‘substantive ruling’ in the trial court’s order does
not impact the Court’s ability to resolve the issues presented by this request for permissive
appeal.” Citing Sabre Travel International, Ltd. v. Deutsche Lufthansa AG, 567 S.W.3d 725
(Tex. 2019), they maintain that the “requirements for an appellate court’s jurisdiction are
satisfied when ‘the trial court certifies an interlocutory appeal,’ because that is all the statute
requires.” In Sabre, the trial court denied a Rule 91a motion to dismiss in which Sabre argued
that the federal Airline Deregulation Act (ADA) preempts claims for tortious interference with
contract. Sabre Travel, 567 S.W.3d at 727, 728-29. But the trial court certified this legal
question, stating that the “applicable Texas case law, while persuasive, ‘is factually different in
ways which could be construed to make it distinguishable as controlling authority’ regarding
whether the ADA preempts tortious interference claims by airlines, and that ‘an immediate
appeal may materially advance the termination of litigation.’” Id. at 729. The trial court also
“noted that because holdings from other jurisdictions concluded that ADA preemption applies to
claims against GDSs [Global Distribution Systems], the question ‘is ripe for consideration,
especially from the Second Court of Appeals which authored the Frequent Flyer Depot opinion
and, ultimately, the Texas Supreme Court.’” Id. The appellate court denied the permissive
appeal. Id. The Texas Supreme Court held as follows:

…the trial court certified an interlocutory appeal under section 51.014(d), but the court of appeals
exercised its discretion—as it is entitled to do—to decline acceptance of the appeal, citing
authority for strictly construing the interlocutory appeals statute. Under the plain language
of section 51.014(d) and (f), we cannot say that the court of appeals abused its discretion.

We do caution, however, that while courts of appeals have discretion to deny acceptance of
permissive interlocutory appeals, the Legislature in its enactment of section 51.014(d) and (f) has
recognized the benefit of appellate courts accepting such appeals when the threshold for an
exception to the final judgment rule is met. When courts of appeals accept such permissive
appeals, parties and the courts can be spared the inevitable inefficiencies of the final judgment rule
in favor of early, efficient resolution of controlling, uncertain issues of law that are important to
the outcome of the litigation. Indeed, the Legislature enacted section 51.014 to provide “for the
efficient resolution of certain civil matters in certain Texas courts” and to “make the civil justice
system more accessible, more efficient, and less costly to all Texans while reducing the overall
costs of the civil justice system to all taxpayers.” If all courts of appeals were to exercise their
discretion to deny permissive interlocutory appeals certified under section 51.014(d), the
legislative intent favoring early, efficient resolution of determinative legal issues in such cases
would be thwarted. Just because courts of appeals can decline to accept permissive interlocutory
appeals does not mean they should; in fact, in many instances, courts of appeals should do exactly
what the Legislature has authorized them to do—accept permissive interlocutory appeals and
address the merits of the legal issues certified.

4
Id. at 732 (internal citations omitted). When addressing its own jurisdiction to hear the
interlocutory appeal, the Court explained, “Under the plain language of the statute, the
jurisdictional predicate for review in this Court is satisfied when the trial court certifies an
interlocutory appeal under section 51.014(d) because section 51.014(d) requires only the trial
court’s permission to appeal.” Id. at 733 (emphasis original). The Court further explained, “If
the trial court concludes that the threshold requirements are satisfied and certifies the
interlocutory order according to section 51.014(d), it ‘permits an appeal’ from the order, and this
Court’s jurisdiction is then proper under section 22.225(d) regardless of how the court of appeals
exercises its discretion over the permissive appeal.” Id. The Texas Supreme Court has since
clarified that its “warning in Sabre Travel was issued to ‘caution,’ not to command.” Indus.
Specialists, LLC v. Blanchard Refining Co., LLC, 652 S.W.3d 11, 18 (Tex. 2022) (concluding
appellate court did not abuse discretion by refusing to accept permissive interlocutory appeal).
The Court held that “section 51.014(f) permits Texas courts of appeals to accept a permissive
interlocutory appeal when the two requirements of section 51.014(d) are met, but it grants the
courts discretion to reject the appeal even when the requirements are met.” Id. at 21.
Sabre Travel focused on Section 51.014 of the civil practice and remedies code, which
provides that the trial court may, by written order, permit an appeal from an order that is not
otherwise appealable if: (1) the order to be appealed involves a controlling question of law as to
which there is a substantial ground for difference of opinion; and (2) an immediate appeal from
the order may materially advance the ultimate termination of the litigation. TEX. CIV. PRAC. &
REM. CODE ANN. § 51.014(d). Thus, as the Texas Supreme Court explained, an appellate court
has jurisdiction once the trial court certifies an interlocutory appeal under Section
51.014(d) because that permission to appeal is all that Section 51.014(d) requires. See Sabre
Travel, 567 S.W.3d at 733. But Rule of Civil Procedure 168 governs the content of the trial
court’s order. Rule 168 provides that the trial court’s permission “must state why an immediate
appeal may materially advance the ultimate termination of the litigation.” TEX. R. CIV. P. 168
(emphasis added); see Indus. Specialists, 652 S.W.3d at 14-15 (noting that in 2011, Texas
Supreme Court enacted new procedural rules to accommodate permissive-appeal exception,
including Rule 168, “requiring that trial-court orders authorizing permissive appeals ‘identify the
controlling question of law as to which there is a substantial ground for difference of opinion’
and ‘state why an immediate appeal may materially advance the ultimate termination of the

5
litigation’”). Here, the trial courts’ orders do not state why an immediate appeal may materially
advance the ultimate termination of the litigation. See Traylor v. Lane, No. 06-23-00030-CV,
2023 WL 3262954, at *2-3 (Tex. App.—Texarkana May 5, 2023, pet. denied) (mem. op.)
(denying petition for permissive appeal because trial court order failed to comply with Rule 168,
including requirement that order “state why an immediate appeal may materially advance the
ultimate termination of litigation.”); see also Feagan v. Wilson, No. 11-21-00032-CV, 2021 WL
1134804, at *1-2 (Tex. App.—Eastland Mar. 25, 2021, no pet.) (mem. op.); Patel v. Nations
Renovations, LLC, No. 02-21-00031-CV, 2021 WL 832719, at *2 (Tex. App.—Fort Worth Mar.
4, 2021, no pet.) (per curiam) (mem. op.); Int’l Business Machines Corp. v. Lufkin Indus., Inc.,
No. 12-20-00249-CV, 2020 WL 6788140, at *3 (Tex. App.—Tyler Nov. 18, 2020, pet. dism’d)
(per curiam) (mem. op.).
Nevertheless, Appellants assert that the substance of the trial court’s rulings is clear from
the face of the record, specifically, their jurisdictional pleas and the responses thereto. Citing the
trial court’s orders denying the pleas and granting permissive appeal on certain issues, they
maintain that the trial court resolved these questions in Appellees’ favor and these questions
were certified for appeal. 4 They further argue that this is not a case in which they “asserted a
litany of unrelated legal theories in their motions to the trial court, and then had several unrelated
legal questions certified for appeal.” See generally McCroskey v. Happy State Bank, No. 07-14-
00027-CV, 2014 WL 869577, at *1 & n.2 (Tex. App.—Amarillo Feb. 28, 2014, no pet.)
(dismissing permissive appeal where trial court did not substantively rule on eight multi-faceted
questions). Appellants maintain that “the record clearly indicates the substantive rulings of the
trial court on each of the certified questions of law. This is sufficient.” See generally Int’l
Business Machines Corp., 2020 WL 6788140, at *3 (order granting permission to appeal set
forth no substantive ruling on any of the three issues identified therein; nor did the record
otherwise indicate trial court’s substantive ruling on each issue).

4 According to Appellants, the jurisdictional evidence is undisputed, and the trial court ruled on the
evidence as a question of law. See generally Tex. Dept. of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 228
(Tex. 2004) (“if the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the
trial court rules on the plea to the jurisdiction as a matter of law”). Appellees take the position that the evidence is
not undisputed. See Diamond Prods. Int’l, Inc. v. Handsel, 142 S.W.3d 491, 494 (Tex. App.—Houston [14th
Dist.] 2004, no pet.) (statute does not contemplate permissive appeals when facts are in dispute). Regardless, the
record must still reflect substantive rulings on the controlling legal issues.

6
The trial court’s orders reflect rulings on the second amended pleas to the jurisdiction
filed by each of the Administrator Appellants and the joint plea to the jurisdiction. 5 In its second
amended plea to the jurisdiction, HealthFirst asserted governmental immunity, arguing that
Appellees failed to plead facts affirmatively demonstrating the trial court’s jurisdiction over their
governmental claims and the undisputed facts establish a lack of jurisdiction. It argued that (1)
Texas, the City of Tyler, Tyler ISD, and Wood County 6 have governmental immunity from suit
unless abrogated by the legislature; (2) Tyler Plan, Tyler ISD Plan, and Wood County Plan, as
self-insurance funds of state political subdivisions, have governmental immunity, absent waiver;
and (3) third-party administrators for government health plans, like HealthFirst, have the same
immunity from suit as the governmental entities and their plans. HealthFirst asserted:

Each of the Governmental Entities funds its own health benefits plan, and each determines what
benefits, if any, it will provide to its employees and other beneficiaries. Although HealthFirst
provides services to each of the Governmental Entities to facilitate the provision of health care
benefits by those entities, HealthFirst does not have a financial stake in whether any of the claims
for services provided to the beneficiaries of the Governmental Entities Plans are approved or
denied. HealthFirst has no discretionary authority to interpret the terms of the Governmental
Entities Plans or adjudicate claims under the terms of its agreements with those plans; each of the
Governmental Entities retains sole and exclusive authority to determine coverage issues under its
plan. Moreover, because each of the Governmental Entities is responsible for paying claims for
benefits under its plan, HealthFirst’s actions in paying Plaintiffs’ claims in accordance with the
provisions of the Governmental Entities Plans render the Governmental Entities “responsible for
paying the claims…[and] expose State funds, an outcome that has…encouraged Texas courts to
extend immunity to health insurance plan administrators.”

(internal citations omitted). HealthFirst further argued that Appellees failed to plead waiver of
governmental immunity:

Each of Plaintiffs’ causes of action against HealthFirst is premised on Plaintiffs’ supposed rights
under the Ancillary Services Agreement and what they call “Payor Agreements,” but Plaintiffs
have failed to plead sufficient jurisdictional facts demonstrating a waiver of HealthFirst’s

5 See FKM P’ship, Ltd. v. Bd. of Regents of Univ. of Hous. Sys., 255 S.W.3d 619, 633 (Tex. 2008)

(“[A]mended pleadings and their contents take the place of prior pleadings”).
6
The online Smith County court records reflect that Wood County is not a party to the underlying
proceeding. According to the record, Health-First is the third-party administrator for the health benefit plan
sponsored by Wood County. Appellees allege that on information and belief (1) Administrator Appellants “entered
into a Payor Agreement (as that agreement is defined in the Ancillary Services Agreement) with Wood County so
that Wood County could become a participating payor in the AccessDirect network and its participants and
beneficiaries could access RCG’s life-sustaining dialysis services,” (2) “Wood County had responsibilities to enter
and/or oversee network contracts, and/or adjudicate claims and appeals for the Wood County Plan in accordance
with network and other agreements,” and (3) the “Wood County Payors, and/or another entity with the ability to
bind the Wood County Plan, entered into one or more agreements with AccessDirect and/or HealthFirst, under
which the Wood County Plan became a participating payor in the AccessDirect network.”

7
governmental immunity in connection with those causes of action. Plaintiffs’ breach of contract
cause of action is premised on their purported rights under the Ancillary Services Agreement, and
their request for declaratory relief is premised on their imagined rights under a “unified contract”
consisting of the Ancillary Services Agreement and “Payor Agreements.”

According to HealthFirst, Appellees failed to plead “facts demonstrating that either the Ancillary
Services Agreement or any of the supposed Payor Agreements is a ‘written contract stating the
essential terms of the agreement for providing goods or services to the local governmental entity
that is properly executed on behalf of the local governmental entity.’” See TEX. LOC. GOV’T
CODE ANN. § 271.152 (West 2016) (“local governmental entity that is authorized by statute or
the constitution to enter into a contract and that enters into a contract subject to this subchapter
waives sovereign immunity to suit for the purpose of adjudicating a claim for breach of the
contract,” subject to the terms and conditions of subchapter I). HealthFirst asserted:

The Ancillary Services Agreement, a contract executed only by RCG Texas and AccessDirect, is
on its face neither a contract properly executed on behalf of HealthFirst nor one stating the
essential terms of an agreement for providing services to HealthFirst. Similarly, although
Plaintiffs allege, based upon unspecified “information and belief,” that HealthFirst entered into
Payor Agreements, Plaintiffs do not plead any facts demonstrating that any such agreement was a
written contract as required by Section 271.152. Indeed, they cannot make that allegation,
because neither HealthFirst, any of the Governmental Entities, nor any of the Governmental
Entities Plans has executed a written Payor Agreement, and none has authorized any other entity
to enter into a written Payor Agreement on its behalf. Moreover, neither HealthFirst, any of the
Governmental Entities, nor any of the Governmental Entities Plans has executed a written contract
with Plaintiffs stating the essential terms of an agreement for providing goods or services to it, and
none has authorized any other entity to enter into any such written agreements with Plaintiffs on
its behalf.

HealthFirst stated it is undisputed that it has governmental immunity, which has not been
waived:

(1) Tyler is a Texas home-rule municipality and political subdivision of the State of Texas, (2)
Tyler Plan is a health benefits plan established by Tyler for the benefit of Tyler’s eligible
employees and their eligible dependents whose benefits are self-funded through a benefit fund or
trust established by Tyler and self-funded with contributions from Tyler; (3) Tyler ISD is a public
Texas independent school district and a political subdivision of the State of Texas, (4) Tyler ISD
Plan is a health benefits plan established by Tyler ISD for the benefit of its eligible employees and
their eligible dependents under the authority of TEX. EDUC. CODE § 22.005 whose benefits are
self-funded through a benefit fund or trust established by Tyler ISD and self-funded with
contributions from Tyler ISD; (5) Wood County is a Texas county and political subdivision of the
State of Texas, and (6) Wood County Plan is a health benefits plan established by Wood County
for the benefit of its eligible employees and their eligible dependents under the authority of TEX.
GOVT. CODE Chapter 2259 whose benefits are self-funded through a benefit fund or trust
established by Wood County and self-funded with contributions from Wood County. Similarly,
there can be no dispute that each of the Governmental Entities funds its own health benefits plan
and each determines what benefits, if any, it will provide to its employees and other beneficiaries.

8
HealthFirst has shown that it facilitates the provision of health care benefits by the Governmental
Entities but does not have a financial stake in whether any of the claims for services provided for
the plans’ beneficiaries are approved or denied. HealthFirst has also provided evidence showing
that it has no discretionary authority to interpret the terms of the Governmental Entities Plans or
adjudicate claims. Moreover, HealthFirst has shown that its actions in paying Plaintiffs’ claims in
accordance with the provisions of the plans would render the Governmental Entities responsible
for paying the claims, in that each of the Governmental Entities has agreed to indemnify it “from
and against any and all claims…to the extent that such claims…arise out of or are based upon…
an interpretation of the Plan.”
…
The undisputed evidence also establishes that HealthFirst’s governmental immunity has not been
waived. Indeed, it is undisputed that HealthFirst never executed the kind of written Payor
Agreement upon which Plaintiffs base their claims, authorized any other entity to enter into such a
Payor Agreement on its behalf, executed a written contract with either of the Plaintiffs stating the
essential terms of an agreement for providing goods or services to it, or authorized any other entity
to enter into any such written agreement with either of the Plaintiffs on its behalf.

In its second amended plea, AccessDirect likewise asserted governmental immunity
based on its provision of services to the City of Tyler, Tyler ISD, Wood County, and each
entity’s self-funded health benefits plan. It argued the following:

Defendant provided services to the City of Tyler and its self-funded health benefits plan, the Tyler
Independent School District and its self-funded health benefits plan, and Wood County and its
self-funded health benefits plan in facilitating the provision of health care benefits to the
beneficiaries of the plans. Each of those entities has governmental immunity from suit in
connection with the Governmental Claims. Each governmental entity funds its own health benefits
plan, and each governmental entity determines what benefits, if any, it will provide to its
employees and other beneficiaries. Defendant does not have a financial stake in whether any of
the claims for services provided to the beneficiaries of the Plans of the City of Tyler, Tyler
Independent School District, and Wood County are approved or denied.

(Internal citations omitted).
Appellants also filed a joint plea to the jurisdiction and alternative summary judgment
motion on grounds that Appellees’ claims are preempted by ERISA because those claims meet
the two prongs of the ERISA preemption test. See Hubbard v. Blue Cross & Blue Shield Ass’n,
42 F.3d 942, 945 (5th Cir. 1995) (ERISA bars claims when “(1) the state law claim addresses an
area of exclusive federal concern, such as the right to receive benefits under the terms of an
ERISA plan; and (2) the claim directly affects the relationship between the traditional ERISA
entities—the employer, the plan and its fiduciaries, and the participants and beneficiaries”); see
also Ambulatory Infusion Therapy Specialist, Inc. v. N. Am. Adm’rs, Inc., 262 S.W.3d 107,
113 (Tex. App.—Houston [1st Dist.] 2008, no pet.). Regarding the first prong, they argued that
Appellees’ claims relate to the plans because they “challenge how Plaintiffs’ requests for

9
payment were processed and the administration of the Plans, areas of exclusive federal concern.”
Appellants argued as follows:

Plaintiffs’ complaints about the processing of their claims and the administration of the Plans are
at the heart of Plaintiffs’ Claims. Plaintiffs make this clear in the Petition when, for example, they
allege as part of their breach of contract claims:

On information and belief, HealthFirst and AccessDirect assisted the Payors in
attempting to evade their network payment responsibilities by advising the
Payors in implementing plan document provisions that specifically target and
reduce reimbursement for dialysis, without RCG’s consent.

HealthFirst further breached the Ancillary Services Agreement by administering
and processing medical claims in contravention of the Ancillary Services
Agreement and Network Agreement and making decisions to price claims below
the Network Rate.

Similarly, Plaintiffs’ implied-in-fact contract cause of action against the AHS Defendants
challenges the administration of the Plans and how claims were processed and paid, in that
Plaintiffs complain (1) the claims were paid “at various rates below the Network Rate” and (2)
there was a “failure to pay . . . in accordance with the Network Rate” because of Plan provisions
that Plaintiffs allege “specifically target and reduce” payments to Plaintiffs. And Plaintiffs’ unjust
enrichment claims are grounded in Plaintiffs’ complaints about the administration of the Plans and
Defendants’ processing of claims, in that Plaintiffs allege, for example, that “HealthFirst was the
TPA handling claims administration and, in that capacity, HealthFirst processed the claims and
decided how much should be paid on each claim…[so that the] AHS Defendants, HealthFirst, or
third parties acting on their behalf also forcibly recouped some payments…” Because Plaintiffs’
allegations challenge the processing and payment of benefit claims and the administration of
ERISA benefit plans, those allegations establish that Plaintiffs’ Claims encroach on areas of
exclusive federal concern and consequently meet the first prong of the conflict preemption test.

Regarding the second prong, Appellants argued that Appellees’ claims “directly affect the
relationship between traditional ERISA entities–the employer, the plan and its fiduciaries, and
the participants and beneficiaries.” According to Appellants, Appellees’ claims constitute a
collateral challenge to an ERISA administrator’s coverage determinations and are preempted
because Appellees “assert that they are medical service providers seeking compensation, not
under the terms of an ERISA-governed plan, but pursuant to the provisions of a contractual
arrangement independent of the plan’s obligation to pay.” Appellants represent that there is no
dispute that each patient has some coverage under the plans for dialysis services and this dispute
concerns the extent of such coverage. They maintain that “although Plaintiffs’ Claims are
couched in terms of an attempt to recover on an independent promise to pay, those claims are
really an attempt to expand the rights of the Patients under their ERISA plans.” But according to

10
Appellants, “resolution of those claims requires an inquiry into the administration of an ERISA-
governed plan, an area of exclusive federal concern.”
For these reasons, Appellants argued that the jurisdictional facts are undisputed such that
the trial court’s jurisdiction is negated. They point to the following for support:

As demonstrated above, Plaintiffs have obtained assignments of the Patients’ rights and benefits
under the Plans and are authorized to act as the Patients’ personal representatives. In their demand
letters to Defendants[,] Plaintiffs asserted that their claims against Defendants were based on the
Patients’ rights under the Plans and that Fresenius 7 was making demand on Defendants “in its
capacity as an assignee to the rights and benefits of the Patients.” Plaintiffs asserted in their
demand letters that the Plans’ adjudication and payment of Plaintiffs’ claims were contrary to the
Plans’ own documents and that the Plans’ reliance on Plan document provisions did not trump the
provisions of the Ancillary Services agreement. Plaintiffs explicitly confirmed in their demand
letters they were seeking additional benefits due under the Plans. They also asserted in those
demand letters that ERISA prohibited Defendants’ recoupment efforts. Finally, Plaintiffs asserted
that Defendants’ handling of Fresenius’s claims violated applicable ERISA provisions and
demanded a “full and fair review of its appeals by a fiduciary of the Plan” as well as Plan
documents relevant to Defendants’ benefit determinations.

Simply reviewing the pertinent jurisdictional pleas and responses does not inform this
Court of the trial court’s rulings. For instance, regarding Administrator Appellants’ pleas, the
trial court could have found that they are not entitled to the same immunity as the governmental
entities. Conversely, the trial court could have found that they are entitled to immunity, but that
immunity was waived. Regarding the joint plea, with respect to question one, it is not apparent
from the record whether the trial court found that a unified network agreement can be formed by
multiple contracts signed by different parties and, if so, whether those contracts bind all parties
to the terms of an agreement they did not sign absent an express written commitment to be so
bound. And with respect to question two, the trial court was required to determine whether
ERISA preempted Appellees’ claims and, in so doing, decide whether the two prongs of
preemption applied. If the trial court concluded ERISA does not preempt Appellees’ claims, the
trial court could have found that prong one applied but not prong two, or vice versa, or that
neither prong applied. While we could presume from the trial court’s overruling of the pleas and
the specific questions presented for appeal, that the trial court believed Appellants can be bound
to the terms of an agreement they have not signed, Appellees’ claims are not preempted by
ERISA, and Administrator Appellants are not entitled to immunity, we decline to so speculate.

7 Fresenius appears to refer to Fresenius Medical Care Holdings, Inc. d/b/a Fresenius Medical Care North

America, of which Appellees are affiliates.

11
Concluding that the trial court made certain findings, based on speculation, would render Rule
168 meaningless.
Accordingly, we conclude that the record demonstrates that the trial court could have
denied the pleas based on one or more conclusions. See JETX Energy, LLC v. Lonestar
Operating, LLC, No. 10-23-00073-CV, 2023 WL 3346572, at *1-2 (Tex. App.—Waco May 10,
2023, no pet.) (mem. op.) (denying and dismissing for want of jurisdiction petition for
permissive appeal; examination of arguments in record revealed that trial court could have
granted each motion based on one or more conclusions of law); see also Safeco Ins. Co. of
Indiana v. Rodriguez, No. 07-18-00150-CV, 2018 WL 3031597, at *2 (Tex. App.—Amarillo
June 13, 2018, order) (denial of summary judgment combined with identification of “controlling
question of law” in same order could imply a ruling on controlling legal question, but appellate
court declined to indulge in such speculation because trial court may have based denial of
summary judgment on unrelated material question of fact); Orion Marine Constr., Inc. v.
Cepeda, No. 01-18-00323-CV, 2018 WL 3059756, at *2 (Tex. App.—Houston [1st Dist.] June
21, 2018, no pet.) (mem. op.) (“[a]n unexplained ruling is not subject to permissive appeal if its
substantive basis is unstated and not apparent from the appellate record”); Borowski v. Ayers,
432 S.W.3d 344, 348 (Tex. App.—Waco 2013, no pet.) (dismissing permissive appeal for trial
court’s failure to substantively rule on controlling legal issue; controlling question was actually
two questions and trial court could have denied summary judgment for either of two reasons).
As such, the orders serve as nothing more than an attempt to certify three legal questions for our
review. Section 51.014(d) does not contemplate using an interlocutory appeal as a mechanism to
present certified questions. Bancalari, 495 S.W.3d at 889. Under these circumstances, any
opinion issued by this Court would necessarily be advisory because there is nothing in the record
showing that the trial court ruled on the specific legal issues that Appellants present to us to
decide. Id. at 889-90; Bank of New York Mellon v. Guzman, 390 S.W.3d 593, 597 (Tex.
App.—Dallas 2012, no pet.). Because the trial court failed to make substantive rulings on the
identified “controlling legal issues,” these questions certified by the trial court’s orders do not
involve controlling questions of law, and Section 51.014(d) does not authorize us to reach them
on interlocutory appeal. See Archibald v. El Paso Orthopedic Surgery Group, P.A., No. 08-22-
00091-CV, 2023 WL 2214184, at *7 (Tex. App.—El Paso Feb. 24, 2023, no pet.) (mem. op.);
see also Cepeda, 2018 WL 3059756, at *3 (to extent there are unresolved questions of law, a

12
permissive appeal is an improper vehicle for resolving them; appellate courts are “not statutorily
authorized to decide controlling questions of law in the first instance”); Borowski, 432 S.W.3d at
347 (legislature’s institution of permissive appeal procedure is “premised on the trial court
having first made a substantive ruling on the controlling legal issue being appealed”).

DISPOSITION
For the reasons discussed above, we deny the petition for permissive appeal.

Opinion delivered May 22, 2024.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

13
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

MAY 22, 2024

NO. 12-24-00056-CV

ACCESSDIRECT- A PREFERRED PROVIDER NETWORK, INC., AHS EAST TEXAS
HEALTH SYSTEM, LLC, ARDENT HEALTH SERVICES GROUP HEALTH PLAN,
CAVENDER STORES, LTD., CAVENDER STORES LTD. EMPLOYEE BENEFIT
PLAN, HEALTHFIRST TPA, INC., CITY OF TYLER, CITY OF TYLER MEDICAL
PLAN, TYLER INDEPENDENT SCHOOL DISTRICT, TYLER INDEPENDENT
SCHOOL DISTRICT MEDICAL BENEFIT PLAN,
Appellants
V.
RCG EAST TEXAS LLP AND RENAL CARE GROUP TEXAS, INC.,
Appellees

Permissive Appeal from the 114th District Court
of Smith County, Texas (Tr.Ct.No. 21-1554-B)

THIS CAUSE came to be heard on Appellant’s petition for permissive
appeal; and the same being considered, it is the opinion of this Court that the petition should be
denied.
It is therefore ORDERED, ADJUDGED and DECREED by this Court that
the petition for permissive appeal be, and the same is, hereby denied; and that this decision be
certified to the court below for observance.

By memorandum opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J