United States v. Healthcare Ally Management of California, LLC V. Wsp USA, Inc.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

HEALTHCARE ALLY
MANAGEMENT OF
CALIFORNIA, LLC,

Plaintiff - Appellant,

v.

WSP USA, INC.; AETNA LIFE
INSURANCE COMPANY,

Defendants - Appellees.
No. 24-3479
D.C. No.
2:22-cv-04814-
DMG-PVC

OPINION

Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding

Argued and Submitted August 22, 2025
Pasadena, California

Filed August 11, 2026

Before: Marsha S. Berzon, Stephen A. Higginson, and
Jennifer Sung, Circuit Judges.
*

*
The Honorable Stephen A. Higginson, United States Circuit Judge for
the U.S. Court of Appeals for the Fifth Circuit, sitting by designation.

2 HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC.
Opinion by Judge Berzon

SUMMARY
**

Employee Retirement Income Security Act /
Preemption

The panel affirmed in part and reversed in part the
district court’s dismissal and remanded for further
proceedings in an action brought under the Employee
Retirement Income Security Act (“ERISA”) and California
state law by Healthcare Ally Management of California,
LLC (“HAMOC”), against WSP USA, Inc., and Aetna Life
Insurance Co.
The case arose from a dispute over the proper payment
rate for a surgery that took place at the La Peer Surgery
Center. At the time, the patient was enrolled in an ERISA
healthcare plan provided by the patient’s employer, WSP,
and Aetna administrated the plan. Before providing out-of-
network surgical services, La Peer placed a verification call
to Aetna, which told La Peer that the patient would cover a
portion of the surgery but that WSP’s plan would pay the
remaining balance at the usual, customary, and reasonable
rate and that payment would not be based on the Medicare
fee schedule. Contrary to Aetna’s representation, however,
WSP paid La Peer not at the USR rate, but at the Medicare
rate, which amounted to five percent of La Peer’s bill.
HAMOC, La Peer’s successor in interest, brought
suit. The district court held that HAMOC lacked derivative

**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC. 3
standing to assert an ERISA claim on La Peer’s behalf and
dismissed that claim. The district court dismissed the
remainder of HAMOC’s complaint pursuant to Fed. R. Civ.
P. 12(b)(6), concluding that the state law claims necessarily
depended on the existence of an ERISA-covered plan and so
were preempted by ERISA.
Under 29 U.S.C. § 1144(a), ERISA preempts all state
laws that “relate to” any healthcare plan regulated by the
statute. The two categories of state-law claims that “relate
to” an ERISA plan are claims that have a “reference to” an
ERISA plan and claims that have “an impermissible
connection with” an ERISA plan.
Reversing in part, the panel held that ERISA did not
preempt HAMOC’s negligent misrepresentation claim,
which arose from coverage representations made to an out-
of-network medical provider during a verification call in
advance of medical services. Because this claim did not
focus on an ERISA-regulated relationship, it was not
preempted under the “connection with” test. Agreeing with
other circuits, the panel concluded that the negligent
misrepresentation claim was not preempted under the
“reference to” test because it was not a claim that Congress
could have intended to route through ERISA’s civil
enforcement scheme. Rather, HAMOC was simply an
independent entity claiming damages. The panel explained
that the result it reached accorded with the underlying
premises of ERISA preemption. The panel distinguished
Bristol SL Holdings, Inc. v. Cigna Health & Life Ins. Co.,
103 F.4th 597 (9th Cir. 2024), which held that ERISA
preempted state law breach of contract and promissory
estoppel claims.

4 HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC.
Affirming in part, the panel held that under Bristol,
ERISA preempted HAMOC’s California state law claim of
promissory estoppel.

COUNSEL
Jonathan A. Stieglitz (argued), Stieglitz Law, Los Angeles,
California, for Plaintiff-Appellant.
Jonathan M. Herman (argued) and Joel A. Mintzer, Jonathan
M. Herman PC, Los Angeles, California, for Defendants-
Appellees.

OPINION
BERZON, Circuit Judge:
The Employee Retirement Income Security Act of 1974
(“ERISA”) contains a provision that expressly preempts all
state laws that “relate to” any healthcare plan regulated by
the statute. 29 U.S.C. § 1144(a). We consider whether
ERISA preempts a state law negligent misrepresentation
claim that arises from coverage representations made to an
out-of-network medical provider in advance of medical
services. We hold that ERISA does not preempt the claim
and so reverse.
I
This case arises from a dispute over the proper payment
rate for a surgery that took place at the La Peer Surgery

HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC. 5
Center.
1
At the time, the patient was enrolled in an ERISA
healthcare plan provided by the patient’s employer,
defendant WSP USA, Inc. Defendant Aetna Life Insurance
Company administered WSP’s healthcare plan by
coordinating with medical providers like La Peer and
processing those providers’ reimbursement claims under the
terms of WSP’s health benefit plan.
As is common practice in the health insurance industry,
WSP’s healthcare plan differentiated “in-network” providers
from “out-of-network” providers, a distinction that
determines how the plan reimburses providers for the
medical services they perform. In-network providers enter
written preferred-provider contracts with healthcare plans
and agree to accept discounted reimbursements for their
services. In exchange for these discounts, the plans provide
incentives for their members to seek in-network treatment,
thereby increasing the total volume of an in-network
provider’s business.
By contrast, out-of-network providers do not have
preexisting contractual agreements in place with a given
healthcare plan. Insurers often reimburse out-of-network
providers a percentage of the market rate for a given
procedure, but such providers can charge higher rates
because, unlike in-network providers, they have not agreed
in advance to accept discounted reimbursements. Out-of-
network providers typically receive from insurers the

1
This appeal comes to us from an order granting a motion to dismiss
under Federal Rule of Civil Procedure 12(b)(6). We therefore “accept as
true” the “well-pleaded allegations of material fact” in the operative,
third amended complaint and “construe [those facts] in the light most
favorable to the non-moving party.” Daniels-Hall v. Nat’l Educ. Ass’n,
629 F.3d 992, 998 (9th Cir. 2010).

6 HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC.
“Usual, Customary, and Reasonable” (“UCR”) rate for their
services, a term that denotes the average amount paid for a
specific procedure in a given geographic area based on what
other providers in that area charge for the same service, but
Medicare coverage can affect whether the UCR rate
applies.
2
Because out-of-network providers lack contractual
reimbursement agreements with healthcare plans, they often
place a “verification call” to the plan administrator before
performing a procedure to confirm that the patient is eligible
for coverage, to ascertain that the particular procedure is
covered, and to learn the likely reimbursement rate.
La Peer provided out-of-network surgical services for
the patient in this case.
3
B efore doing so, La Peer placed a
verification call to Aetna to confirm that the patient’s plan
would pay the surgery center for the procedure. On that call,
Aetna told La Peer that the patient would cover a portion of
the surgery as an out-of-pocket expense but that WSP’s plan
would pay the remaining balance at the UCR rate.
4
Aetna

2
For a patient covered by both Medicare and by employer-sponsored
healthcare, the rate paid to the provider may depend on which insurance
is considered the patient’s “primary” insurance. See Ctrs. for Medicare
& Medicaid Servs., How Medicare Works with Other Insurance, 1, 4
(Feb. 2026), https://www.medicare.gov/publications/02179-how-
medicare-works-with-other-insurance.pdf [https://perma.cc/5NSY-
UVZN].
3
The dispute here arises from a phone call between La Peer and Aetna.
Neither the patient nor La Peer is a party to this litigation. The patient
assigned their reimbursement rights to La Peer, who in turn assigned
those rights to plaintiff Healthcare Ally Management.
4
The complaint does not specify whether La Peer told Aetna that the
patient was Medicare-covered or Medicare-eligible. The complaint does
state that neither defendant informed La Peer of any provision in the
patient’s health insurance policy that limited the method of payment for
services provided.

HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC. 7
also told La Peer that “payment would not be based on the
Medicare Fee Schedule.”
5
Neither Aetna nor WSP informed
La Peer before the surgery that the plan contained
exclusions, limitations, or qualifications that might reduce or
otherwise impact Aetna’s promised UCR reimbursement
rate. Nor did Aetna or WSP provide La Peer with a copy of
the plan before the surgery.
After receiving assurance that WSP’s plan would pay for
the surgery at the UCR rate, La Peer moved forward with the
procedure. La Peer then sent a bill to WSP. Sometime later,
WSP paid La Peer for the patient’s surgery. Contrary to
Aetna’s representation in its phone call with La Peer, WSP
paid La Peer not at the UCR rate but, instead, at the Medicare
rate, which amounted to five percent of La Peer’s bill. The
complaint does not state whether WSP provided an
explanation for paying at the Medicare rate or, if so, what
that explanation was.
Healthcare Ally Management of California
(“HAMOC”), La Peer’s successor in interest, sued both
WSP and Aetna in California state court, initially asserting
only state law claims. After WSP removed the case to federal
court on federal question grounds—ERISA complete
preemption, see Metro. Life Ins. Co. v. Taylor, 481 U.S. 58,
66 (1987)—and diversity grounds, HAMOC amended its
complaint to “remove those causes of action that are
preempted by [ERISA],” including a breach of contract

5
The Medicare Fee Schedule is a list developed by the Centers for
Medicare & Medicaid Services that specifies the maximum
reimbursement rates that Medicare will pay providers for their services.
See Ctrs. for Medicare & Medicaid Servs., Fee Schedules
(2025),
https://www.cms.gov/medicare/payment/fee-schedules
[https://perma.cc/EAY2-3FK7]. The Medicare Fee Schedule typically
specifies a lower rate of payment than does the UCR.

8 HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC.
claim and a claim brought pursuant to California’s Unfair
Competition Law. The operative, third amended complaint
asserts two state law claims: negligent misrepresentation and
promissory estoppel. HAMOC also asserts a third cause of
action for failure to pay ERISA plan benefits under 29
U.S.C. § 1132(a)(1)(B).
The district court held that HAMOC lacked derivative
standing to assert an ERISA claim on La Peer’s behalf and
so dismissed that claim.
6
The court dismissed the remainder
of HAMOC’s complaint pursuant to Rule 12(b)(6),
concluding that the state law claims “necessarily depend on
the existence of an ERISA-covered plan” and so were
preempted. Healthcare Ally Mgmt. of Cal., LLC v. WSP
USA, Inc., No. CV 22-4814-DMG, 2024 WL 2880204, at *4
(C.D. Cal. May 1, 2024). ERISA preemption is “a question
of law that we review de novo.” Johnson v. Couturier, 572
F.3d 1067, 1078 (9th Cir. 2009).
II
Congress enacted ERISA in 1974 to protect the interests
of those who receive health insurance through their
employers. See 29 U.S.C. § 1001. Recognizing “that the
continued well-being and security of millions of employees
and their dependents are directly affected by [employee
benefit] plans,” id. § 1001(a), Congress designed a statute
that “comprehensively regulates . . . employee welfare
benefit plans that . . . provide medical, surgical, or hospital
care” to their beneficiaries, Pilot Life Ins. Co. v. Dedeaux,
481 U.S. 41, 44 (1987). In particular, ERISA “establish[es]
standards of conduct, responsibility, and obligation for
fiduciaries of employee benefit plans.” 29 U.S.C. § 1001(b).

6
HAMOC does not appeal this ruling.

HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC. 9
Among other things, ERISA’s substantive provisions require
health insurance plans to disclose certain information to
covered individuals, to compile and file annual financial
reports with the Secretary of Labor, and to adhere to a variety
of standards of conduct and fiduciary duties. See, e.g., id.
§§ 1021–1032, 1102(a), 1104. To that end, ERISA includes
several provisions that together operate to “provide a
uniform regulatory regime over employee benefit plans.”
Aetna Health Inc. v. Davila, 542 U.S. 200, 208 (2004). Two
of those provisions are principally relevant here.
First, ERISA protects the interests of “participants” and
“beneficiaries”—those entitled to benefits under an
employee welfare plan—by setting forth a “comprehensive
civil enforcement scheme.” Pilot Life, 481 U.S. at 54. That
scheme—ERISA § 502, 29 U.S.C. § 1132—authorizes
certain individuals and entities to bring suit for various
reasons.
7
For our purposes, ERISA specifies two parties that
may bring a civil action “to recover benefits due to him under
the terms of his plan.” 29 U.S.C. § 1132(a). Those parties
include plan “participant[s]” and plan “beneficiar[ies],” id.,
titles which generally refer to individuals eligible to receive
benefits, like medical care, under the terms of an employee
benefit plan, see id. § 1002(7)–(8).
Section 502(a)’s specification that particular parties may
sue under ERISA “represents a careful balancing” of
interests encompassed by ERISA’s civil enforcement
regime. Pilot Life, 481 U.S. at 54. The Supreme Court has
recognized that this scheme “would be completely
undermined if ERISA-plan participants and beneficiaries

7
For example, a participant, beneficiary, or fiduciary may sue a plan to
enjoin practices which violate ERISA or to obtain equitable relief to
enforce provisions of ERISA. See 29 U.S.C. § 1132(a)(3).

10 HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC.
were free to obtain remedies under state law that Congress
rejected in ERISA.” Id. Critically, “health care providers”
like surgical centers, doctors’ offices, and hospitals “are not
‘beneficiaries’ within the meaning of ERISA’s enforcement
provisions.” DB Healthcare, LLC v. Blue Cross Blue Shield
of Ariz., Inc., 852 F.3d 868, 874 (9th Cir. 2017). That is the
case even when an ERISA participant or beneficiary receives
plan-covered treatment from a provider for which the
provider later receives reimbursement from an insurance
company. Remuneration to a “medical provider for services
rendered is not properly termed a ‘benefit’ to the provider,”
such that § 502(a) would vest in providers the direct
authority as beneficiaries to bring suit. Id. at 874–75. The
upshot is that ERISA does not establish a cause of action for
medical care providers who contend that an ERISA plan or
its administrator, often an insurance company, has not paid,
or has paid too little, for covered healthcare.
This gap in ERISA’s enforcement system has led
providers to seek various ways to litigate payment disputes
with ERISA plans and their administrators. From the
provider’s perspective, the most straightforward way to
litigate such disputes is for the patient to assign to the
provider their § 502(a) right to sue. “ERISA does not forbid
assignment by a beneficiary of his right to reimbursement
under a health care plan to the health care provider.” Misic
v. Bldg. Serv. Emps. Health & Welfare Tr., 789 F.2d 1374,
1377 (9th Cir. 1986) (per curiam). So a provider seeking to
sue a plan or plan administrator for benefits under § 502(a)
often can “do so derivatively, relying on its patients’
assignments of their benefits claims.” Spinedex Physical
Therapy USA Inc. v. United Healthcare of Ariz., Inc., 770
F.3d 1282, 1289 (9th Cir. 2014).

HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC. 11
But the assignment solution does not always work. Plans
can foreclose such assignments by including an “express
non-assignment clause in the plan.” Davidowitz v. Delta
Dental Plan of Cal., Inc., 946 F.2d 1476, 1481 (9th Cir.
1991). In that circumstance, a provider cannot sue under
§ 502(a) and must instead resort to a different cause of
action. Such causes of action take different forms, often
depending upon whether the provider is in-network or out-
of-network with regard to the relevant health benefit scheme.
In-network providers enter separate contractual
agreements with their patients’ employee benefit plans.
Those agreements specify rates at which providers will
accept and plan administrators will pay for services rendered
under an employee benefit plan. See, e.g., Blue Cross of Cal.
v. Anesthesia Care Assocs. Med. Grp., Inc., 187 F.3d 1045,
1048 (9th Cir. 1999) (describing in-network provider
agreements); Bristol SL Holdings, Inc. v. Cigna Health &
Life Ins. Co., 103 F.4th 597, 599–600 (9th Cir. 2024) (same).
When a provider disputes the plan administrator’s payment
for ERISA-plan covered services, that provider can do so by
bringing a cause of action, alleging that the plan breached
the provider agreement. Such breach of contract claims
“arise from the terms of [the] provider agreements[,] . . . are
not claims for benefits under the terms of ERISA plans,” and
have been held not preempted by ERISA. Blue Cross of Cal.,
187 F.3d at 1050. Thus, even when ERISA-plan benefits are
at issue, in-network providers have a remedy other than a
derivative § 502(a) benefits claim.
Out-of-network providers, on the other hand, have no
direct contracts with ERISA plans. When a dispute arises,
“the terms of the benefit plan [are] the provider’s only basis
for [a] reimbursement claim.” Id. at 1051. Assignment
makes it “unnecessary for health care providers to evaluate

12 HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC.
the solvency of patients before commencing medical
treatment.” Misic, 789 F.2d at 1377. So out-of-network
providers regularly seek assignment of benefit rights from
their patients. See, e.g., Spinedex Physical Therapy, 770 F.3d
at 1288.
But what happens when out-of-network providers
provide healthcare services to patients whose plans do not
allow assignments? In such instances, providers can
sometimes succeed in enforcing an assignment; a plan
administrator “waive[s] the right to enforce an anti-
assignment provision” if the administrator is aware of the
assignment yet fails to “raise the anti-assignment provision
as a basis to deny benefits” during claim processing. Beverly
Oaks Physicians Surgical Ctr. , LLC v. Blue Cross & Blue
Shield of Ill., 983 F.3d 435, 440–41 (9th Cir. 2020). Absent
a waiver, however, out-of-network providers may lack any
ability to recover from the plans directly.
8

Providers can, of course, require up-front payments from
their patients, who in turn can file a claim for reimbursement
with their employee benefit plan for the benefits due to them.
See Misic, 789 F.2d at 1377. Even then, out-of-network
providers regularly verify with plan administrators whether
their patients are covered and at what level. That practice
allows the providers to determine a patient’s total cost
burden, adjudge the patient’s likely ability to meet it, and
determine whether they will bill the patient or the insurance
provider for the procedure.

8
Here, La Peer had a different problem: It assigned claims for collection
to a third party, HAMOC, that lacked derivative standing to sue as an
assignee under ERISA.

HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC. 13
Attempts by out-of-network providers to secure from
ERISA plans payment they allege is owed for services
rendered to plan-covered patients have given rise to a myriad
of lawsuits in which such providers have asserted various
state law causes of action. See, e.g., The Meadows v. Emps.
Health Ins., 47 F.3d 1006 (9th Cir. 1995) (negligent
misrepresentation, estoppel, and breach of contract); Marin
Gen. Hosp. v. Modesto & Empire Traction Co., 581 F.3d 941
(9th Cir. 2009) (negligent misrepresentation, estoppel,
breach of contract, and quantum meruit); Depot, Inc. v.
Caring for Montanans, Inc., 915 F.3d 643 (9th Cir. 2019)
(fraudulent inducement, constructive fraud, negligent
misrepresentation, unjust enrichment, and unfair trade
practices); Bristol, 103 F.4th 597 (breach of oral contract,
breach of implied contract, and promissory estoppel);
Greany v. W. Farm Bureau Life Ins. Co., 973 F.2d 812 (9th
Cir. 1992) (negligence, unfair practices, tortious interference
with contract, conversion, and estoppel). This case arises
from one such suit—a suit for negligent misrepresentation
and promissory estoppel under state law, premised on
alleged representations made by an ERISA plan
administrator to an out-of-network service provider during a
verification call.
The potential barrier to such a lawsuit is the principal
statutory provision relevant to this case, ERISA’s famously
expansive preemption clause. 29 U.S.C. § 1144(a). That
provision specifies that ERISA “shall supersede any and all
State laws insofar as they . . . relate to any employee benefit
plan” covered by ERISA. Id. Where a federal law like
ERISA conflicts with and therefore preempts a state law, that
state law is “without effect.” Merck Sharp & Dohme Corp.
v. Albrecht, 587 U.S. 299, 314 (2019) (quoting Mut. Pharm.
Co. v. Bartlett, 570 U.S. 472, 480 (2013)).

14 HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC.
The text of ERISA’s preemption clause, “and in
particular, the phrase ‘relate to,’ is broad.” Depot, 915 F.3d
at 665. So broad, in fact, that “applying the ‘relate to’
provision according to its terms [is] a project doomed to
failure, since, as many a curbstone philosopher has observed,
everything is related to everything else.” Cal. Div. of Lab.
Standards Enf’t v. Dillingham Constr., N.A., Inc., 519 U.S.
316, 335 (1997) (Scalia, J., concurring). To avoid the
doomsday problem of relational overreach, the Court has
sought to provide “workable standards” for determining the
scope of § 1144(a), Depot, 915 F.3d at 665 (citation
omitted), lest ERISA’s preemptive effect “pick up every
ripple in the pond, producing a result that no sensible person
could have intended.” Egelhoff v. Egelhoff ex rel. Breiner,
532 U.S. 141, 153 (2001) (Scalia, J., concurring) (citation
modified). Under those standards, we have said, there are
“‘two categories’ of state-law claims that ‘relate to’ an
ERISA plan—claims that have a ‘reference to’ an ERISA
plan, and claims that have ‘an impermissible connection
with’ an ERISA plan.” Depot, 915 F.3d at 665 (citation
modified) (quoting Gobeille v. Liberty Mut. Ins. Co., 577
U.S. 312, 319–20 (2016)).
But identifying those categories hasn’t resulted in clarity
in applying ERISA’s express preemption provision. Much
like the “unhelpful text and the frustrating difficulty of
defining” the preemption clause’s “relate to” term, N.Y . State
Conf. of Blue Cross & Blue Shield Plans v. Travelers Ins.
Co., 514 U.S. 645, 656 (1995), the “reference to” and
“connection with” tests lack easily ascertainable bounds.
The Supreme Court has accordingly cautioned against
“uncritical literalism” that would extend ERISA’s
preemption clause to “infinite relations” or “infinite
connections.” Id. Instead, courts must “go beyond” the text

HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC. 15
of the statute and also beyond the short-form tests meant to
cabin statutory overreach, and look “to the objectives of the
ERISA statute as a guide to the scope of the state law that
Congress understood would survive,” Bast v. Prudential Ins.
Co. of Am., 150 F.3d 1003, 1007 (9th Cir. 1998) (quoting
Travelers, 514 U.S. at 656), “as well as to the nature of the
effect of the state law on ERISA plans,” Cal. Div. of Lab.
Standards Enf’t, 519 U.S. at 325. See also Dishman v.
UNUM Life Ins. Co. of Am., 269 F.3d 974, 980–81 (9th Cir.
2001). “[T]he purpose of Congress is the ultimate
touchstone” in every preemption analysis. Waks v. Empire
Blue Cross/Blue Shield, 263 F.3d 872, 874–75 (9th Cir.
2001) (quoting Fort Halifax Packing Co. v. Coyne, 482 U.S.
1, 8 (1987)); Ingersoll-Rand Co. v. McClendon, 498 U.S.
133, 138 (1990).
With those practical considerations and preemption
precepts in mind, we turn to considering whether ERISA
preempts HAMOC’s state law claim of negligent
misrepresentation.
III
The state law claim here at issue is California’s tort of
negligent misrepresentation. With some trepidation given
the imprecision of the “connection with” and “refer to” tests
meant to implement ERISA’s “relate to” preemption
standards, we shall begin by trying to apply those two
standards to the California negligent misrepresentation
claim HAMOC seeks to litigate, looking closely to cases that
have applied those tests.
9
We then turn to a more holistic,

9
Bristol SL Holdings, Inc. v. Cigna Health & Life Insurance Co. is one
such case. 103 F.4th 597 (9th Cir. 2024). The parties’ arguments center
largely on Bristol’s applicability. We consider Bristol separately, as its

16 HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC.
practical consideration of congressional intent, keeping in
view the particulars of ERISA coverage and the competing
interests of providers and ERISA-plan-covered employees.
A
We consider first the “connection with” prong of the
standard ERISA-preemption analysis, as it is more
straightforward and easier to apply.
“[T]he Supreme Court has not provided a succinct
definition of, or analytical framework for, evaluating the
phrase ‘connection with.’” Paulsen v. CNF Inc., 559 F.3d
1061, 1082 (9th Cir. 2009). Instead, we consider “the
objectives of the ERISA statute,” Gobeille, 577 U.S. at 320
(citations omitted), and “presum[e] that Congress does not
intend to supplant . . . state laws regulating a subject of
traditional state power,” id. at 325 (citation omitted). To do
this, our court employs a “relationship test.” Bafford v.
Northrop Grumman Corp., 994 F.3d 1020, 1031 (9th Cir.
2021). Key to this test is understanding that ERISA
“comprehensively regulates certain relationships.” Gen. Am.
Life Ins. Co. v. Castonguay, 984 F.2d 1518, 1521 (9th Cir.
1993). The relationship test determines whether Congress
intended to preempt state laws by addressing whether “the
claim bears on an ERISA-regulated relationship, e.g., the
relationship between plan and plan member, between plan
and employer, between employer and employee.” Bafford,
994 F.3d at 1031 (quoting Paulsen, 559 F.3d at 1082). For
example, in the in-network context, breach of contract
claims premised on stand-alone contractual agreements
between providers and insurers do not implicate “connection

pertinence to this case is best understood after we have surveyed the
operation of ERISA preemption standards more broadly.

HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC. 17
with” preemption. Providers are not ERISA-entities, and
such written agreements therefore do not govern ERISA
relationships. See Blue Cross of Cal., 187 F.3d at 1054.
Depot, Inc. v. Caring for Montanans, Inc. provides
another example of the application of the relationship test.
915 F.3d 643. The plaintiffs in Depot were employers in
Montana who provided their employees with health
insurance coverage under employee benefit plans
administered by the defendant health insurance companies.
Id. at 650. During contract negotiations, the insurers
represented to the employers that monthly insurance
premiums for the employee benefit plans would include only
the cost of benefits, a representation upon which the
plaintiffs relied when agreeing to participate in the plan. Id.
at 651. The employers later learned that such representations
were false. The insurance companies, it turned out,
“unlawfully padded the premiums with two surcharges
without [the] plaintiffs’ knowledge or consent.” Id. Plaintiffs
sued, asserting several state law causes of action, including
a negligent misrepresentation claim. Id. at 652.
Applying the relationship test, Depot held that ERISA
did not preempt the state law claims. Id. at 666–67. We
acknowledged that both the plaintiffs and defendants were
ERISA entities, so the claim “involve[d] an ERISA-
regulated relationship.” Id. at 666. But the presence of such
a relationship did not alone require preemption, because the
“relationship [was] unrelated to plaintiffs’ state-law claims,
which focus[ed] on the misrepresentations made by
defendants while they were operating ‘just like any other
commercial entity.’” Id. (quoting Paulsen, 559 F.3d at
1083). That holding aligns with the Supreme Court’s
admonishment not to apply the “connection with” test with
“uncritical literalism.” Travelers, 514 U.S. at 656. The

18 HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC.
negligent misrepresentation claim in Depot certainly bore a
“connection with” an ERISA plan in the most literal sense of
those words. Indeed, the lawsuit centered on two ERISA
entities disputing premiums charged for an ERISA plan. But
the claim itself arose from representations made by the
defendant to the plaintiffs during negotiations before a plan
ever existed, so “no such relationship existed when the
misrepresentations were made.” Id. at 667. The claim thus
did not bear upon an ERISA relationship.
We reach a similar conclusion here. To be sure, as in
Depot, ERISA-covered actors are relevant to HAMOC’s
claim. Aetna and WSP are ERISA-regulated entities, both of
whom owe fiduciary duties to the patient who received
surgery at La Peer. La Peer called Aetna to verify coverage
under the patient’s ERISA-covered plan. So, under a literal
application of the words “connection with,” HAMOC’s
negligent misrepresentation claim is “connected with” an
ERISA plan because La Peer has a relationship with three
ERISA-covered entities: La Peer is “connected with” the
patient, by way of the medical services provided; with
Aetna, as La Peer placed a verification call to Aetna; and
with WSP, by dint of the claim it submitted to WSP for
medical services provided to the patient. But we are skeptical
that such an application of the “connection with” test—
which of course is not enunciated in the statute itself—would
align with ERISA preemption case law. Cf. Travelers, 514
U.S. at 656. Rather, as in Depot, the pertinent question is not
whether an ERISA-regulated relationship exists but whether
the claim itself bears upon that relationship. It does not.
Section 502(a) authorizes specific parties to sue and,
correspondingly, subjects certain parties to liability. Section
502(a) authorizes participants and beneficiaries (here, the
patient) to sue for lost benefits, thereby exposing plan

HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC. 19
administrators and fiduciaries (here, Aetna and WSP) to
liability. Section 502(a), however, does not supply a cause
of action to providers, indicating that the relationship
between La Peer, a provider, and Aetna, a plan
administrator, is not one that Congress intended to
“comprehensively regulate[].” Castonguay, 984 F.2d at
1521. Unlike the relationship between plans, participants,
beneficiaries, trustees, and fiduciaries, the relationship
between La Peer, a medical service provider, and Aetna, a
plan administrator, falls outside ERISA’s regulatory scope.
See id. at 1521; Bafford, 994 F.3d at 1031–32; Paulsen, 559
F.3d at 1083. And the tort alleged, negligent
misrepresentation, runs from a non-ERISA entity (La Peer)
to ERISA entities (WSP and Aetna). See Paulsen, 559 F.3d
at 1083. Further, the claim does not encroach upon an
ERISA relationship, like that between Aetna and the patient
beneficiary. HAMOC’s claim concerns only representations
that Aetna made as a plan provider to a third-party physician.
Blue Cross of Cal., 187 F.3d at 1054.
Accordingly, the negligent misrepresentation claim does
not “bear on an ERISA-regulated relationship.” Depot, 915
F.3d at 667 (citation modified). For that reason, as we
discuss further in the course of the “reference to” analysis,
see infra pp. 20–22, the negligent misrepresentation claim
will not “result in a multiplicity of regulation, Congress’s
chief concern in enacting the ERISA pre-emption statute.”
Paulsen, 559 F.3d at 1083. Because HAMOC’s negligent
misrepresentation claim does not focus on an ERISA-
regulated relationship, the claim is not preempted under the
“connection with” test.

20 HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC.
B
“A state-law claim has a ‘reference to’ an ERISA plan if
it ‘is premised on the existence of an ERISA plan’ or if ‘the
existence of the plan is essential to the claim’s survival.’”
Depot, 915 F.3d at 665 (citation modified) (quoting Or.
Teamster Emps. Tr. v. Hillsboro Garbage Disposal, Inc.,
800 F.3d 1151, 1155–56 (9th Cir. 2015)). Congress intended
ERISA’s preemption clause to “ensure that plans and plan
sponsors would be subject to a uniform body of benefits
law . . . to minimize the administrative and financial burden
of complying with conflicting” state and federal laws.
Ingersoll-Rand, 498 U.S. at 142. In line with that purpose,
“reference to” preemption typically arises in two contexts.
First, ERISA preempts state laws that directly regulate
or condition a regulation on the existence of an employee
benefit plan or a benefit under such a plan. State laws that
impose obligations “by reference to [ERISA] covered
programs must yield to ERISA.” District of Columbia v.
Greater Wash. Bd. of Trade, 506 U.S. 125, 130–31 (1992);
cf. WSB Elec., Inc. v. Curry, 88 F.3d 788, 792–94 (9th Cir.
1996). This category includes laws that “expressly refer[]
to,” “solely appl[y] to,” or “single[] out . . . for different
treatment” employee benefit plans covered by ERISA; an
example is a state statute that prohibits collection agencies
from garnishing funds held in ERISA-governed pension
plans but does not provide similar protections to non-ERISA
plans. Mackey v. Lanier Collection Agency & Serv., Inc., 486
U.S. 825, 829–30 (1988). Also in this category are statutes
that “regulate[] a type of benefit of an ERISA plan” or
require employers “to create a separate benefit plan”—for
example, a statute that requires employers to modify
employee benefit plans to provide employees with coverage
for specific medical procedures. Aloha Airlines, Inc. v. Ahue,

HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC. 21
12 F.3d 1498, 1504–05 (9th Cir. 1993). Such statutes
encroach upon ERISA’s “uniform regulatory regime over
employee benefit plans.” Davila, 542 U.S. at 208. By
contrast, ERISA does not preempt state statutes that
“function[] irrespective of” or are “indifferent to . . . ERISA
coverage.” Cal. Div. of Lab. Standards Enf’t, 519 U.S. at 328
(citation omitted).
Second, ERISA preempts state common law claims
where the alleged injury flows entirely from the denial of a
benefit, the breach of a duty, or some other failure to comply
with a requirement imposed by ERISA. Accordingly, we
have held that the “reference to” prong preempts state law
claims that operate as “alternative enforcement
mechanisms” to § 502(a)’s comprehensive civil
enforcement scheme, Dishman, 269 F.3d at 981 (citation
omitted); that “challenge the administration of ERISA plan
benefits,” Greany, 973 F.2d at 818; or that are “premised on
the existence of an ERISA plan” such that the plan “is
essential to the claim’s survival,” Depot, 915 F.3d at 665
(citation omitted).
What all of this means is, unfortunately, fairly opaque.
But for our purposes, this analysis asks us, in essence, to
determine whether the claim at issue is the sort that a
participant, beneficiary, or their assignee could have asserted
as a § 502(a) benefits claim or is otherwise dependent on an
ERISA-covered plan.
10
If not, then the state law claim can

10
The Fifth Circuit has characterized this inquiry as whether the state
law claims “address areas of exclusive federal concern, such as the right
to receive benefits under the terms of an ERISA plan” and “directly
affect the relationship among the traditional ERISA entities—the
employer, the plan and its fiduciaries, and the participants and
beneficiaries.” Mem’l Hosp. Sys. v. Northbrook Life Ins. Co., 904 F.2d
236, 245 (5th Cir. 1990).

22 HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC.
stand alone without “reference to” an ERISA plan and is not
preempted, because it seeks to remedy an injury to a third-
party, not to a beneficiary or the covered plan. See The
Meadows, 47 F.3d at 1010 (“ERISA does not preempt a
third-party provider’s independent state law claims against a
plan precisely because those claims do not ‘relate to’ the
administration of an ERISA plan.”); see also Mem’l Hosp.
Sys. v. Northbrook Life Ins. Co., 904 F.2d 236, 244–48 (5th
Cir. 1990) (declining to extend ERISA preemption “to
encompass third-party providers” asserting state law
misrepresentation claims).
We now address whether HAMOC’s negligent
misrepresentation claim has a “reference to” an ERISA plan.
We do so by looking closely at cases that have applied the
“reference to” test under facts analogous to those presented
here.
Many common themes run through these cases.
Important among them is the observation that in almost
every case, a literal or strict application of the words
“reference to” would have supported preemption. Also, in
most instances, the “reference to” test acted as a constraint
upon, rather than an expansion of, ERISA’s preemption
clause.
The Meadows v. Employers Health Insurance applied
the “reference to” prong of ERISA preemption to a negligent
misrepresentation claim. 47 F.3d at 1010. This case involves
the same state law tort. Also like this case, The Meadows
involved a healthcare provider’s (The Meadows)
misrepresentation claim against an insurer (Employers
Health) arising from statements the insurer made on a
verification call. Id. at 1007.

HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC. 23
In early 1990, The Meadows placed calls to Employers
Health to determine whether two of its patients were eligible
for coverage. Employers Health confirmed the patients’
coverage on those calls and sent letters to The Meadows,
similarly confirming coverage. Id. at 1007–08. As it turned
out, the patients had lost coverage the year before. When The
Meadows sought payment for the medical services it
provided, the insurer refused payment, pointing out that,
“[d]espite [Employers Health’s] oral and written
representations of coverage,” the patients were not insured
at the relevant time. Id. at 1008. The Meadows brought three
state law causes of action including, as relevant here, a
negligent misrepresentation claim. Id.
Addressing “reference to” preemption, The Meadows
reasoned that “neither The Meadows nor the [patients] had
any existing ties to the ERISA plan in 1990” when The
Meadows called Employers Health, id. at 1009, as the
patients were not then covered by the ERISA plan. That the
patients were not ERISA beneficiaries when the
misrepresentations were made and so could not have
asserted or assigned their rights under § 502(a) was “further
reason to conclude that The Meadows’ claim does not ‘relate
to’ the provisions of the ERISA plan.” Id. at 1010. And
critically, the negligent misrepresentation claim “arose
because there was no plan coverage for the [patients], which
was the very fact misrepresented by Employers Health, to
the detriment of The Meadows.” Id. In other words, the
claim arose not from the denial of benefits but from the fact
of the misrepresentation itself. But for that
misrepresentation, The Meadows would not have provided
treatment and so would not have incurred an uncompensated
financial obligation. Given that context, the claim could
“function irrespective of the existence of an ERISA plan.”

24 HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC.
Id. (citation modified). The Meadows held that ERISA does
not “preempt[] claims by a third-party who sues an ERISA
plan not as an assignee of a purported ERISA beneficiary,
but as an independent entity claiming damages.” Id. at 1008.
As we mentioned above with regard to the “connection
with” rule in our discussion of Depot, see supra pp. 17–18,
a literal application of the phrase “reference to”—again, not
a statutory phrase—in The Meadows might have required
preemption. Indeed, the patients in The Meadows were
covered up to 1989 by an ERISA plan, and when The
Meadows asked Employers Health about plan coverage,
Employers Health “had to check the [patients’] policy.” 47
F.3d at 1010. Looking to the plan to confirm coverage was
literally a “reference to” the plan documents themselves.
Employers Health argued that such “conduct by its agents
implicated the administration of the ERISA plan,” thus
requiring “reference to” preemption. Id.
We held otherwise, seeing “no merit in this argument.”
Id. That an ERISA entity needed to, and did purport to,
“verify coverage” under an ERISA plan was insufficient, we
held, to justify preemption. Id. Had we concluded to the
contrary, our holding in The Meadows would have been at
odds with the understanding that “reference to” preemption
is ordinarily a constraint upon ERISA’s preemption clause,
not an expansion to the limits of the “relate to” term in the
statute. See Travelers, 514 U.S. at 655.
Our holding in Cedars-Sinai Medical Center v. National
League of Postmasters reflects a similar understanding of the
“reference to” test. 497 F.3d 972 (9th Cir. 2007). Cedars-
Sinai, a medical services provider, entered into a contract
with PBP Health, a plan administrator. PBP Health verified
coverage for one of Cedars-Sinai’s patients on four separate

HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC. 25
occasions. Id. at 974. Each time, PBP Health “authorized
Cedars-Sinai to perform medical services.” Id. After Cedars-
Sinai submitted claims, PBP Health paid less than 25 percent
of the total claim amount. See id. Cedars-Sinai sued,
asserting several state law causes of action, including a
negligent misrepresentation claim.
Unlike HAMOC’s claims, Cedars-Sinai’s claims
involved a federal health benefit plan governed by the
Federal Employee Health Benefits Act (“FEHBA”), so we
addressed preemption under FEHBA’s preemption
provision, 5 U.S.C. § 8902(m)(1). Cedars-Sinai, 497 F.3d at
975. But to conduct that analysis, Cedars-Sinai addressed
ERISA’s preemption clause and cases interpreting it at
length, as “FEHBA’s preemption provision closely
resembles ERISA’s express pre-emption provision, and
precedent interpreting the ERISA provision thus provides
authority for cases involving the FEHBA provision.” Id. at
977 n.2 (citation modified).
Two points stand out in Cedars-Sinai’s preemption
analysis as pertinent here. First, a literal application of the
words “relate to” under FEHBA’s preemption clause might
have supported preemption in Cedars-Sinai. The patient was
covered by a FEHBA plan, which PBP Health referenced
when it authorized Cedars-Sinai to perform medical services
under the plan terms. See id. at 974. In that sense, the state
law claims “related to” a regulated benefits plan. But
FEHBA did not preempt those claims, we held, because the
claims “arose” not from the FEHBA plan, but “from PBP
Health’s contractual obligation to Cedars-Sinai—an
obligation that arose when PBP Health represented that [the
patient] was covered by the Plan.” Id. at 977. Cedars-Sinai,
we stressed, brought the claims as a “third-party hospital,”
not as a “covered individual or other relevant party under

26 HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC.
FEHBA or its implementing regulations,” and Cedars-Sinai
“[did] not have [any] remedy under the statute.” Id. (citation
modified).
Second, and relatedly, Cedars-Sinai, citing ERISA
preemption caselaw, emphasized that ERISA does not
preempt “nonderivative [state law] claims” asserted by a
“third-party” where such claims could not have been
assigned by an ERISA beneficiary in the first instance. Id. at
980. Because Cedars-Sinai’s claim arose from the obligation
triggered by PBP’s representation, id. at 977, the claim was
nonderivative—that is, it was not a claim the patient could
have assigned to Cedars-Sinai. Such claims do not “relate
to” an ERISA plan, Cedars-Sinai held, because the claim
“could stand alone absent any issue regarding the application
of a welfare benefit plan.” Id. at 978 (quoting Mem’l Hosp.
Sys., 904 F.2d at 239). In that regard, Cedars-Sinai, like the
plaintiff in The Meadows, was suing as an “independent
entity claiming damages,” not as a “third party . . . assignee
of a purported ERISA beneficiary.” Id. (quoting The
Meadows, 47 F.3d at 1008).
The facts here also are similar to those in Access
Mediquip L.L.C. v. UnitedHealthcare Ins. Co., 662 F.3d 376,
383–84 (5th Cir. 2011), vacated, 678 F.3d 940 (5th Cir.),
reinstated on reh’g, 698 F.3d 229 (5th Cir. 2012) (en banc).
We therefore consider that case’s analysis although it is not
binding upon us.
Access Mediquip was a medical device provider. Id. at
378. Before procuring medical devices for three patients,
Access verified coverage with the insurer, United. Id. at
378–79. United represented that it would pay for the devices,
representations upon which Access relied when it procured
and provided a series of medical devices. Id. at 379. But

HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC. 27
when Access filed claims, United refused to pay. Id. at 379–
80. United denied Access’s claims pursuant to a preexisting
policy that “required denying all claims for surgically
implanted devices billed by providers who are not surgical
facilities.” Id. at 381.
Access brought a state law claim for negligent
misrepresentation,
11
id. at 380, alleging that United’s
statements, although “superficially about coverage under [an
ERISA] plan, were in their practical context assurances that
Access could expect to be paid reasonable charges” it
incurred on behalf of United’s insureds, id. at 381. Access
Mediquip held that ERISA did not preempt the claim, id. at
387, because the “merits of Access’s misrepresentation
claims [did] not depend on whether its services were or were
not fully covered under the patients’ plans,” id. at 385
(emphasis added). Rather, Access’s claims depended on
United’s representations or omissions and whether it was
reasonable for Access to rely on those statements. Id.
As in The Meadows and Cedars-Sinai, the claims in
Access Mediquip literally referred to an ERISA benefits
plan. Access called United to verify its patients’ coverage
under the terms of an ERISA plan. United authorized
treatment under the plans, provided billing codes, and upon
denying Access’s claims, sent Access an “Explanation of
Benefits” document explaining the denial by invoking the
terms of the ERISA plan. See id. 379–80. Declining to apply
the “reference to” test with “uncritical literalism,” the Fifth
Circuit held that ERISA did not preempt Access’s negligent
misrepresentation claim. Id. at 382 (quoting Travelers, 514
U.S. at 656). Although an ERISA plan was centrally

11
Access also brought claims for promissory estoppel and quantum
meruit, among others. Access Mediquip, 662 F.3d at 377.

28 HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC.
involved in the dispute, the court held, the “grievance
underlying [Access’s] state law misrepresentation claims
[was] the inconsistency between United’s representations
and its conduct after Access submitted claims for
reimbursement for its services,” not the denial of benefits
itself. Id. at 381.
HAMOC’s negligent misrepresentation claim bears
close resemblance to the negligent misrepresentation claims
in The Meadows, Cedars-Sinai, and Access Mediquip. I n all
of those cases, as here, a regulated employee benefit plan and
regulated parties were of some relevance to the state law
claim at hand: All three cases involved a third-party
provider—here La Peer—verifying with an ERISA plan
administrator—here Aetna—the existence or extent of
coverage under the plan—here the one provided by WSP. In
all three cases, the plan administrator made representations
about coverage to the provider upon which the provider
relied in providing services. Those representations turned
out to be false, to the detriment of the provider.
In all three cases, the claims made “reference to” an
ERISA (or FEHBA) plan in the literal sense of that
nonstatutory phrase. In The Meadows, Employers Health
needed to “verify coverage” under the patient’s former
policy. 47 F.3d at 1010. In Cedars-Sinai, PBP Health
“authorized Cedars-Sinai to perform medical services”
under the patient’s benefit plan. 497 F.3d at 974. And in
Access Mediquip, United promised to pay for medical
devices pursuant to the policies of its ERISA-plan-covered
insureds. 662 F.3d at 379–81. Here, La Peer called Aetna to
verify the rate at which the plan would reimburse a surgical
procedure for a patient insured under an ERISA plan; the
representation regarding the coverage rate was necessarily a
representation about the provisions of that plan. The three

HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC. 29
cases surveyed held that ERISA did not preempt the
negligent misrepresentation claim triggered by reliance on
misrepresentations made in verification calls. We so hold as
well.
As in The Meadows, Cedars-Sinai, and Access
Mediquip, a close focus on the elements of the negligent
misrepresentation claim asserted here undergirds our
conclusion. Under California law, a plaintiff bringing a
cause of action for negligent misrepresentation must show
that the defendant misrepresented a material fact “without
reasonable ground for believing it to be true” and with intent
to induce the plaintiff’s reliance. Home Budget Loans, Inc.
v. Jacoby & Meyers L. Offs., 207 Cal. App. 3d 1277, 1285
(1989); see Small v. Fritz Cos., 30 Cal. 4th 167, 173–74
(2003). The plaintiff must also show such reliance was
justifiable and resulted in damage. Home Budget Loans, 207
Cal. App. 3d at 1285. HAMOC sufficiently alleges those
elements by stating (1) that Aetna’s representation to La
Peer that it would reimburse at the UCR rate was a
misrepresentation because, despite its statement to the
contrary, Aetna knew at the time of the verification call that
the plan would reimburse La Peer at the much lower
Medicare rate, and (2) that La Peer would not have
performed the surgery and incurred a financial loss had
Aetna correctly stated its intended rate of reimbursement.
HAMOC’s negligent misrepresentation claim, as recited
above, does not hinge on the denial of benefits to the patient
from an ERISA plan. In fact, the patient here received the
covered treatment. Rather, the negligent misrepresentation
claim arises from “the very fact misrepresented by” Aetna,
The Meadows, 47 F.3d at 1010, that it would reimburse La
Peer at the UCR rate—without any reasonable ground to
believe the veracity of that promise. Or, as alleged in the

30 HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC.
complaint, “Aetna knew that [it] would be paying [La Peer]
at a Medicare rate” despite its statements to the contrary.
HAMOC thus asserts that WSP and Aetna’s “obligation” to
La Peer “arose when [Aetna] represented that [the patient]
was covered by the Plan,” not from its actual obligation
under the plan. Cedars-Sinai, 497 F.3d at 977 (emphasis
added). Put another way, HAMOC’s “grievance” is the
“inconsistency” between Aetna’s statements and its later
conduct. Access Mediquip, 662 F.3d at 381. Because the
injury alleged is not rooted in a plan term, HAMOC’s claim
against Aetna and WSP is not one that the patient could have
assigned to a third-party under § 502(a). The claim is
therefore inherently “nonderivative,” Cedars-Sinai, 497
F.3d at 980, as La Peer (and HAMOC in La Peer’s stead)
“does not have a remedy under the statute,” id. at 977. Given
these features, HAMOC’s negligent misrepresentation claim
is not one Congress could have intended to route through
ERISA’s civil enforcement scheme. HAMOC is simply an
“independent entity claiming damages.” The Meadows, 47
F.3d at 1008.
Recognizing again that the indistinct nature of the
“reference to” test renders it difficult to apply with abundant
confidence, we highlight three contextual points that further
support our conclusion:
First, under California negligent misrepresentation law,
HAMOC must show that Aetna lacked a “reasonable ground
for believing” the truth of its statements. Home Budget
Loans, 207 Cal. App. 3d at 1285. It is possible that the parties
may “reference” the plan to contest that element. For
example, if there is a provision in the plan that clearly
specifies that the plan will pay the Medicare rate in relevant
circumstances, that provision may be evidence of the merits
of HAMOC’s case. But “[w]here the meaning of a term in

HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC. 31
the Plan is not subject to dispute, the bare fact that the Plan
may be consulted in the course of litigating a state-law claim
does not require that the claim be extinguished by ERISA’s
enforcement provision.” Blue Cross of Cal., 187 F.3d at
1051; accord Access Mediquip, 662 F.3d at 386 (noting that
“consultation of the plan[,] . . . without more, does not
require preemption”). Nor do the plan terms bear upon
whether it was reasonable for La Peer to rely on Aetna’s
statements; neither Aetna nor WSP provided La Peer with a
copy of the patient’s plan before surgery.
Second, as in Access Mediquip, to prevail on its
negligent misrepresentation claims, HAMOC “need not
show that [Aetna] breached the duties and standard of
conduct for an ERISA plan administrator,” as the claim does
not depend on the terms of the patient’s plan. 662 F.3d at
385. It is consequently largely “immaterial whether the
alleged statements regarding . . . cover[age] . . . were correct
or incorrect as descriptions of the plans’ terms.” Id. What
matters instead is what Aetna believed to be true at that time
and whether detrimental reliance resulted from the
discrepancy between the representation and the truth.
For this reason, The Meadows is closely analogous to this
case, even though the patients there, unlike here, lacked any
ERISA-governed-plan coverage. In both instances, the claim
for damages arises from “the very fact misrepresented” by
the insurer, not from the terms—or lack thereof—of any
underlying ERISA plan. The Meadows, 47 F.3d at 1010.
WSP’s plan might specify a reimbursement amount for the
patient’s surgery, or it might state that the patient’s plan does
not cover the surgery at all. In either scenario, ERISA would
not preempt HAMOC’s negligent misrepresentation claim
because the claim turns on what Aetna said, what La Peer
reasonably believed, and what actions La Peer took, not the

32 HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC.
plan’s actual coverage terms. “As assurances of how much
[La Peer] would be paid, [Aetna’s] statements are belied by
[its] subsequent refusal to reimburse” La Peer’s services at
the rate it had represented. Access Mediquip, 662 F.3d at
385. A misrepresentation regarding the existence of
coverage causes the same financial injury to a provider as a
misrepresentation about the extent of coverage. See, e.g., id.
at 384 & n.7 (collecting cases rejecting “an existence-versus-
extent approach”); Lordmann Enters., Inc. v. Equicor, Inc.,
32 F.3d 1529, 1534 (11th Cir. 1994) (applying Memorial
Hospital, a no-coverage case, in an extent of coverage case);
In Home Health, Inc. v. Prudential Ins. Co. of Am., 101 F.3d
600 (8th Cir. 1996) (same).
Third, it is unlikely that consultation, application, or
construction of WSP’s plan will be necessary to determine
damages, “given that the compensatory recovery [HAMOC]
seeks can be measured by the cost of the services it alleges
[Aetna] induced it to provide.” Id. at 386. California limits
damages in negligent misrepresentation cases to costs
“which will compensate for all the detriment proximately
caused” by the alleged tort. Branch v. Homefed Bank, 6 Cal.
App. 4th 793, 800 (1992) (citation omitted). HAMOC seeks
compensatory and restitution damages representing the
value of the services La Peer rendered. Those figures are
untethered to any plan term. And even if reference to the plan
terms proved necessary to calculate HAMOC’s damages,
that exercise would not require preemption. “[A] claim does
not ‘relate to’ an ERISA employee benefit plan simply
because a court would refer to the plan in calculating
damages.” Funkhouser v. Wells Fargo Bank, N.A., 289 F.3d
1137, 1143 (9th Cir. 2002).
We conclude that HAMOC’s negligent
misrepresentation claim is not preempted under ERISA’s

HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC. 33
“reference to” test. Our conclusion is in line with those of
several other circuits, in addition to the Fifth Circuit in
Access Mediquip, that have considered whether ERISA
preempts a state law negligent misrepresentation claim. See,
e.g., Mem’l Hosp. Sys., 904 F.2d 236; In Home Health., 101
F.3d 600; Lordmann Enters, 32 F.3d 1529.
C
As noted earlier, the “connection with” and “reference
to” rubrics have left ERISA’s “relate to” clause in a state of
imprecision. Ultimately, “the question whether a certain
state action is pre-empted by federal law is one of
congressional intent. The purpose of Congress is the ultimate
touchstone.” Ingersoll-Rand, 498 U.S. at 137–38 (citation
modified) (quoting Allis-Chalmers Corp. v. Lueck, 471 U.S.
202, 208 (1985)). To close the loop, we now explain why the
result we reach applying the “connection with” and
“reference to” analyses accords with the underlying
premises of ERISA preemption.
We begin with the 30,000-foot view: How might this
case be different if the patient here did not receive insurance
through an employer?
If the patient purchased the relevant medical insurance
plan directly from Aetna, paying out of pocket, then the
health insurance plan would not constitute an employee
benefit plan subject to ERISA oversight, and ERISA’s
preemption clause would be irrelevant. Under otherwise
identical facts, there is no doubt that HAMOC’s state law
claim could proceed. That is, La Peer could seek a remedy
under California state law for the damage incurred due to
Aetna’s alleged misrepresentations.

34 HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC.
So the question is: Did Congress intend to limit an out-
of-network provider like La Peer’s ability to recover under a
negligent misrepresentation claim to situations where the
patient’s insurance was employer-sponsored, rather than
privately acquired? Nothing in ERISA or its history suggests
that result.
First, when it enacted ERISA, Congress recognized “that
the continued well-being and security of millions of
employees and their dependents are directly affected by
[employee benefit] plans.” 29 U.S.C. § 1001(a). ERISA thus
“protect[s] . . . the interests of participants in [such] plans
and their beneficiaries, . . . by establishing standards of
conduct, responsibility, and obligation for fiduciaries of
employee benefit plans.” Id. § 1001(b). Invoking ERISA
preemption to deny a remedy for a negligent
misrepresentation by the plan administrator does not serve
those ends. Recall that providers are not ERISA-governed
entities and so have no rights under ERISA. Where a
provider performs services it might otherwise decline to
provide in reliance on a plan’s misrepresentation, ERISA
provides no remedy. Nor would a beneficiary’s assignment
of their ERISA rights to the provider offer meaningful relief
for the damage the provider incurred due to the plan’s
misrepresentation. Because ERISA entitles a beneficiary to
sue for plan benefits—not for whatever a plan may represent
to a provider—beneficiaries cannot assign to providers the
right to sue for negligent misrepresentation; the claim, as we
have explained, is nonderivative. So the result of denying a
remedy here is to permit ERISA plans or plan administrators
with impunity to negligently misrepresent the extent of
coverage to healthcare providers, inducing the providers to
perform services they otherwise might decline to provide.
Sanctioning such behavior by plans or plan administrators

HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC. 35
directly undermines Congress’s stated objective of
“establishing standards of conduct, responsibility, and
obligation” for plan fiduciaries. Id. “[I]nsulating plan
fiduciaries from the consequences of their own
misrepresentations to third-party providers does not further
any of ERISA’s objectives.” The Meadows, 47 F.3d at 1010.
Second, “one of the major purposes of ERISA [is] to
make health care less expensive and more widely available.”
Id. at 1011. A patient’s ability to assign their ERISA rights
to an out-of-network provider directly furthers this interest.
“Such assignments . . . protect beneficiaries by making it
unnecessary for health care providers to evaluate the
solvency of patients before commencing medical treatment,
and by eliminating the necessity for beneficiaries to pay
potentially large medical bills and await compensation from
the plan.” Misic, 789 F.2d at 1377. But, as noted previously,
plans regularly include provisions that prevent beneficiaries
from making such assignments. See, e.g., Plastic Surgery
Ctr., P.A. v. Aetna Life Ins. Co., 967 F.3d 218, 228–29 (3d
Cir. 2020). In such a scenario, preemption of a negligent
misrepresentation claim would leave providers with no
recourse—under either state law or ERISA—when they rely
on a plan’s coverage representations that later prove false.
Where a patient’s plan includes an anti-assignment
provision, providers would simply be stuck with the bill,
regardless of what the plan administrator told them.
That risk has real consequences for the expense and
availability of health care to employees covered by ERISA
plans. “[T]hird-party providers would be less likely to accept
the risk of nonpayment, and as a result, might require
patients to make up-front payments or subject those patients
to other unnecessary inconveniences before treatment is
offered.” Cedars-Sinai, 497 F.3d at 979 n.3. In other words,

36 HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC.
preemption here could result in less convenient and more
expensive medical services for ERISA-plan-covered
patients—but not purchasers of individual insurances—who
visit out-of-network providers. Such an outcome “would
afford less protection to employees and their beneficiaries
than they enjoyed before ERISA was enacted,” Firestone
Tire & Rubber Co. v. Bruch, 489 U.S. 101, 114 (1989),
frustrating ERISA’s fundamental purpose—protecting the
benefit plan interests of employees and their beneficiaries.
* * *
For all these reasons, HAMOC’s negligent
misrepresentation claim does not “relate to” an employee
benefit plan, and ERISA does not displace HAMOC’s
negligent misrepresentation claim.
IV
Aetna and WSP’s principal response to everything we
have said thus far is that this court held otherwise in Bristol,
103 F.4th 597. Not so. Most critically, Bristol did not involve
a negligent misrepresentation claim. Nor could it have, due
to the circumstances of the case. And the Bristol opinion
expressly left open whether a state law negligent
misrepresentation claim asserted on behalf of a medical
provider who placed a verification call to an insurer would
be preempted by ERISA.
The circumstances in Bristol in some respects resemble
those here, but only up to a point. Plaintiff Bristol SL
Holdings, Inc. (Bristol) was the successor in interest to Sure
Haven, Inc., a drug rehabilitation and mental health facility.
Id. at 600. Sure Haven provided out-of-network services to
individuals covered by Cigna-administered, ERISA-
governed health insurance plans. Id. Before accepting a

HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC. 37
Cigna-covered patient, Sure Haven “would place a
‘verification call’ to Cigna to determine whether the patient
qualified for out-of-network benefits and to find out the
applicable reimbursement rate.” Id. On those calls, Cigna
regularly told Sure Haven that it would reimburse covered
services at a set percentage of the UCR rate. Id. After
confirming coverage, treatment authorization, and the
reimbursement rate with Cigna, Sure Haven would proceed
with treatment. Id.
Here is where the resemblance between Bristol and this
case dissipates: After some years, Cigna began to refuse
future reimbursements to Sure Haven for services of the
same kind it had previously authorized. The reason: Having
paid the represented rate for some years, Cigna eventually
“became suspicious that Sure Haven” was engaging in “fee-
forgiving,” that is, “improperly failing to collect the financial
contributions (co-pays, deductibles, etc.) that plan
participants were required to pay under [their] plans.” Id.
Fee-forgiving inflates insurance costs by “eliminating the
financial incentive for patients to seek cheaper in-network
care.” Id. The Cigna-administered healthcare plans therefore
all contained “contractual language [that] permit[ted] Cigna
to deny claims on account of fee-forgiving.” Id. Sure Haven
continued to place verification calls with Cigna, and Cigna
would confirm both coverage and a rate of reimbursement
on those calls. But, exercising the fee-forgiving provisions,
Cigna also notified Sure Haven that, going forward, it would
have to document its fee collection efforts each time it filed
a claim. Cigna denied all claims lacking such
documentation, including for patients whose treatment
Cigna had earlier authorized and paid for. Id.
Bristol sued Cigna as Sure Haven’s successor in interest.
Like HAMOC, Bristol asserted an ERISA benefits claim and

38 HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC.
several state law claims. Id. at 601. But Bristol did not assert
a misrepresentation claim. It could not have done so, as
Cigna did not have reason to suspect fee-forgiveness when
it first made representations about coverage and the
reimbursement rate and, when it did have that knowledge,
instituted procedures for the future to determine whether fee-
forgiveness had occurred. Bristol’s state law alleged causes
of action were instead state law contract and promissory
estoppel claims, premised on the theory that Cigna’s
representations during the earlier preauthorization calls
created oral contracts committing Cigna to reimburse Sure
Haven at a specific rate for future services to those patients.
Bristol held that ERISA preempted the state law breach
of contract and promissory estoppel claims. The underlying
Cigna-administered ERISA plans governed the terms of
Sure Haven’s reimbursement. Sure Haven called to Cigna to
inquire “whether reimbursement was available under the
ERISA plans” and sought preclearance for “plan-covered
services.” Id. at 603. Neither party disputed that the ERISA
plan “permit[ed] Cigna to deny claims on account of fee-
forgiving,” id. at 600, and Cigna denied coverage on that
basis. Bristol’s oral contract theory thus sought to supplant
the terms of an ERISA plan—a contract that expressly
permitted Cigna’s denial of coverage—with a new
agreement obligating Cigna to pay, Sure Haven’s fee-
forgiveness notwithstanding. Bristol held that ERISA
preempted both the contract claim and the promissory
estoppel claim. Id. at 604.
A
We agree with WSP and Aetna that ERISA preempts
HAMOC’s California state law claim of promissory estoppel
under our holding in Bristol. As we have highlighted, the

HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC. 39
facts here are in some respects analogous to those presented
in Bristol. And here, as in Bristol, both parties assert a
promissory estoppel claim under California law; the causes
of action are therefore analogous in all legally meaningful
respects. For that reason, we hold that Bristol controls the
promissory estoppel preemption question in this case and
affirm the district court’s dismissal of HAMOC’s
promissory estoppel claim.
B
We conclude otherwise with respect to the impact of
Bristol on HAMOC’s negligent misrepresentation claim.
First and most important, Bristol expressly did not reach
negligent misrepresentation causes of action arising from
out-of-network providers’ verification calls to ERISA plan
administrators:
Some circuits have permitted providers’ state
law claims for misrepresentation of health
coverage to proceed when the patients were
covered by an ERISA plan, but—contrary to
the insurer’s representations—lacked
coverage for the specific treatment rendered.
See, e.g., Plastic Surgery Ctr., P.A. v. Aetna
Life Ins. Co., 967 F.3d 218, 224 (3d Cir.
2020); Access Mediquip L.L.C. v.
UnitedHealthcare Ins. Co., 662 F.3d 376,
383–84 (5th Cir. 2011); Lordmann Enters.,
Inc. v. Equicor, Inc., 32 F.3d 1529, 1533–34
(11th Cir. 1994). This line of authority is . . .
distinguishable from this case. Here, there is
no evidence . . . that Cigna misrepresented
patient coverage, or the extent of coverage,

40 HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC.
during the calls. . . . Reimbursement was
instead denied because Cigna later
determined that Sure Haven had engaged in
fee-forgiving, in violation of plan terms.
Id. at 607.
12
As Bristol explicitly disavowed deciding the
issue in this case, it does not govern HAMOC’s negligent
misrepresentation claim.
Further, in distinguishing negligent misrepresentation
claims from the oral contract cause of action there at issue,
Bristol cited Access Mediquip, the Fifth Circuit case we
found persuasive in our ERISA preemption analysis. See
supra pp. 26–28. Comparing the facts of Bristol and Access
Mediquip to the facts here demonstrates why the reasoning
of Access Mediquip, Cedars-Sinai, and The Meadows
governs this case, and the holding of Bristol does not.
Bristol’s oral contract theory directly contradicted the
fee-forgiving term in Cigna’s plan. The state law oral
contract claim in Bristol was thus an attempt to supplant the
terms of an ERISA plan with a new, legally enforceable
agreement. Id. This displacement in favor of an individual,
contradictory agreement would fundamentally undermine
the uniformity of administration that is a preeminent concern
of ERISA and of ERISA preemption. Depot, 915 F.3d at
666. And Sure Haven’s “defense on the merits” of Cigna’s
claim denial was “that it did not engage in fee-forgiving.”
Bristol, 103 F.4th. at 600. So, as Bristol noted, Cigna’s

12
Bristol did not mention Cedars-Sinai. Nor did it invoke The Meadows
among the negligent misrepresentation cases mentioned at this juncture,
concluding instead that “The Meadows . . . has no bearing on” Bristol’s
breach of contract and promissory estoppel claims. Bristol, 103 F.4th at
606.

HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC. 41
plan—as the controlling contract—was “central to the state
law claims.” Id. at 604. As the state law contract claim could
not co-exist with the ERISA plan, it was preempted.
By contrast, the misrepresentation claim for this case
arises from an injury distinct from compliance or
noncompliance with the ERISA plan or any contractual
substitute for the ERISA plan: Aetna’s alleged
misrepresentation and La Peer’s detrimental reliance
thereon. See supra pp. 29, 31. Unlike in Bristol, HAMOC
does not seek to supplant with a new contract a plan
provision under which Aetna denied coverage. Instead,
HAMOC’s negligent misrepresentation cause of action is
one by an independent entity claiming damages untethered
to the denial of benefits to the beneficiary.
Next, Bristol’s timeline, distinct from how events
unfolded here, also demonstrates why the state law contract
cause of action there was displaced in accord with ERISA
preemption principles. In Bristol, Cigna denied coverage
only after Sure Haven filed claims unaccompanied, as had
been requested, by evidence of its efforts to collect payments
from its patients. That is, the contours of Sure Haven’s fee-
forgiving did not become apparent until after it had
submitted those claims. See Bristol, 103 F.4th at 600–01.
Only then could Cigna assess whether Sure Haven had filed
sufficient documentation. That timing explains why a
negligent misrepresentation claim was unavailable in
Bristol.
Negligent misrepresentation requires showing that a
defendant had no reasonable basis for believing the truth of
its misleading statement at the time the statement was made.
See Home Budget Loans, 207 Cal. App. 3d at 1285. In
Access Mediquip, for example, the plaintiff met that

42 HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC.
requirement by alleging that United had “distributed a notice
to its staff explaining that claims [like Access’s] were to be
denied” nearly two months “before Access contacted United
regarding” coverage. 662 F.3d at 379–80. The
representations were therefore misleading because United
agents “omitted to mention that . . . Access’s services would
not be reimbursed” under the terms of United’s plan. Id. at
385. HAMOC alleges, similarly, that Aetna knew at the time
of the preauthorization call that it would not reimburse La
Peer at the UCR rate.
13
In Bristol, by contrast, Cigna had no
knowledge of Sure Haven’s fee-forgiveness until after the
initial preauthorization call had taken place. So, the
independent injury at issue here did not occur in Bristol.
Instead, Bristol sought directly to displace the provisions of
the governing ERISA plan—which, as we have explained, it
could not do.
Finally, all the considerations just recounted confirm that
Bristol’s legal analysis does not control this case—as the
opinion, again, expressly recognized. Bristol’s breach of
contract claim bore an impermissible “reference to” an
ERISA plan because the alleged terms of the oral contract
directly conflicted with—and attempted to supplant—the
ERISA plan’s fee-forgiving provision. And citing Depot,
Bristol determined that the oral contract claim “governs a
central matter of plan administration or interferes with
nationally uniform plan administration,” Bristol 103 F.4th at
604 (quoting Depot, 915 F.3d at 666), thereby meeting the

13
We note that it is far from obvious that HAMOC’s claim can succeed
on the merits. HAMOC was not the medical services provider in this
case. It will have to prove exactly what was asked, what was represented,
what La Peer knew about how Aetna would apply either the UCR or
Medicare rate, and whether Aetna and WSP intended to induce reliance.
Cf. Home Budget Loans, Inc., 207 Cal. App. 3d at 1285.

HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC. 43
relationship test central to the “connection with” standard
cited in Depot. Put another way, Bristol’s oral contract
theory—although in name premised on a contract between
an ERISA entity (Cigna) and a non-ERISA entity (Sure
Haven)—sought in reality to supplant a plan that governed
the relationship between two ERISA entities—the patient
and Cigna—and forbade fee-forgiveness to the patient. The
oral contract in that respect regulated an ERISA relationship.
By contrast, the negligent misrepresentation claim at
issue here does not encroach upon WSP’s or Aetna’s
relationship with their insureds. The claim concerns only
representations made by the plan administrator about the
content of a plan and would not change the benefits due to
the beneficiary. There is little risk that encouraging plan
administrators to accurately represent plan terms to third
parties will encroach upon the relationship between the plans
and their insureds.
We conclude that Bristol does not preclude the negligent
misrepresentation claim at stake in this case.
* * *
HAMOC’s negligent misrepresentation claim does not
“relate to” the Aetna-administered plans. The district court’s
dismissal of these claims is REVERSED. We AFFIRM the
district court’s dismissal of HAMOC’s promissory estoppel
claim pursuant to our holding in Bristol. The case is
REMANDED for further proceedings consistent with this
opinion.
AFFIRMED in part, REVERSED in part, and
REMANDED.