Case: 14-20506      Document: 00513148303         Page: 1    Date Filed: 08/10/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT     United States Court of Appeals
                                                                                    Fifth Circuit

                                                                                   FILED
                                      No. 14-20506                             August 10, 2015
                                                                                Lyle W. Cayce
                                                                                     Clerk
KELSEY-SEYBOLD MEDICAL GROUP PA, doing business as Kelsey-
Seybold Clinic,

               Plaintiff–Appellant,

v.

GREAT-WEST HEALTHCARE OF TEXAS, INCORPORATED,

               Defendant–Appellee.




                  Appeals from the United States District Court
                       For the Southern District of Texas
                             USDC No. 4:07-CV-640


Before KING, SMITH, and ELROD, Circuit Judges.
PER CURIAM:*
       Kelsey-Seybold Medical Group PA (Kelsey) sued Great-West Healthcare
of Texas, Inc., (Great-West) in Texas state court, alleging that Great-West had
not paid the contractually required rate for medical services that Kelsey had
provided to members of Great-West-affiliated healthcare plans. Great-West
removed the case to federal court on the ground that Kelsey’s claims were



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                       No. 14-20506
completely preempted by the Employee Retirement Income Security Act
(ERISA). 1 Kelsey moved to remand on the basis that its claims were not
completely preempted and, therefore, the district court lacked subject matter
jurisdiction. The district court declared the claims preempted and entered a
take-nothing judgment in favor of Great-West.
       To determine whether a claim is completely preempted by ERISA, we
apply the two-part test set forth in Aetna Health Inc. v. Davila: a claim is
completely preempted if (1) the claimant “could have brought his claim under
ERISA § 502(a)(1)(B),” and (2) “there is no other independent legal duty that
is implicated by a defendant’s actions.” 

, 210 (2004). In Lone Star
OB/GYN Associates v. Aetna Health Inc., 

(5th Cir. 2009), we held
that “[a] claim that implicates the rate of payment as set out in the Provider
Agreement, rather than the right to payment under the terms of the benefit
plan, does not run afoul of Davila and is not preempted by ERISA.” 

This is because a dispute concerning only the contractual rate of payment is a
breach-of-contract claim, not an ERISA claim. Thus, where a “partial payment
. . . resulted from a denial of benefits under the plan, the claim may be
preempted,” 

but “where claims do not involve coverage
determinations, but have already been deemed ‘payable,’ and the only
remaining issue is whether they were paid at the proper contractual rate,
ERISA preemption does not apply,” 

       Great-West bears the burden of showing that removal was proper and
establishing federal jurisdiction. Great-West has not satisfied its burden, as
it has not identified any claims that “implicate coverage determinations under


       1 “Complete preemption converts a state law civil complaint alleging a cause of action
that falls within ERISA’s enforcement provisions into ‘one stating a federal claim for
purposes of the well-pleaded complaint rule.’” Lone Star OB/GYN Assocs. v. Aetna Health
Inc., 

, 529 (5th Cir. 2009) (quoting Aetna Health Inc. v. Davila, 

, 209
(2004)).
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                                 No. 14-20506
the terms of the relevant plan.” 

Great-West contends that “about
98% of Kelsey’s claims are claims for ERISA plan benefits,” but that fact is
irrelevant; the question is not whether plaintiff’s claims relate to benefits
under ERISA plans, but rather whether adjudication of those claims requires
an interpretation of an ERISA plan. Great-West has not shown that any of
Kelsey’s claims concern “the right to payment under the terms of the benefit
plan,” as opposed to “the rate of payment as set out” in the parties’ contractual
agreement. Lone 

. Thus, Great-West has not satisfied its
burden to establish federal jurisdiction.
      We REVERSE the judgment of the district court and REMAND, with
instructions for the district court to remand the case to state court. Given that
this case is more than eight years old, we expect the district court to remand
the case promptly.




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