Lassiter et al v. Pacificare Life and Health Insurance Company et al

BRIEF/MEMORANDUM in Support of Motion to Remand

M.D. Ala.July 17, 2007

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF ALABAMA ROY LASSITER, JENNIFER ) PURIFOY, ) ) Plaintiffs, ) ) CASE NO.: 2:07-CV-00583 v. ) ) PACIFICARE LIFE & HEALTH ) INSURANCE COMPANY, UNITED ) HEALTHCARE SERVICES, INC., ) as successor in interest to Pacificare Life ) & Health Company; ROBERT D. BELL ) and Fictitious Defendants “A” through “R” ) ) Defendants. ) PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION TO REMAND COME NOW the Plaintiffs, by and through their undersigned counsel of record, and provide the following Memorandum of Law in Support of Motion to Remand filed contemporaneously herewith. INTRODUCTION Plaintiffs filed this case against Pacificare Life and Health Insurance Company, United Healthcare Services, Inc., and Robert D. Bell in the Circuit Court of Bullock County, Alabama on May 23, 2007 (hereinafter collectively referred to as “Defendants” or “Pacificare”). Plaintiffs’ Complaint brings state law claims asserting that Defendants fraudulently misrepresented material information, as well as engaged in other wrongful conduct that led to enrollment in the healthcare plan at issue, Pacificare’s Secure Horizons program, which caused the Plaintiffs’ damages. This case is before this Court as a result of the Defendants’ removal pursuant to 28 U.S.C. § 1441(b). At its core, Defendants rely on the erroneous argument that Plaintiffs’ state law claims Case 2:07-cv-00583-MEF-WC Document 10 Filed 07/17/2007 Page 1 of 17 2 are completely preempted by federal law, that is, the Medicare Act, as amended in 2003 by the Medicare Modernization Act (“MMA”). The Defendants’ argument is wrong, and this case should be remanded, as this court lacks federal question jurisdiction over the Plaintiffs’ state law claims. I. Background on Medicare Advantage Plans From a preliminary standpoint, it may be helpful to understand Medicare and its modifications over the years that led to the Plaintiffs’ enrollment in the healthcare plan at issue. The Plaintiffs are Medicare beneficiaries who were fraudulently enrolled in a Medicare Advantage plan – the “Secure Horizons” plan offered by Pacificare (now known as United Healthcare). The term, “Medicare Advantage” plan, refers to a private healthcare plan offered to Medicare beneficiaries only. Medicare Advantage plans are federal statutory creations, which will be explained in detail below. Enacted in 1965, Medicare is a federally run health insurance program benefitting primarily those who are 65 years of age and older. Before the recent extension of Medicare to cover a portion of prescription drug costs, Medicare covered only inpatient care through Part A and outpatient care through Part B. Parts A and B are fee-for-service insurance programs operated by the federal government. 42 U.S.C. § 1395c et seq. (Part A); 42 U.S.C. § 1395j et seq. (Part B). In 1997 Congress enacted Medicare Part C to allow Medicare beneficiaries to opt out of traditional fee-for-service coverage under Parts A and B. 42 U.S.C. § 1395w-21 et seq. (Part C). Under Part C, beneficiaries can, among other things, enroll in “Medicare Advantage” plans, which are privately-run managed care plans that provide coverage for both inpatient and outpatient Case 2:07-cv-00583-MEF-WC Document 10 Filed 07/17/2007 Page 2 of 17 1Medicare Advantage Plans were once called “M+C” or “Medicare + Choice” plans upon their creation in 1997. 3 services. Id. § 1395w-22(a)(1).1 Basically, under Medicare Advantage plans, eligible individuals (members) can elect to receive Medicare benefits through a Medicare Advantage plan of health insurance offered by a private health maintenance organization (HMO). In addition to receiving funding from Medicare for each enrollee, an HMO charges its enrollees a combination of monthly premiums or co-pays for various benefit plans. A Medicare beneficiary typically enrolls in a Medicare Advantage plan because the HMO administering the particular plan claims to provide greater benefits than those provided under traditional Medicare. Critically, when a beneficiary enrolls in a Medicare Advantage plan, his or her healthcare is tendered from Medicare to the HMO. Medicare no longer provides or pays for healthcare. The enrollee must then use that HMO’s network of doctors and healthcare providers to receive healthcare coverage. If the enrollee fails to seek medical treatment from the plan’s network of doctors and providers, they may incur the costs of that treatment. Prior to 2003 Medicare coverage did not include prescription drugs. In 2003 Congress enacted the Medicare Modernization Act (“MMA”) to extend partial coverage for prescription drugs to Medicare beneficiaries under Medicare Part D. See Pub.L. No. 173, Tit. I (2003) (Part D). Under the MMA, participation in Medicare Part D is voluntary for non-dual-eligible beneficiaries (i.e., persons who were not indigent and were not receiving state Medicaid benefits and services). 42 U.S.C. § 1395-101(a). Medicare Advantage plans may offer Part D coverage to their enrollees. Id. § 1395-101(a)(1)(b)(I). Thus, Medicare Advantage plan enrollees may receive all of their Medicare coverage through a single managed care plan. If a Medicare beneficiary is not enrolled Case 2:07-cv-00583-MEF-WC Document 10 Filed 07/17/2007 Page 3 of 17 4 in a Medicare Advantage plan, he or she may still enroll in a stand-alone Part D prescription drug plan. Part D prescription drug coverage took effect in January of 2006. The Center for Medicare and Medicaid Services (CMS), formerly known as HCFA, is an administrative subdivision of the United States Department of Health and Human Services that directly administers and oversees the entire Medicare program, including Medicare Advantage plans and Part D plans. In order to operate a Medicare Advantage plan, an HMO must have a contract with the CMS. The CMS sets forth guidelines that an HMO and its agents must follow when marketing a Medicare Advantage plan. Likewise, the CMS sets forth guidelines for Part D prescription drug providers to follow when administering their prescription drug plans. These guidelines will be discussed in more detail, infra. II. The Plaintiffs’ claims The original Complaint shows that the Plaintiffs were Medicare beneficiaries who were enrolled in Pacificare’s Secure Horizons plan, which is a “Medicare Advantage” plan as described above. Because the Secure Horizons plan also contained a Part D (prescription drug) benefit, the Plaintiffs were to receive all of their Medicare coverage through a single managed care plan. The problem, however, was that by enrolling in Pacificare’s Secure Horizons plan, the Plaintiffs could only go to doctors who were a part of the Pacificare network. (See Complaint, ¶¶10-18, attached as Exhibit A to Defendants’ Notice of Removal). In other words, the Plaintiffs gave up their right to go to doctors or healthcare providers who were not in the network, which included the Plaintiffs’ regular doctors. The crux of the Plaintiffs’ lawsuit is that the Defendants misrepresented the true nature of the Secure Horizons plan by leading the Plaintiffs to believe that they could still use original Case 2:07-cv-00583-MEF-WC Document 10 Filed 07/17/2007 Page 4 of 17 5 Medicare and go to their regular doctors and healthcare providers. (See Complaint). The Plaintiffs did not know they were enrolling in a limited network. Id. By enrolling in the Secure Horizons plan, the Plaintiffs no longer had their original Medicare coverage. Id. The practical effect was that the Plaintiffs’ original “red, white and blue” Medicare card no longer worked. Id. When the Plaintiffs went to their regular doctors and healthcare providers, who were not a part of the Pacificare network, they had no means of paying for the services. Id. They no longer had Medicare coverage, and they incurred bills as a result. Id. III. The Defendants’ arguments for removal As stated previously, the Defendants’ argument for removal rests on the sole contention that this Court has federal question jurisdiction over the Plaintiffs’ claims. The Defendants specifically assert that the Plaintiffs’ claims for relief arise under the Medicare Act, 42 U.S.C. §1395w-21 to w- 28, as amended by the Medicare Modernization Act (MMA) of 2003. (See Notice of Removal, ¶3). The Defendants argue that the Plaintiffs’ claims are totally preempted by §1395w-26(b)(3) based on three (3) specific grounds: (1) that the Plaintiffs’ claims of fraud directly implicates standards set forth for enrollment, including Pacificare’s marketing efforts and materials under §1395w-101(b)(1)(A) and 42 C.F.R. §423.50 (2005); (2) that the Plaintiffs, “in effect complain of benefit or coverage determinations governed by the Medicare Act/MMA”; and (3) the Plaintiffs’ claim of reduced benefits and denial of medical care “implicates the grievance and appeals process established under the Medicare Act/MMA.” 42 C.F.R. §§423.560, 423.566, 423.568, 423.570, 423.580-90, 423.600-04, 423.610, 423.630 (2005). (See Notice of Removal, ¶4). For the reasons set forth below, however, the Defendants’ preemption argument is not supported by law. Case 2:07-cv-00583-MEF-WC Document 10 Filed 07/17/2007 Page 5 of 17 6 ARGUMENT I. Plaintiffs’ claims have not invoked federal question, in light of the well-pleaded complaint rule. Whether a claim arises under federal law so as to confer federal question jurisdiction under 28 U.S.C. § 1331 is governed by the “well-pleaded complaint” rule, which provides that "federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). Because the “well- pleaded complaint” rule provides for the determination of jurisdiction solely on the basis of the plaintiff's complaint, the rule makes the plaintiff master of the claim, and federal jurisdiction may be avoided by exclusive reliance on state law. See Caterpillar, 482 U.S. at 392. One need look no further than the Plaintiffs’ Complaint to see that the Plaintiffs bring only state law claims in their Complaint. The Complaint specifically states: Plaintiffs make no claims pursuant to federal law and further make no claims that would give rise to any federal cause of action. Plaintiffs’ claims are based solely upon applicable state law. (See Complaint, ¶18, Exhibit A to Defendants’ Notice of Removal). Accordingly, based on the complaint alone, federal question jurisdiction is lacking. The Plaintiffs acknowledge the one exception to the well-pleaded complaint rule – the “complete pre-emption” doctrine, which provides that “once an area of state law has been completely pre-empted, any claim purportedly based on that pre-empted state law is considered, from its inception, a federal claim, and therefore arises under federal law.” Caterpillar, 482 U.S. at 393. The Defendants argue that the Plaintiffs’ claims are completely preempted by §1395w- 26(b)(3) of the MMA, which states: Case 2:07-cv-00583-MEF-WC Document 10 Filed 07/17/2007 Page 6 of 17 7 The standards established under this part shall supersede any State law or regulation (other than State licensing laws or State laws relating to plan solvency) with respect to MA plans which are offered by MA organizations under this part. As will be explained below, the argument is unsupported by federal law. II. Plaintiffs’ claims are not completely preempted by §1395w-26(b)(3) of the MMA. The Supreme Court has found “complete pre-emption” of state-law claims in only a very few instances, for example, § 301 of the Labor Management Relations Act of 1947, 29 U.S.C.A. § 185, commonly referred to as the LMRA, Avco Corp. v. Aero Lodge No. 735, 390 U.S. 557, 88 S.Ct. 1235 (1968); and § 502 of the Employee Retirement Income Security Act of 1974, 29 U.S.C.A. § 1132, commonly referred to as ERISA, Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 107 S.Ct. 1542 (1987). The courts have identified three factors as critical to a finding of complete pre- emption. First, because “the touchstone of the federal district court's removal jurisdiction is ... the intent of Congress,” Taylor, 481 U.S. at 66, 107 S.Ct. at 1548, the courts have concluded that there should be evidence of a congressional intent to make the state claim falling within the scope of the relevant federal statute removable to federal court. Secondly, the federal law must also “displace” the state law claim with a cause of action. In Taylor, complete preemption was found because the “state common law claims are not only pre- empted by ERISA but also displaced by ERISA's civil enforcement provision.” 481 U.S. at 60, 107 S.Ct. at 1544. See also Allstate Ins. Co. v. 65 Sec. Plan, 879 F.2d at 93 (“The doctrine of complete preemption applies only ... when the enforcement provisions of a federal statute create a federal cause of action vindicating the same interest that the plaintiff's cause of action seeks to vindicate”); Willy v. Coastal Corp., 855 F.2d 1160, 1165 (5th Cir. 1988) (“a federal action cannot be found to Case 2:07-cv-00583-MEF-WC Document 10 Filed 07/17/2007 Page 7 of 17 8 so completely displace state claims ... unless there would have been a federal cause of action under the preempting federal law”), aff'd on other grounds, 503 U.S. 131, 112 S.Ct. 1076 (1992). Third, the jurisdictional and enforcement provisions in the LMRA or ERISA must have a close parallel in the federal claims at issue. In Taylor, the Supreme Court noted that, even with ERISA's extensive civil enforcement provisions, it “would be reluctant to find that extraordinary pre-emptive power,” 481 U.S. at 65, 107 S.Ct. at 1547, but for the fact that ERISA's civil enforcement provision paralleled those in the LMRA, a statute where the Court had previously found such power. Id. The defendant has the burden of demonstrating that a substantial question of federal law is necessary to the resolution of the Plaintiffs’ claims stated in their Complaint. See Franchise Tax Board v. Const. Laborers Vacation Trust, 463 U.S. 1 (1983); see also Kidd v. Southwest Airlines, 891 F.2d 540, 542-43 (5th Cir.1990); First Nat. Reserve, L.C. v. Vaughn, 931 F.Supp. 463, 468 (E.D.Tex.1996); Rogers v. Modern Woodmen of America ,1997 WL 206757, *4 (N.D. Miss.,1997). A. There is evidence that Congress did not intend for preemption of the Plaintiffs’ state law claims. Here, there is no evidence of a congressional intent to make the Plaintiffs’ state claims, which purport to fall within the scope of §1395w-26(b)(3) of the MMA statute, removable to federal court. In fact, there is direct evidence to the contrary. The Rules and Regulations section of a publication of the Federal Register, which gives policy statements and interpretations of federal statutory rules, specifically addressed the extent of preemption in the field of Medicare Advantage plans and §1395w-26(b)(3) of the MMA. While this specific section pertains to Part D prescription Case 2:07-cv-00583-MEF-WC Document 10 Filed 07/17/2007 Page 8 of 17 9 drug plans, the publication concludes that the same preemption laws apply to Medicare Advantage plans. It states: In areas where we have neither the expertise nor the authority to regulate, we do not believe that State laws would be superseded or preempted. For example, State environmental laws, laws governing private contracting relationships, tort law, labor law, civil rights law, and similar areas of law would, we believe, continue in effect and PDP sponsors in such states would continue to be subject to such State laws. Rather, our Federal standards would merely preempt the State laws in the areas where the Congress intended us to regulate – such as the rules governing pharmacy access, formulary requirements for prescription drug plans, and marketing standards governing the information disseminated to beneficiaries by PDP sponsors. 70 Fed.Reg., No. 18, p. 4319 (January 28, 2005) (emphasis added) (attached hereto as Exhibit A). The Register echoes the same conclusion in a latter comment: Comment: One large insurer felt that our narrow interpretation of the statutory preemption authority was contrary to the language of section 1856(b)(3) of the Act. This insurer requested that CMS consider making clear that all State laws and regulations . . . are preempted with respect to MA and Part D plans. Response: As noted in the proposed rule, we do not believe that either the principles of Federalism or the statute justify a broad preemption interpretation. Id. at 4320 (emphasis added). Based on the above statements, it is clear that preemption was not meant to cover state tort claims in connection with sales and marketing practices of Medicare Advantage plans. Indeed, the Comment went to great lengths to point out the areas that it believes Congress intended Medicare to regulate: (1) the rules governing pharmacy access, (2) formulary requirements for prescription drug plans, and (3) marketing standards governing the information disseminated to beneficiaries by PDP sponsors. 70 Fed.Reg. 4319. First, the Plaintiff is not a State and, thus, is not attempting to impose State guidelines on the three areas mentioned above, much less impose more restrictive guidelines or rules that directly conflict. Secondly, none of the Plaintiffs’ claims in the instant Case 2:07-cv-00583-MEF-WC Document 10 Filed 07/17/2007 Page 9 of 17 10 lawsuit pertain in any way to the rules governing pharmacy access, formulary requirements, or marketing guidelines for information disseminated to beneficiaries by PDP (prescription drug provider) sponsors. Although the Plaintiffs’ claims are based on improper sales conduct by the agent, i.e., fraud and negligence, the Plaintiffs’ state law claims are not attempting to impose additional or stricter marketing standards or guidelines for information disseminated by a Part D provider. Indeed, the Plaintiffs’ state law claims do not impose or trigger any State standards in the area regulated whatsoever. In addition to congressional intent, evidence of the CMS’s intent with respect to preemption is instructive. Two bulletins issued by the Alabama Commissioner of Insurance, Walter Bell, addressed the inappropriate marketing activities of Medicare Advantage producers in Alabama. In a bulletin dated February 16, 2006, Commissioner Bell stated: [S]tate law and regulatory provisions regarding producer activity apply to the marketing of Medicare Part D . . . . CMS will refer complaints it receives about producers licensed in this state to the Alabama Department of Insurance. This bulletin reminds licensed producers that they are subject to all laws and regulations of this state, including those relating to the duty of good faith and fair dealing, the suitability of sale, and the prohibitions against misrepresentation, churning, and high pressure sales tactics . . . . Any proven misconduct will be prosecuted under the laws of this state. (AL Insurance Bulletin 2-16-2006, Medicare Part D Marketing, attached hereto as Exhibit B) (emphasis added). Again, while this bulletin specifically addressed the marketing of Medicare Part D, it relates to the cross-selling of Medicare Advantage plans. Thus, sales and marketing conduct related to Medicare Advantage plans is directly implicated in this bulletin. Moreover, the Alabama Department of Insurance issued another bulletin on June 8, 2007, which specifically addressed the marketing of Medicare Advantage plans. The bulletin set forth Case 2:07-cv-00583-MEF-WC Document 10 Filed 07/17/2007 Page 10 of 17 11 conditions for the marketing of these plans. In addition, the bulletin stated, “The four conditions set forth above are in addition to any other requirements set out in Alabama Department Regulation, Chapter 482-1-071.” (AL Insurance Bulletin 6-8-2007, Medicare Advantage Insurance Producers, attached as Exhibit C). Notably, chapter 482-1-071 of the Alabama Administrative Code sets forth state standards for marketing of these products. Therefore, in light of the recent actions and comments of federal and state agencies, viz. the CMS and the Alabama Insurance Commissioner, it is clear that the intent of the preemption section of the statute was not to cover marketing activity of Medicare Advantage products, much less state causes of action arising from improper sales and marketing conduct. This matter should, therefore, be remanded to state court on this basis alone. Furthermore, even if there was evidence of congressional intent for complete preemption here, there is no evidence that the Medicare Act and the 2003 MMA displaces the Plaintiffs’ state law claims with an equal cause of action of its own. B. The Medicare Act/MMA does not displace the Plaintiffs’ claims with a cause of action. As set forth above, Supreme Court has warned that the doctrine of complete preemption applies only when the enforcement provisions of a federal statute create a federal cause of action vindicating the same interest that the plaintiff's cause of action seeks to vindicate. See Taylor, 481 U.S. at 60. In the present action, neither the Medicare Act nor its 2003 amendment create a federal cause of action that displaces the Plaintiff’s state law claims. The Defendants cite numerous provisions of the Medicare Act and the MMA and argue that the Plaintiffs’ claims are “in effect” complaints for benefits and coverage determinations that implicate the grievance and appeals process established under the Medicare Act/MMA. (See Notice of Removal, ¶4, citing 42 C.F.R. Case 2:07-cv-00583-MEF-WC Document 10 Filed 07/17/2007 Page 11 of 17 12 §§423.560, 423.566, 423.568, 423.570, 423.580-90, 423.600-04, 423.610, 423.630 (2005). None of these provisions, however, provides a private right of action or remedy for an enrollee, much less displaces a cause of action with a federal cause of action vindicating the same interests. There is not a single request in the Plaintiffs’ complaint seeking a coverage determination or an appeal of an unpaid claim, despite the Defendants’ attempts to couch the Plaintiffs’ Complaint as such. The Plaintiffs are not claiming that Pacificare wrongfully denied a claim. Nor are they claiming that Medicare wrongfully denied a claim. The Plaintiffs have no grievance with Medicare. Their only dispute is with Pacificare and its agent who fraudulently misrepresented the product. However, neither the Medicare Act nor its 2003 amendment provide a remedy that the Plaintiffs’ complaint seeks to redress. Because the Plaintiffs are not claiming that Pacificare should have paid a claim, there is no unpaid claim from which the Plaintiffs can appeal. The Federal Register, again, provides guidance on this point. Commenting on preemption and the grievance procedures offered under the Medicare Act/MMA, it has been noted: In addition, we did not believe we would have the authority under Part D to set specific tort remedies or to govern resolution of private contracting disputes between plans and their subcontractors. We believe that the Congress did not intend for our regulations to supersede each other and every State requirement applying to plans – particularly those for which the Secretary lacks expertise and authority to regulate. Thus, we did not believe, for example, that wrongful death or similar lawsuits based upon tort law would be superseded by the appeals process established in these regulations. . . . Under principles of Federalism, and Executive Order 13132 on Federalism, which generally require us to construe preemption narrowly, we believe that an enrollee will still have State remedies available in cases in which the legal issue before the court is independent of an issue related to an organization’s status as a stand alone PDP or MA-PD plan. Case 2:07-cv-00583-MEF-WC Document 10 Filed 07/17/2007 Page 12 of 17 13 70 Fed.Reg., No. 18, 4362 (January 28, 2005) (attached hereto as Exhibit D). It is therefore clear that Congress did not intend for any grievance procedure offered under the Medicare Act to serve as a substitute for any private right of action such as those asserted in the Plaintiffs’ Complaint. Furthermore, even if the Plaintiffs’ Complaint, which is based on fraudulent sales and marketing conduct, “implicates standards set forth for enrollment, including Pacificare’s marketing efforts and materials under §1395w-101(b)(1)(A) and 42 C.F.R. §423.50 (2005)”, as claimed by the Defendants, these marketing standards do not offer a private right of action that displaces the state law claims in the Complaint. These standards simply set forth rules and guidelines that an HMO like Pacificare and its agents must follow when marketing the Medicare Advantage product. The rules prohibit, for example, a marketer from misrepresenting the product or making unsolicited visits to prospective enrolles. Such marketing rules and guidelines only provide the CMS with the opportunity to fine an agent or entity that is found to be in violation. The rules do not grant a private right of action to an enrollee who is the victim of such a violation. Thus, if an agent misrepresents the product and violates every rule or guideline set forth by the CMS, the offender only stands to be fined by the CMS. The guidelines certainly do not grant an enrollee a private cause of action to sue. Nor do the grievance procedures touted by the Defendants provide any such remedy either. In sum, neither the Medicare Act nor its 2003 amendment (MMA) provide a private right of action or remedy for an enrollee, much less displace a cause of action with a federal cause of action vindicating the same interests. Accordingly, this case should be remanded to state court, as the critical second prong of the preemption analysis cannot be met. Case 2:07-cv-00583-MEF-WC Document 10 Filed 07/17/2007 Page 13 of 17 2For a similar legal analysis based upon the Medicare Act’s preemption provision prior to the 2003 amendment, see Burke v. Humana Ins. Co, 1995 WL 841678 (M.D. Ala.), which the Court rejected the defendant’s attempt to remove a similar case on the basis that the plaintiffs’ claim were preempted by the Medicare Act. See also Grace v. Interstate Life & Accident, Ins. Co., 916 F.Supp. 1185 (M.D. Ala. 1996), which the Court concluded that the Medicare Act did not provide complete preemption and, thus, remanded the case. 14 C. There is no jurisdiction or enforcement provision in the Medicare Act/MMA that parallels the LMRA or ERISA. In addition to evidence of congressional intent and displacement, the third requirement for preemption is that the jurisdictional and enforcement provisions in the LMRA or ERISA must have a close parallel in the federal claims at issue. In Taylor, the Supreme Court noted that, even with ERISA's extensive civil enforcement provisions, it “would be reluctant to find that extraordinary pre-emptive power,” 481 U.S. at 65, 107 S.Ct. at 1547, but for the fact that ERISA's civil enforcement provision paralleled those in the LMRA, a statute where the Court had previously found such power. Id. There is not a single jurisdictional and civil enforcement provision in the Medicare Act/MMA that even arguably parallels those of the LMRA or ERISA. Simply put, the Medicare Act/MMA is not ERISA or the LMRA and has not such power. Accordingly, the Defendants’ claim for complete preemption fails.2 III. Pacificare has failed to show that a substantial question of federal law is necessary to the resolution of the claims asserted by the Plaintiffs. Even if Plaintiffs’ claims involve construction of federal law, Defendants’ argument that Plaintiffs’ claims are pre-empted because they “relate to standards established under the Medicare Act/MMA” is not sufficient to confer removal jurisdiction. The fact that a state law claim relates Case 2:07-cv-00583-MEF-WC Document 10 Filed 07/17/2007 Page 14 of 17 15 to a federal issue, or involves an interpretation of a federal law, does not necessarily establish a federal question and provide removal jurisdiction. See Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804 (1986). Accordingly, Defendants have failed to meet their burden; thus, removal of this action was improper, and remand is appropriate. CONCLUSION Defendants have failed to meet their burden of demonstrating that a substantial question of federal law is necessary to resolve Plaintiffs’ claims. Moreover, Pacificare’s argument that Plaintiffs’ claims are “completely pre-empted” by federal law is without merit. Accordingly, this case is due to be remanded to its proper forum in the Circuit Court of Bullock County, Alabama. Respectfully submitted, /s/ J. Matthew Stephens Robert G. Methvin, Jr. (MET009) J. Matthew Stephens (STE153) Rodney E. Miller (MIL126) OF COUNSEL: MCCALLUM, METHVIN & TERRELL, P.C. 2201 Arlington Avenue South Birmingham, AL 35205 Telephone: (205) 939- 0199 Facsimile: (205) 939-0399 /s/ L. Cooper Rutland L. Cooper Rutland, Jr. (RUT010) Case 2:07-cv-00583-MEF-WC Document 10 Filed 07/17/2007 Page 15 of 17 16 OF COUNSEL: RUTLAND & BRASWELL, L.L.C. 208 N. Prairie Street P.O. Box 551 Union Springs, AL 36089 CERTIFICATE OF SERVICE I hereby certify that on 17TH day of July, 2007, I electronically filed the foregoing document with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following CM/ECF participants: Philip H. Butler George B. Harris William C. McGowin BRADLEY, ARANT, ROSE & WHITE, LLP 401 Adams Avenue, Suite 780 Montgomery, AL 36104 Telephone: (334) 956-7700 Paula Denney John K. Edwards JACKSON, WALKER, LLP 1401 McKinney, Suite 1900 Houston, TX 77010 /s/ J. Matthew Stephens COUNSEL Case 2:07-cv-00583-MEF-WC Document 10 Filed 07/17/2007 Page 16 of 17 17 CERTIFICATE OF SERVICE I hereby certify that on 17TH day of July, 2007, I placed a copy of the foregoing document in the U.S. mail to the following party: Robert D. Bell Route 1, Box 995 Shellman, GA 39886 /s/ J. Matthew Stephens COUNSEL Case 2:07-cv-00583-MEF-WC Document 10 Filed 07/17/2007 Page 17 of 17 Case 2:07-cv-00583-MEF-WC Document 10-2 Filed 07/17/2007 Page 1 of 3 Case 2:07-cv-00583-MEF-WC Document 10-2 Filed 07/17/2007 Page 2 of 3 Case 2:07-cv-00583-MEF-WC Document 10-2 Filed 07/17/2007 Page 3 of 3 Case 2:07-cv-00583-MEF-WC Document 10-3 Filed 07/17/2007 Page 1 of 2 Case 2:07-cv-00583-MEF-WC Document 10-3 Filed 07/17/2007 Page 2 of 2 Case 2:07-cv-00583-MEF-WC Document 10-4 Filed 07/17/2007 Page 1 of 2 Case 2:07-cv-00583-MEF-WC Document 10-4 Filed 07/17/2007 Page 2 of 2 Case 2:07-cv-00583-MEF-WC Document 10-5 Filed 07/17/2007 Page 1 of 2 Case 2:07-cv-00583-MEF-WC Document 10-5 Filed 07/17/2007 Page 2 of 2