On Sept. 24, the U.S. District Court for the District of New Jersey filed a decision in Glastein v. Aetna, Civ. No. 18-9262, filed September 24, 2018 (U.S.D.J). addressing a motion to dismiss. It is an unpublished decision, but it worth discussing for its instructive—if not precedential—value. In response to the motion filed by the defendant insurer, Aetna, the court disagreed that the claims brought by the plaintiff physician, Dr. Cary Glastein, were pre-empted by federal benefits law.

Glastein is an orthopaedic surgeon who specializes in spine surgery. On Oct. 27, 2016, he provided what the court agreed was medically necessary surgery to a patient. Glastein was an out-of-network provider, but he had contacted Aetna prior to performing the surgery. Aetna sent to Glastein a written authorization to perform the surgery. Once the surgery was complete, Glastein forwarded a bill to Aetna for $209,000. The court noted in its decision that this amount was “normal and reasonable … given the complexity of the procedure … .” Despite obtaining written authorization from the insurer before performing the surgery and subsequently charging an amount that the court recognized was normal and reasonable, Aetna paid nothing.

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