Roberts

Plaintiff Edward J. Roberts (plaintiff) enrolled in a private health plan offering benefits to persons 65 and over as well as disabled persons under the federally funded Medicare Advantage program (42 U.S.C. § 1395w-21 et seq.), and went to an urgent care center outside of the plan’s network for medical services; as a result, he was forced to pay a $50 copayment instead of the $30 copayment for in-network centers. Alleging that the plan’s marketing materials misled him (and other enrollees) as to the availability of in-network urgent care centers (and their smaller copayments) and that the absence of any in-network urgent care centers in California rendered the plan’s network inadequate, plaintiff filed this class action for unfair competition, unjust enrichment and financial elder abuse.

This appeal presents two questions: (1) Are plaintiff’s misrepresentation and adequacy of network based claims expressly preempted by the preemption clause applicable to Medicare Advantage plans (42 U.S.C. § 1395w-26(b)(3)), or implicitly preempted by the requirement that the plan’s marketing materials and adequacy of plan coverage be preapproved by the Center for Medicare and Medicare…