Naomi Aylward v. Selecthealth, Inc.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

NAOMI J. AYLWARD, individually No. 20-55653
and as personal representative for the
Estate of Philip Aylward, D.C. No.
Plaintiff-Appellant, 3:18-cv-00494-
WQH- MDD
v.

SELECTHEALTH, INC., a Utah ORDER AND
corporation, DBA SelectHealth, AMENDED
Defendant-Appellee, OPINION

and

DOES, 1–25 inclusive; JEFF
AYLWARD, an individual; TODD
AYLWARD, an individual,
Defendants.

Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding

Argued and Submitted May 10, 2021
San Francisco, California

Filed April 13, 2022
Amended May 27, 2022
2 AYLWARD V. SELECTHEALTH

Before: J. Clifford Wallace and Daniel P. Collins, Circuit
Judges, and Jed S. Rakoff, * District Judge.

Order;
Opinion by Judge Wallace

SUMMARY **

Medicare

The panel affirmed the district court’s summary
judgment in favor of SelectHealth, Inc., a health insurance
benefits company, in a case involving disputed benefits
under a Medicare Advantage (“MA”) plan governed by Part
C of Title XVIII of the Social Security Act (“SSA”),
popularly known as the Medicare Act.

Naomi Aylward filed a lawsuit in state court, alleging
state law claims arising from SelectHealth’s administration
of her deceased husband’s MA plan and his death. Under
Part C of the Medicare Act, beneficiaries can enroll in an
MA plan and receive Medicare benefits through private MA
organizations instead of the government. SelectHealth
removed the action to federal court on the basis of diversity
jurisdiction.

The Honorable Jed S. Rakoff, United States District Judge for the
*

Southern District of New York, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 AYLWARD V. SELECTHEALTH 3

The panel first considered whether plaintiff’s claims
must be exhausted through the Medicare Act’s
administrative review scheme. Section 205(h) of Title II of
the SSA makes the judicial review provided in § 205(g) the
exclusive means for reviewing administrative
determinations under Title II. The panel held that Section
1872 of Title XVIII of the SSA provides that § 205(h) is
applicable to cases under the Medicare Act to the same
extent as in cases under Title II. The panel concluded that
enrollees in an MA plan must likewise first exhaust their
administrative remedies before seeking judicial review of a
claim for benefits.

The panel next considered whether plaintiff exhausted
her administrative remedies. The panel concluded that
plaintiff’s claims were not subject to the SSA’s exhaustion
requirement because the dispute was not whether plaintiff’s
husband received a favorable outcome from the internal
benefits determination process but rather whether he should
have received the services earlier. This is not an issue that
has an administrative remedy under § 1852(g)(5). Claims
outside the administrative process are not ones that can give
rise to the sort of administrative decision that triggers
applicability of § 205(h) and, in turn, § 205(g).

The panel next considered whether the Medicare Act
preempted plaintiff’s state law claims. First, the panel held
that plaintiff’s claim that SelectHealth breached a duty to
process timely her husband’s October 7, 2016, appeal was
expressly preempted. Because the standards established
under Part C expressly prescribe the relevant duties of MA
plans with respect to when expedited treatment is required
and what timeframes apply, those standards supersede any
state law duty that would impose obligations of MA plans on
the same subject. Accordingly, to the extent plaintiff’s state
4 AYLWARD V. SELECTHEALTH

law claims depend on the timeliness of SelectHealth’s
processing of Mr. Aylward’s appeal, the panel held that the
Medicare Act preempted those claims, whether or not they
would be inconsistent with federal regulations. Second, the
panel held that the Medicare Act also preempted plaintiff’s
claims based on SelectHealth’s alleged breach of duty to
investigate properly Mr. Aylward’s August 23, 2016,
preauthorization request for consultation and testing at
St. Joseph’s Hospital and Medical Center in Phoenix,
Arizona. The panel held this second asserted duty was
essentially identical to the first alleged duty: a duty to
process the claim for benefits, and receive a favorable
decision, more quickly. For the same reasons discussed for
the October 7, 2016, appeal, the panel concluded that a state
law claim based on a duty to process claims for benefits in a
timely manner was preempted by the Part C regulations that
set forth the timeframes for initial determinations and
reconsideration decisions.

Because the Medicare Act’s express preemption
provision, 42 U.S.C. §1395w-26(b)(3), barred plaintiff’s
state law claims, the panel affirmed the district court’s
summary judgment in favor of SelectHealth.

COUNSEL

Eric S. Rossman (argued) and Erica S. Phillips, Rossman
Law Group PLLC, Boise, Idaho; Lenden F. Webb, Webb
Law Group APC, Fresno, California; for Plaintiff-Appellant.

Alan C. Bradshaw (argued) and Christopher M. Glauser,
Manning Curtis Bradshaw & Bednar PLLC, Salt Lake City,
Utah, for Defendant-Appellee.
 AYLWARD V. SELECTHEALTH 5

ORDER

The opinion in Aylward v. SelectHealth, Inc., 31 F.4th
719 (9th Cir. 2022), is amended as follows:

On page 728, replace with .

The amended version is filed concurrently with this
order.

The panel has unanimously voted to deny the petition for
panel rehearing. Judge Collins voted to deny the petition for
rehearing en banc, and Judges Wallace and Rakoff so
recommend. The full court has been advised of the petition
for rehearing and rehearing en banc, and no judge has
requested a vote on whether to rehear the matter en banc.
Fed. R. App. P. 35.

The petition for panel rehearing and the petition for
rehearing en banc are DENIED. No further petitions for
panel rehearing or rehearing en banc will be considered. See
Gen. Order 5.3(a).
6 AYLWARD V. SELECTHEALTH

OPINION

WALLACE, Circuit Judge:

Naomi Aylward (Mrs. Aylward) filed a lawsuit in state
court against SelectHealth, Inc. (SelectHealth), a health
insurance benefits company, and asserted state law claims
arising from SelectHealth’s administration of her deceased
husband Philip Aylward’s (Mr. Aylward) Medicare
Advantage plan and his death. Mrs. Aylward appeals from
the district court’s summary judgment in favor of
SelectHealth. We have jurisdiction pursuant to 8 U.S.C.
§ 1291. We review de novo the district court’s summary
judgment. JL Beverage Co., LLC v. Jim Beam Brands Co.,
828 F.3d 1098, 1104 (9th Cir. 2016). We review de novo
whether a federal statute preempts state law claims. Do Sung
Uhm v. Humana, Inc., 620 F.3d 1134, 1140 (9th Cir. 2010).
Because the Medicare Act preempts Mrs. Aylward’s state
law claims, we affirm.

I

A

This case involves benefits under a Medicare Advantage
(MA) plan governed by Part C of Title XVIII of the Social
Security Act (SSA), popularly known as the Medicare Act.
The Medicare Act establishes a federally subsidized health
insurance program for elderly and disabled persons
administered by the Department of Health and Human
Services (the Department). 42 U.S.C. § 1395c. The
Secretary of the Department of Health and Human Services
(the Secretary) delegates the administration of the Medicare
Act to the Centers for Medicare and Medicaid Services
(CMS), an agency housed within the Department. In 1997,
Congress enacted Part C of the Act, creating the Medicare
 AYLWARD V. SELECTHEALTH 7

Advantage program. 42 U.S.C. §§ 1395w-21–29. Under
Part C, beneficiaries can enroll in an MA plan and receive
Medicare benefits through private MA organizations instead
of the government. Id.

B

In August 2014, a doctor diagnosed Mr. Aylward “with
pulmonary fibrosis, likely” idiopathic pulmonary fibrosis
(IPF). 1 In the fall of 2015, Mr. Aylward enrolled in a
SelectHealth Advantage insurance plan (the Plan) with an
effective date of January 1, 2016. SelectHealth Advantage
plans, including the Plan, are MA plans administered by
SelectHealth. The Plan covered “medically necessary” care,
and the member handbook states that “‘[m]edically
necessary’ means that the services, supplies, or drugs are
needed for the prevention, diagnosis, or treatment of your
medical condition and meet accepted standards of medical
practice.” With respect to organ transplants, the member
handbook states that Mr. Aylward’s physician was required
to obtain prior authorization from SelectHealth.

The member handbook outlines the process by which
SelectHealth would issue “organization determinations” or
coverage decisions regarding requests for Mr. Aylward’s
medical care. The handbook states that for standard
coverage decisions, SelectHealth would provide an
organization determination within 14 days. For fast
coverage decisions, SelectHealth would provide a
determination within 72 hours; however, the handbook
describes an exception for the fast coverage deadline and

1
SelectHealth contends that a physician observed indications of IPF
in Mr. Aylward as early as 2005. The date of Mr. Aylward’s IPF
diagnosis does not affect our analysis.
8 AYLWARD V. SELECTHEALTH

states “if . . . some information that may benefit you is
missing . . . , or if you need time to get information to
[SelectHealth] for the review,” a fast determination can be
extended “up to 14 more calendar days.” The handbook
explains that Mr. Aylward would only receive a fast
coverage decision if he were asking for coverage for medical
care that he had not yet received and if SelectHealth’s use of
the standard deadline “could cause serious harm to your
health or hurt your ability to function.” Regarding the
second requirement, the handbook states that if an enrollee’s
physician informs SelectHealth that the enrollee’s health
requires a fast coverage decision, SelectHealth “will
automatically agree to give you a fast coverage decision.”

The handbook also outlines the process and timelines for
filing appeals from SelectHealth organization
determinations. For a standard appeal, SelectHealth must
provide an answer within 30 days, and for a fast appeal or
expedited reconsideration, it must answer within 72 hours.
The handbook states that “[t]he requirements and procedures
for getting a ‘fast appeal’ are the same as those for getting a
‘fast coverage decision.’” As with fast coverage decisions,
the handbook states that SelectHealth will automatically
provide an expedited reconsideration if a physician states
that the enrollee’s health requires it.

In January 2016, Mr. Aylward’s physician in Idaho,
Dr. William Dittrich, referred him to the University of
California at San Diego Health System (UCSD) for a lung
transplant consultation relating to Mr. Aylward’s IPF
diagnosis. On January 26, 2016, Dr. Dittrich sent a request
for SelectHealth to approve coverage for the UCSD
consultation, which SelectHealth approved on February 1,
2016.
 AYLWARD V. SELECTHEALTH 9

On February 10, 2016, Mr. Aylward met with
Dr. Gordon Yung at UCSD for a lung transplant
consultation. Dr. Yung diagnosed Mr. Aylward with IPF
and recommended that he “be evaluated for lung
transplantation, but given his age, this should be done as
soon as possible.” On March 7, 2016, UCSD submitted a
preauthorization request for an “evaluation/work-up” for a
lung transplant, and on March 10, 2016, SelectHealth
approved the request.

On August 22, 2016, UCSD requested SelectHealth’s
preauthorization for a single lung transplant. While UCSD’s
request was pending, Dr. Rajat Walia at St. Joseph’s
Hospital and Medical Center (St. Joseph’s) in Phoenix,
Arizona sent SelectHealth a request on August 23, 2016, to
preauthorize a lung transplant consultation and testing. On
August 26, 2016, Mr. Aylward met with Dr. Yung at UCSD,
and they discussed the possibility of listing Mr. Aylward for
a lung transplant not only at UCSD but also at one or more
of three other facilities, including St. Joseph’s. On August
30, 2016, SelectHealth approved UCSD’s preauthorization
request for a single lung transplant.

On August 31, 2016, a SelectHealth case manager
worked on St. Joseph’s preauthorization request, sent the
case for physician review, and asked the reviewing
physician, Dr. Peter Christensen, to advise whether dual
listing was appropriate and if the requested services at St.
Joseph’s would be duplicative of those approved at UCSD.
On September 1, 2016, SelectHealth denied St. Joseph’s
preauthorization request for consultation and testing and
stated, “[a]dditional services out of network are not covered
as the patient has already been approved for out[-]of[-
]network services and has had an evaluation and workup for
lung transplant. Additional duplicat[e] services are not
10 AYLWARD V. SELECTHEALTH

shown to be medically necessary and are not covered.” That
day, the case manager notified Mr. Aylward of the decision,
and Mr. Aylward stated that he would file an appeal.

On October 7, 2016, Mr. Aylward filed an appeal from
SelectHealth’s September 1, 2016 denial, requesting
SelectHealth’s preauthorization to be dual listed at UCSD
and St. Joseph’s for a lung transplant, and requested a fast
appeal. In his appeal, Mr. Aylward cited his age, the rapid
progression of his IPF, the availability of lungs for
transplant, and the higher number of lung transplants
completed by St. Joseph’s than UCSD in 2016. That day,
Dr. Krista Schonrock, SelectHealth’s medical director,
determined that Mr. Aylward’s appeal did not warrant a fast
appeal timeline and designated it as a standard appeal. She
testified that she did so “because [Mr. Aylward] was already
on a transplant list” at UCSD. On October 14, 2016,
SelectHealth issued its appeal decision, which approved the
consultation at St. Joseph’s but made “no exception” for
testing because “repeating it would be a duplication.”

On October 17, 2016, SelectHealth notified St. Joseph’s
of its appeal decision approving only a lung transplant
consultation. SelectHealth’s call notes reflect that the
St. Joseph’s representative stated that a consultation without
additional testing would be “useless.” St. Joseph’s
confirmed that the tests requested had not been previously
done at UCSD and that St. Joseph’s had obtained all other
test results from UCSD. On October 22, 2016,
Dr. Schonrock approved “[a]ny testing that ha[d] not been
previously done.” On October 24, 2016, Dr. Yung referred
Mr. Aylward to St. Joseph’s for a lung transplant evaluation.
On October 26, 2016, SelectHealth sent Mr. Aylward a letter
notifying him that it approved testing for a lung transplant at
 AYLWARD V. SELECTHEALTH 11

St. Joseph’s. On October 28, 2016, Mr. Aylward died in San
Diego.

In January 2018, Mrs. Aylward filed a complaint in state
court against SelectHealth. In March 2018, SelectHealth
removed the action to federal court on the basis of diversity
jurisdiction. In November 2018, Mrs. Aylward filed an
amended complaint, which asserted various state law claims
arising from SelectHealth’s administration of the Plan and
Mr. Aylward’s death, including for negligence, negligent
misrepresentation, fraud, bad faith tort, failure to investigate
a claim properly, breach of duty to inform the insured of
rights, insurer’s breach of implied covenant of good faith and
fair dealing, negligent infliction of emotional distress, and
intentional infliction of emotional distress.

In June 2020, the district court granted summary
judgment in favor of SelectHealth. The district court stated
that Mrs. Aylward’s action was based on her claims that
SelectHealth breached “its obligations to [Mr.] Aylward and
[Mrs. Aylward] in the handling of [Mr.] Aylward’s claim for
benefits under the Plan by failing to conduct any
investigation into the request for preauthorization submitted
by St. Joseph’s on August 23, 2016 and failing to” timely
process Mr. Aylward’s October 7, 2016 appeal. Reasoning
that Mrs. Aylward’s “claims of failure to investigate are
‘inextricably intertwined’ to a benefits decision,” the district
court held that her “claims arise under the Medicare Act and
that 42 U.S.C. § 405(h) and (g) require exhaustion of
administrative remedies before judicial review.” The district
court also held that Mrs. Aylward’s claims are preempted by
the Medicare Act’s preemption provision, 42 U.S.C.
§ 1395w-26(b)(3), because “in order to adjudicate [her]
claims, the [c]ourt would necessarily need to determine
whether [Mr.] Aylward was entitled to the preauthorization
12 AYLWARD V. SELECTHEALTH

request for consultation and evaluation at St. Joseph’s in the
first place, a decision that is governed by detailed CMS
standards.” The district court reasoned that “[b]eyond
contending that [SelectHealth’s] benefit decision was
wrong, [Mrs. Aylward] fails to allege any other action on
[SelectHealth’s] part that would support [Mrs. Aylward’s]
claims.”

II

We consider whether Mrs. Aylward’s claims must be
exhausted through the Medicare Act’s administrative review
scheme. “The issue of exhaustion bears on the district
court’s jurisdiction, so we address [the exhaustion issue]
first.” Uhm, 620 F.3d at 1140 (citation omitted).

A

Section 1852(g) of the SSA sets forth an administrative
review scheme for resolving disputes over benefits
determinations by MA organizations. See 42 U.S.C.
§ 1395w-22(g). Before seeking judicial review in federal
district court, enrollees must press their claims for benefits
through all levels of administrative review. First, an enrollee
must proceed through the MA organization’s internal
benefits determination process, which entails an initial
determination by the MA organization as to the enrollee’s
entitlement to benefits, 42 U.S.C. § 1395w-22(g)(1), and
reconsideration by the MA organization, 42 U.S.C.
§ 1395w-22(g)(2). Next, adverse reconsideration decisions
are reviewed by an outside, independent contractor.
42 U.S.C. § 1395w-22(g)(4). If the enrollee, after pursuing
these levels of review, is “dissatisfied by reason of the
enrollee’s failure to receive any health service to which the
enrollee believes the enrollee is entitled,” and “if the amount
in controversy is $100 or more,” the enrollee may seek a
 AYLWARD V. SELECTHEALTH 13

hearing before an administrative law judge (ALJ) “to the
same extent” as is provided in social security benefits and
disability benefits cases under § 205(g) of Title II of the
SSA. See 42 U.S.C. § 1395w-22(g)(5) (citing 42 U.S.C.
§ 405(g)); 42 C.F.R. § 422.600. An enrollee who is
dissatisfied with the ALJ’s decision may then seek review
by the Medicare Appeals Council. 42 C.F.R. § 422.608.
Finally, if the enrollee receives an adverse decision from the
Medicare Appeals Council, and “[i]f the amount in
controversy is $1,000 or more,” then the enrollee is “entitled
to judicial review of the Secretary’s final decision” under the
provisions of § 205(g) of the SSA. 42 U.S.C. § 1395w-
22(g)(5); 42 C.F.R. § 422.612.

The familiar requirement that claimants must exhaust
their administrative remedies before seeking judicial review
of social security or disability benefits determinations rests
on § 205(h) of Title II of the SSA, which makes the judicial
review provided in § 205(g) the exclusive means for
reviewing administrative determinations under Title II. See
42 U.S.C. § 405(h); Weinberger v. Salfi, 422 U.S. 749, 757–
58 (1975). Section 1872 of Title XVIII of the SSA provides
that § 205(h) is applicable to cases under the Medicare Act
“to the same extent” as in cases under Title II, with the
exception that the Secretary is substituted for any references
to the Commissioner of Social Security. See 42 U.S.C.
§ 1395ii. Therefore, enrollees in an MA plan must likewise
first exhaust their administrative remedies before seeking
judicial review of a claim for benefits.

B

We now consider whether Mrs. Aylward exhausted her
administrative remedies. As discussed above, the
administrative review process set forth in § 1852(g)(5) may
be invoked by an enrollee only if, after pursuing fully the
14 AYLWARD V. SELECTHEALTH

internal benefits determination process with the MA
organization, there was a “failure to receive any health
service to which the enrollee believes the enrollee is entitled
and at no greater charge than the enrollee believes the
enrollee is required to pay.” 42 U.S.C. § 1395w-22(g)(5).
But critically here, when Mr. Aylward pursued that internal
review process, SelectHealth approved coverage for the
consultation and testing that Mr. Aylward sought.
Mr. Aylward appealed the initial denial of his request for a
consultation and testing at St. Joseph’s. In its appeal
decision on October 14, 2016, SelectHealth approved only a
consultation at St. Joseph’s, but maintained that additional
testing there would be duplicative of the tests conducted at
UCSD. However, after SelectHealth subsequently verified
that the tests had not been previously done at UCSD, on
October 22, 2016, SelectHealth revised its appeal decision
and approved the new tests at St. Joseph’s. On October 26,
2016, SelectHealth sent Mr. Aylward a letter notifying him
that his “appeal has been approved” and that SelectHealth
granted authorization “to cover [his] requested consult and
testing at St. Joseph’s Hospital.”

The upshot is that SelectHealth had not “failed” to grant
a “health service to which the enrollee believe[d] the
enrollee [wa]s entitled,” 42 U.S.C. § 1395w-22(g)(5),
because SelectHealth ultimately approved the consultation
and testing sought by Mr. Aylward. Under the plain terms
of § 1852(g)(5), Mr. Aylward—or Mrs. Aylward, as his
successor—could not have sought further administrative
review of an initial denial that was then reversed in the
internal review process. Thus, the dispute is not whether
Mr. Aylward received a favorable outcome. Rather,
Mrs. Aylward contends that Mr. Aylward should have
received the services earlier—which is not an issue that has
an administrative remedy under § 1852(g)(5).
 AYLWARD V. SELECTHEALTH 15

If no administrative remedies are available, it follows
that an enrollee cannot be subject to the exhaustion
requirement. By its terms, the jurisdictional exclusivity of
§ 205(h) rests on the premise that the enrollee has been
channeled into the administrative review process and
therefore may only invoke the statute’s prescribed methods
for reviewing the resulting administrative decision. See
42 U.S.C. § 405(g). Claims outside that administrative
process are not ones that can give rise to the sort of
administrative decision that triggers applicability of § 205(h)
and, in turn, § 205(g). Accordingly, Mrs. Aylward’s claims
are not subject to the Act’s exhaustion requirement.

III

We turn next to the issue of whether the Medicare Act
preempts Mrs. Aylward’s state law claims.

A

Part C of the Medicare Act contains an express
preemption provision:

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.

42 U.S.C. § 1395w-26(b)(3). Prior to Congress’s
amendments to the Medicare Act in 2003, the preemption
provision stated that federal standards would supersede state
law and regulations with respect to MA plans “to the extent
such law or regulation is inconsistent with such standards,”
and it identified certain standards that were specifically
16 AYLWARD V. SELECTHEALTH

superseded. 42 U.S.C. § 1395w-26(b)(3)(A) (2000)
(emphasis added).

“Congress may displace state law through express
preemption provisions.” Uhm, 620 F.3d at 1148 (citing
Altria Grp., Inc. v. Good, 555 U.S. 70, 76 (2008)). While
the language of the preemption provision “means that we
need not go beyond that language to determine whether
Congress intended [Part C] to pre-empt at least some state
law, we must nonetheless identify the domain expressly pre-
empted by that language.” Medtronic, Inc. v. Lohr, 518 U.S.
470, 484 (1996) (internal quotation marks and citations
omitted).

The plain language of the provision thus provides that,
in order to determine whether a claim is preempted, we must
identify whether there is a relevant “standard[] established
under [Part C]” with preemptive effect.

B

Mrs. Aylward’s operative First Amended Complaint
pleaded nine different causes of action based on a variety of
tort theories, including bad faith handling of an insurance
claim, fraud, negligence, and breach of fiduciary duty. The
district court recognized, and Mrs. Aylward concedes, that
her claims are ultimately premised on one or both of two
distinct duties that SelectHealth allegedly breached: (1) a
duty to process Mr. Aylward’s October 7, 2016 appeal in a
timely manner; and (2) a duty to properly investigate
Mr. Aylward’s August 23, 2016 preauthorization request.
We address in turn whether Part C’s preemption provision
preempts these bases for Mrs. Aylward’s claims.
 AYLWARD V. SELECTHEALTH 17

1

Mrs. Aylward’s claim that SelectHealth breached a duty
to process timely Mr. Aylward’s October 7, 2016 appeal is
expressly preempted. Federal regulations implemented
under Part C provide specific standards as to how MA
organizations must process requests for expedited
reconsiderations and the timelines for expedited and
standard reconsiderations. See 42 C.F.R. §§ 422.584,
422.590. Section 422.584 states that “[f]or a request made
by an enrollee, the MA organization must provide an
expedited reconsideration if it determines that applying the
standard timeframe for reconsidering a determination could
seriously jeopardize the life or health of the enrollee or the
enrollee’s ability to regain maximum function,” 42 C.F.R.
§ 422.584(c)(2)(i), and “[f]or a request made or supported
by a physician, the MA organization must provide an
expedited reconsideration if the physician indicates” as
much, 42 C.F.R. § 422.584(c)(2)(ii).

As stated, under Part C’s preemption provision, these
“standards . . . supersede any State law or regulation . . . with
respect to MA plans.” See 42 U.S.C. § 1395w-26(b)(3). In
Uhm, we reviewed the legislative history of the 2003
amendments and recognized that “Congress intended to
broaden the preemptive effects of the Medicare statutory
regime” and “expand the preemption provision beyond those
state laws and regulations inconsistent with the enumerated
standards.” 620 F.3d at 1149–50. We concluded that
generally applicable state consumer protection laws and
common law claims can fall within the ambit of Part C’s
preemption provision. Id. at 1152–53, 1155, 1156.
Nevertheless, we analyzed the plaintiffs’ claims pursuant to
the pre-2003 preemption provision and held that the state
law consumer protection and state common law fraud claims
18 AYLWARD V. SELECTHEALTH

at issue were inconsistent with the Medicare Act and CMS
regulations. Id. at 1152, 1156. Explaining our choice of
analysis in light of the 2003 amendments, we reasoned that
it was “sufficient for our purposes that, at the very least, any
state law or regulation falling within the specified categories
and ‘inconsistent’ with a standard established under the Act
remains preempted” and “[t]hat limited scope . . . [was]
sufficient to decide” that case. Id. at 1150.

Unlike in Uhm, which involved state law claims that we
concluded were “inconsistent” with the standards provided
for in Part C and its implementing regulations, see id., here,
we evaluate claims that at least partially parallel such
standards. For example, Mrs. Aylward contends that
SelectHealth violated the state law obligation to handle his
claims “reasonably” in part because it denied expedited
reconsideration under § 422.584 “with no apparent
justification” for doing so. Other aspects of Mrs. Aylward’s
claim, however, arguably seek to invoke state law in order
to supplement the duty of expedition provided for in the
federal standards. Therefore, we must decide whether Part
C’s preemption provision preempts a state law cause of
action that parallels, enforces, or supplements express
standards established under Part C and its implementing
regulation.

We conclude that it does. We have already held that
Part C’s preemption provision applies to state law causes of
action based on generally applicable laws, Uhm, 620 F.3d
at 1152–53, 1156, and that conflict between the state law and
the federal standard is unnecessary, id. at 1149. Thus, we
have held that, in determining what qualifies as a state law
“with respect to MA plans,” 42 U.S.C. § 1395w-26(b)(3),
our preemption analysis must be based on the relevant state
law duty sought to be imposed under the generally
 AYLWARD V. SELECTHEALTH 19

applicable law invoked by the plaintiff. There is no basis for
concluding that a state law duty that parallels, enforces, or
supplements an express federal MA standard on the subject
is not one “with respect to MA plans.” Cf. Pilot Life Ins. Co.
v. Dedeaux, 481 U.S. 41, 47–48 (1987) (explaining that state
common law duties concerning claims-handling “relate[d]
to” to ERISA plans for purposes of ERISA’s express
preemption provision). Here, because the standards
established under Part C expressly prescribe the relevant
duties of MA plans with respect to when expedited treatment
is required and what timeframes apply, those standards
“supersede” any state law duty that would impose
obligations on MA plans on that same subject. See 42 U.S.C.
§ 1395w-26(b)(3).

Accordingly, to the extent Mrs. Aylward’s state law
claims depend on the timeliness of SelectHealth’s
processing of Mr. Aylward’s appeal, we hold that the Act
preempts those claims, whether or not they would be
inconsistent with federal regulations.

2

Finally, the Act also preempts Mrs. Aylward’s claims
based on SelectHealth’s alleged breach of duty to investigate
properly Mr. Aylward’s August 23, 2016 preauthorization
request for consultation and testing at St. Joseph’s. While
the claim takes several forms in Mrs. Aylward’s amended
complaint, she characterizes it on appeal as a claim for the
insurer’s breach of the implied covenant of good faith and
fair dealing.

Because Mr. Aylward’s claim was successfully resolved
in his favor during the MA plan’s internal review process, it
follows that Mrs. Aylward’s argument that Mr. Aylward’s
benefits claim was handled in bad faith is necessarily an
20 AYLWARD V. SELECTHEALTH

argument that the claim should have been favorably resolved
more quickly. SelectHealth ultimately approved coverage
for the consultation and testing that Mr. Aylward sought in
his preauthorization request. Thus, the gravamen of
Mrs. Aylward’s complaint is best viewed as contending that,
due to SelectHealth’s alleged mishandling, Mr. Aylward’s
benefits claim took longer to resolve favorably than it should
have. In other words, Mrs. Aylward’s second asserted duty
is essentially identical to her first alleged duty: a duty to
process the claim for benefits, and receive a favorable
decision, more quickly.

The asserted duty to conduct an adequate investigation
encompasses SelectHealth’s handling of Mr. Aylward’s
August 23, 2016 preauthorization request. Part C’s
implementing regulations, however, provide the timeframes
for making such initial determinations. See 42 C.F.R.
§ 422.568(b)(1) (stating that, as a general matter, initial
determinations must be made “as expeditiously as the
enrollee’s health condition requires, but no later than
14 calendar days after the date the organization receives the
request”). Therefore, for the same reasons as those
discussed in reference to Mr. Aylward’s October 7, 2016
appeal, we conclude that a state law claim based on a duty to
process claims for benefits in a timely manner is preempted
by the Part C regulations that set forth the timeframes for
initial determinations and reconsideration decisions.

Accordingly, we hold that the Act preempts
Mrs. Aylward’s claims premised on SelectHealth’s alleged
breach of duty to properly investigate Mr. Aylward’s August
23, 2016 preauthorization request.
 AYLWARD V. SELECTHEALTH 21

IV

Because the Medicare Act’s express preemption
provision, 42 U.S.C. § 1395w-26(b)(3), bars Mrs. Aylward’s
state law claims, the district court’s summary judgment in
favor of SelectHealth is AFFIRMED.