United States Court of Appeals,
Fifth Circuit.
No. 94-20690.
TEXAS MEDICAL ASSOCIATION, et al., Plaintiffs-Appellants,
v.
AETNA LIFE INSURANCE COMPANY, et al., Defendants-Appellees.
April 11, 1996.
Appeal from the United States District Court for the Southern
District of Texas.
Before KING, DAVIS and SMITH, Circuit Judges.
KING, Circuit Judge:
The Texas Medical Association, the Harris County Medical
Society, and five individual doctors brought suit against Aetna
Life Insurance Co. and other affiliated companies challenging the
doctors' deselection from Aetna's preferred provider organization.
The district court granted summary judgment in favor of Aetna on
the grounds that Texas law does not provide a private cause of
action to enforce Texas administrative regulations governing
preferred provider health insurance plans. We affirm.
I. BACKGROUND
A. FACTS
On November 24, 1993, the Texas Medical Association ("TMA"),
the Harris County Medical Society ("HCMS"), and Drs. Peter
Benjamin, Robert Maidenberg, Reginald T. Chelvam, Harold J. Fields,
and Jesus R. Portela (the "doctors") (collectively, the
"appellants") sued Aetna Life Insurance Co. ("Aetna Life
Insurance"), Aetna Health Plans of Texas, Inc. d/b/a Partners
1
National Health Plan ("Aetna Health Plans"), and Aetna Health
Management ("Aetna Health Management"). The suit arose out of the
following facts:
The appellants are five physicians who practice medicine in
Houston, Texas—Benjamin, Maidenberg, Chelvam, Fields, and
Portela—and two physicians' associations—TMA and HCMS.1 Aetna Life
Insurance is a commercial insurance carrier that sells, among other
insurance products, preferred provider plans—group health insurance
policies that provide a higher level of insurance coverage to the
insured if the insured obtains health care services from a
preferred provider. Policyholders in preferred provider plans are
free to choose doctors who are not preferred providers, but they
will receive a lower level of benefits if they do so. To establish
a network of preferred providers, commercial insurers such as Aetna
contract with selected physicians, hospitals, and other providers,
creating a preferred provider organization ("PPO"). Aetna Health
Management provides services to Aetna Life Insurance's Houston area
PPO. The doctors were members of Aetna's PPO.
On September 1, 1993, Aetna notified each of the doctors in
writing that his participation in the PPO would be terminated in
ninety days, effective December 31, 1993. The preferred provider
contracts between the doctors and Aetna provided that, upon ninety
1
Aetna argues that TMA and HCMS lack standing to maintain
this suit. Although standing is ordinarily a threshold issue,
because we affirm the district court's summary judgment on the
ground that the doctors cannot maintain a private cause of action
to enforce the PPO rules, it is unnecessary for us to address the
organizational standing of TMA and HCMS.
2
days' written notice, either party could terminate the agreement at
any time without cause (the "termination without cause" provision).
In November 1993, Aetna provided additional information to the
doctors by letter regarding the criteria used in the evaluation and
the reasons for their deselection.
Aetna further advised the doctors in the November letters
that, upon their request, they would be entitled to review of the
deselection decision. Aetna provides deselected doctors with two
levels of review as a matter of corporate policy. First, a doctor
complaining about deselection can meet with the network manager and
medical director. If the problem is not resolved at this meeting,
the doctor can have his deselection reviewed by the chief executive
officer of the PPO, who relies on advice from an advisory panel of
doctors.
Of the five doctors bringing this action, only Dr. Benjamin
participated in the first level of Aetna's offered review process.
Aetna decided to uphold Dr. Benjamin's deselection. Following this
first level review, Aetna advised all five doctors that an advisory
panel review was scheduled for November 30, 1993. The doctors
refused to participate in the advisory panel review because Aetna
would only allow them to present written information to the
advisory panel, and would not allow them to appear personally or
through counsel before the panel.
The doctors, along with TMA and HCMS, filed suit on November
24, 1993, claiming that their deselection from Aetna's PPO and the
"termination without cause" provisions of their preferred provider
3
contracts violate Texas administrative regulations governing
preferred provider plans. After suit was filed, Aetna postponed
the November 30 advisory panel review at the doctors' request, to
allow the doctors sufficient time to prepare and participate in the
review process.
On December 14, 1993, Aetna provided the doctors with
additional information regarding their deselection, including the
procedure for the panel review, summary matrices containing the
information upon which the deselection was based, a description of
the deselection criteria, and an explanation of the methodology
used in making deselection decisions. On January 12, 1994, Aetna
informed the doctors that the advisory panel reviews were scheduled
for January 17 or 18, 1994. On January 17, 1994, the doctors
informed Aetna that they were declining to attend the advisory
panel reviews. Aetna then informed the doctors that the advisory
panel would nonetheless convene on January 18, 1994, and again
invited their participation.
The January 18, 1994 advisory panel met and recommended the
reinstatement of Dr. Portela and the conditional reinstatement of
Dr. Benjamin, dependant upon his response to a patient complaint.
The advisory panel did not recommend that Drs. Fields, Maidenberg,
and Chelvam be reinstated. Aetna accepted all of the non-binding
recommendations of the advisory panel and notified the doctors of
its reinstatement decisions by letter dated January 31, 1994.
B. PROCEDURE
On November 24, 1993, the appellants filed suit against the
4
three Aetna defendants in the 165th District Court of Harris
County, Texas. They sought to enjoin Aetna from terminating the
doctors' preferred provider contracts and sought a declaratory
judgment that the "termination without cause" provisions in their
contracts were void and unenforceable because these provisions
violated Texas regulations governing the operation of PPOs, 28
Tex.Admin.Code § 3.3701-3.3705 (the "PPO rules"). The appellants
also alleged that the doctors' terminations violated the PPO rules
because they were not accompanied by reasonable due process.
On January 26, 1994, the appellants voluntarily dismissed
their suit against Aetna Health Plans. Subsequently, the remaining
defendants, Aetna Life Insurance and Aetna Health Management
(collectively, "Aetna"), removed the case to the United States
District Court for the Southern District of Texas pursuant to 28
U.S.C. § 1441(b), based on diversity of citizenship. On February
4, 1994, the district court denied the appellants' motion for a
temporary injunction of the doctors' deselection from the PPO.
Aetna then filed a motion for summary judgment. On May 31, 1994,
a magistrate judge entered a memorandum opinion recommending that
the district court grant the summary judgment motion, which the
district court adopted. On August 18, 1994, the district court
entered final judgment in favor of Aetna. TMA, HCMS, and the
doctors filed a timely notice of appeal.
C. THE DISTRICT COURT'S DECISION
The district court granted summary judgment for Aetna on the
ground that Texas law does not provide a private cause of action to
5
enforce the PPO rules. The district court reasoned that "if any of
the provisions of 28 Tex.Admin.Code § 3.3703 is violated, 28
Tex.Admin.Code § 3.3703(4) provides that enforcement shall be
pursued in accordance with Article 21.21-2 of the Texas Insurance
Code." Article 21.21-2 gives the Texas Board of Insurance
authority to investigate alleged violations of the Insurance Code
and determine appropriate sanctions and penalties. Tex.Ins.Code
Ann. art. 21.21-2 § 6 (Vernon Supp.1996). The court found that
"both 28 Tex.Admin.Code § 3.3703 and Article 21.21-2 of the
Insurance Code clearly indicate that the Texas Board of Insurance
is the only party responsible for assuring that insurers comply
with 28 Tex.Admin.Code § 3.3703." Additionally, the court rejected
the argument that the doctors could pursue their claims of
violations of the PPO rules under Tex.Ins.Code Ann. art. 21.21 §§
4(7)(b) and 16, reasoning that 28 Tex.Admin.Code § 3.3703(4)
explicitly sets forth the method whereby its provisions may be
enforced, and that sections 4(7)(b) and 16 are not applicable to
the doctors' complaints that they have been unfairly terminated
under the provisions of their preferred provider contracts. The
court concluded that Aetna's motion for summary judgment should be
granted because Texas law provides no private cause of action for
the conduct alleged by TMA, HCMS, and the doctors.
II. STANDARD OF REVIEW
We review the grant of a summary judgment de novo, applying
the same criteria used by the district court in the first instance.
Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th Cir.1994);
6
Conkling v. Turner, 18 F.3d 1285, 1295 (5th Cir.1994). Summary
judgment is proper "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as
a matter of law." Fed.R.Civ.P. 56(c). Whether Texas law provides
appellants with a private cause of action to enforce the PPO rules
is a pure question of law, for which summary judgment is proper.
Sheline v. Dun & Bradstreet Corp., 948 F.2d 174, 176 (5th
Cir.1991).
III. DISCUSSION
The appellants argue that the district court erred in
granting summary judgment in favor of Aetna on the ground that
Texas law does not provide a private cause of action to enforce
violations of the PPO rules. First, they contend that even if no
private cause of action exists, the doctors are entitled to a
declaratory judgment concerning their "contract rights" and related
injunctive relief. Second, the appellants argue that they can
challenge Aetna's alleged violations of the PPO rules under Article
21.21, § 16(a) of the Texas Insurance Code as unfair or deceptive
acts or practices in the business of insurance. Third, the
appellants claim that they can challenge Aetna's violations of the
PPO rules under Article 21.21, § 4(7)(b) as unfair discrimination
in the business of insurance.
Aetna responds that the district court properly granted
summary judgment because no private cause of action by which
7
appellants can enforce alleged violations of the PPO rules exists
under Texas law. Aetna argues that 28 Tex.Admin.Code § 3.3703(4)
provides the exclusive enforcement mechanism for violations of the
PPO rules. Aetna contends that the appellants, by characterizing
their suit as a request for a declaratory judgment of their
"contract rights," and by additionally arguing that the PPO rules
are incorporated into their contracts as a matter of law, merely
attempt to circumvent the exclusive enforcement mechanism of §
3.3703(4). Aetna also contends that the private causes of action
provided by Texas Insurance Code Article 21.21, §§ 16(a) and
4(7)(b) are inapplicable to the appellants' allegations that the
doctors' deselection from Aetna's PPO violates the PPO rules.2
A. THE PPO RULES
The Texas Department of Insurance (formerly the State Board of
Insurance) promulgated administrative regulations governing the
operation of preferred provider health insurance plans—the PPO
rules—which are codified in the Texas Administrative Code, title
28, sections 3.3701-3.3705. See 11 Tex. Reg. 2810 (1986). The
regulations apply to a health insurance plan in which an insurer
"provides through its health insurance policy for the payment of a
level of coverage which is different from the basic level of
coverage provided by the health insurance policy, if the insured
2
The parties raise additional arguments concerning the
merits of this case—whether the doctors' deselection from Aetna's
PPO and the "termination without cause" provisions of their
preferred provider contracts violate the PPO rules. We do not
address these arguments because we agree with the district court
that Texas law provides no private cause of action to the
appellants for enforcement of the PPO rules.
8
uses a preferred provider." 28 Tex.Admin.Code § 3.3701. Section
3.3703 provides that a preferred provider plan shall not be
considered unjust or unfair discrimination under the Texas
Insurance Code if it complies with these rules. 28 Tex.Admin.Code
§ 3.3703. The portion of § 3.3703 relevant to this appeal
provides:
(1) physicians ... may apply for and shall be afforded a fair,
reasonable, and equivalent opportunity to become preferred
providers. Such designation shall not be unreasonably
withheld. If such designation is withheld relating to a
physician, the insurer shall provide a review mechanism that
incorporates an advisory role only by a physician panel of not
less than three physicians ...
(2) the terms and conditions of the contract between the
insurer and the preferred providers shall be reasonable, shall
not violate any law or any section of this subchapter, shall
be based solely on economic, quality, and accessibility
considerations, and shall be applied in accordance with
reasonable business judgment....
Id. In addition to the requirements of § 3.3703, § 3.3705(2)
mandates that:
Every contract by an insurer with a physician or physician
group shall have a mechanism for the resolution of complaints
initiated by the insured, physicians, or physician
organization. Such mechanism shall provide for reasonable due
process which includes an advisory role only by a physician
panel selected in the manner provided in § 3.3703(1) of this
title (relating to Requirements)....
28 Tex.Admin.Code § 3.3705(2).
The appellants contend that the "termination without cause"
provisions of the doctors' preferred provider contracts violate §
3.3703(2) (requiring contract terms to be based solely on economic,
quality, and accessibility considerations) and § 3.3705(2)
(requiring that every preferred provider contract provide for
reasonable due process in connection with any complaint by the
9
physician). Additionally, they argue that the doctors' deselection
from Aetna's PPO violates § 3.3703(1) because it was not
accompanied by reasonable due process. Section 3.3703(4) controls
the treatment of violations of the PPO rules. This section
provides that:
in addition to all other contract rights, violations of these
rules shall be treated for purposes of complaint and action in
accordance with the Insurance Code, Article 21.21-2, and the
provisions of that article shall be utilized insofar as
practicable, as it relates to the power of the board [now
Department], hearings, orders, enforcement, and penalties....
28 Tex.Admin.Code § 3.3703(4). The district court concluded that
§ 3.3703(4) precludes the existence of a private cause of action to
enforce the PPO rules by establishing that action under Texas
Insurance Code Article 21.21-2 shall be the exclusive enforcement
mechanism for these rules. We agree.
Texas Insurance Code Article 21.21-2 § 6(a) authorizes the
State Board of Insurance (now the Texas Department of Insurance) to
ensure compliance with the Insurance Code. Tex.Ins.Code Ann. art.
21.21-2 § 6(a) (Vernon Supp.1996). Texas courts have repeatedly
held that no private cause of action exists under article 21.21-2.
See, e.g., Allstate Ins. Co. v. Watson, 876 S.W.2d 145, 148
(Tex.1994); Maryland Ins. Co. v. Head Indus. Coatings & Servs.,
Inc., 906 S.W.2d 218, 225 (Tex.App.—Texarkana 1995, no writ);
Progressive County Mut. Ins. Co. v. Boman, 780 S.W.2d 436, 437 n.
1 (Tex.App.—Texarkana 1989, no writ) (noting that "[t]he Unfair
Claims Settlement Practices Act [article 21.21-2] does not purport
to give individuals a private cause of action. Rather, it
authorizes the State Board of Insurance to investigate and impose
10
sanctions ..."); Cantu v. Western Fire & Casualty Ins. Co., 716
S.W.2d 737, 741 (Tex.App.—Corpus Christi 1986), writ ref'd. n.r.e.
per curiam, 723 S.W.2d 668 (Tex.1987). Because § 3.3703(4) refers
solely to section 21.21-2 for the manner in which the PPO rules may
be enforced, the appellants may not bring a judicial action to
privately enforce the PPO rules.3
The appellants argue that, despite the reference of §
3.3703(4) to Article 21.21-2 for enforcement of the PPO rules, they
may seek a declaratory judgment of their "contract rights," and
3
Since oral argument, the Texas Department of Insurance has
adopted amendments to the PPO rules supporting our conclusion
that § 3.3703(4) provides that the exclusive enforcement
mechanism for the PPO rules is administrative action by the Texas
Department of Insurance under Tex.Ins.Code Ann. art. 21.21-2 §
6(a). Although § 3.3703(4) itself remains unchanged, § 3.3701,
defining the scope of the PPO rules, has been amended effective
December 6, 1995 to include the following language:
These sections do not create a private cause of action
for damages or create a standard of care, obligation or
duty that provides a basis for a private cause of
action. These sections do not abrogate a statutory or
common law cause of action, administrative remedy or
defense otherwise available....
20 Tex.Reg. 9853, 9862 (1995). Of course, in deciding this
case, we consider the regulations in effect at the time of
the doctors' deselection from Aetna's PPO. However, these
amendments are relevant because, in its comments on the
amendments to section 3.3701, the Texas Department of
Insurance stated that:
Agency Response: This language does not change any
existing law but only emphasizes that these rules are
administrative rules. Violation subjects the violator
to administrative action by the commissioner but does
not affect private causes of action. In other words,
these rules cannot form the basis of a private lawsuit,
nor can they diminish other rights of action or
defenses....
20 Tex.Reg. 9853, 9854 (1995).
11
pursue relief through the private causes of action available under
Texas Insurance Code Article 21.21 §§ 16(a) and 4(7)(b).
B. DECLARATORY JUDGMENT
The appellants argue that, even if no private cause of action
exists, they are entitled to a declaratory judgment regarding their
"contract rights," relying on the introductory language in 28
Tex.Admin.Code § 3.3703(4) ("in addition to all other contract
rights") and the Texas Uniform Declaratory Judgment Act,
Tex.Civ.Prac. & Rem.Code Ann §§ 37.001-37.011 (Vernon 1986). They
seek a declaration that the "termination without cause" provisions
of the doctors' preferred provider contracts are unenforceable in
light of 28 Tex.Admin.Code § 3.3703(2) (requiring contract terms to
be based solely on economic, quality, and accessibility
considerations) and § 3.3705(2) (requiring that every preferred
provider contract provide for reasonable due process in connection
with any complaint by the physician). Additionally, they argue
that the PPO rules form a part of the doctors' preferred provider
contracts as a matter of law, and therefore their deselection from
Aetna's PPO violated their "contract rights" because the
deselection violated 28 Tex.Admin.Code §§ 3.3703 and 3.3705.
Although appellants claim to desire a declaration of their
contract rights, in actuality, they are requesting the court to
apply the requirements of the PPO rules to invalidate their
deselection from Aetna's PPO. They characterize their claim as a
private contract dispute; however, they do not allege a breach of
contract, nor do they seek an interpretation of unclear contractual
12
provisions. Rather they seek a declaration that a provision of
their contract is unenforceable because it is prohibited by the PPO
rules and further that the requirements of the PPO rules are
incorporated into their contracts as a matter of law.
Additionally, the appellants claim that they are entitled to
"related injunctive relief." Therefore, they seek to directly
enforce compliance with the PPO rules.
Violations of the PPO rules, by their own terms, must be
treated for complaint and action in accordance with Article 21.21-2
of the Texas Insurance Code; the appellants cannot maintain a
declaratory judgment action which would in effect require this
court to enforce the PPO rules. See Cowan Boat Transfer, Inc. v.
Texas Employment Comm'n, 789 S.W.2d 405, 407 (Tex.App.—Austin 1990,
writ dism'd by agr.) (holding that where the legislature has
provided an exclusive remedy for an alleged wrong, the right to
maintain a declaratory judgment action is barred); see also Alamo
Express, Inc. v. Union City Transfer, 158 Tex. 234, 309 S.W.2d 815,
827 (1958). Appellants cannot circumvent the procedure provided by
§ 3.3703(4) by characterizing their request for enforcement of the
PPO rules as a request for a declaration of their contract rights
and "related injunctive relief." Therefore, we hold that the Texas
Uniform Declaratory Judgment Act does not provide the appellants
with a cause of action by which to enforce violations of or ensure
compliance with the PPO rules.
C. ARTICLE 21.21, SECTION 16(A)
Appellants additionally argue that, despite the language of
13
§ 3.3703(4), enforcement by the Texas Department of Insurance under
Article 21.21-2 is not the exclusive remedy for enforcement of the
PPO rules. Appellants contend that, because the PPO rules were
promulgated under Article 21.21 of the Texas Insurance Code, as
well as Article 21.21-2, they can pursue a remedy for violation of
the PPO rules through Article 21.21, § 16(a).
Section 16(a) provides:
Any person who has sustained actual damages as a result of
another engaging in an act or practice declared in section 4
of this Article or in rules or regulations lawfully adopted by
the Board [now Texas Department of Insurance] under this
article to be unfair methods of competition or unfair or
deceptive acts or practices in the business of insurance ...
may maintain an action against the person or persons engaging
in such acts or practices.
Tex.Ins.Code Ann. art. 21.21 § 16(a) (Vernon Supp.1995).4
Appellants argue that because the doctors have sustained actual
damage as a result of Aetna's deselection in violation of the PPO
rules, they are entitled to pursue injunctive and "other relief"
under Tex.Ins.Code Ann. art. 21.21 § 16(b) (Vernon Supp.1996).
Aetna responds that appellants have no private cause of action
under Article 21.21 § 16(a) as a matter of law because (1) Texas
law does not declare a violation of the PPO rules to constitute an
unfair method of competition or an unfair or deceptive act or
practice, (2) the doctors are not "persons" for purposes of Article
4
This section has recently been amended by Acts 1995, 74th
Leg., Ch. 414, § 13, effective September 1, 1995. See
Tex.Ins.Code Ann. art. 21.21 § 16(a) (Vernon Supp.1996). The
amended § 16(a) no longer provides a private cause of action to a
person injured by an act or practice declared to be an unfair
method of competition or an unfair or deceptive trade or practice
in rules or regulations adopted by the Texas Department of
Insurance. Id.
14
21.21 § 16(a), and (3) the doctors have not suffered any actual
damages as a result of any conduct prohibited by Article 21.21 §
16(a).
Although the language of § 16(a) provides a cause of action to
"any person," the right to sue under § 16(a) has been limited by
Texas courts to persons in privity of contract with the insurer on
an insurance policy or an intended beneficiary of an insurance
policy. In re Burzynski, 989 F.2d 733, 740 (5th Cir.1993);
Shelton Ins. Agency v. St. Paul Mercury Ins. Co., 848 S.W.2d 739,
744 (Tex.App.—Corpus Christi 1993, writ denied) (stating that "no
authority exists to extend the meaning of the term "person,' as
found in art. 21.21, beyond one who was either an insured or an
intended beneficiary of the policy"); CNA Ins. Co. v. Scheffey,
828 S.W.2d 785, 791 (Tex.App.—Texarkana 1992, writ denied);
Chaffin v. Transamerica Ins. Co., 731 S.W.2d 728, 731
(Tex.App.—Houston [14th Dist.] 1987, writ ref'd n.r.e.). The
doctors are neither in privity of contract with Aetna on an
insurance policy nor intended beneficiaries of an insurance policy.
Therefore, the appellants cannot maintain a suit under Tex.Ins.Code
Ann. art. 21.21 § 16(a). Because we determine that the doctors are
not "persons" within the meaning of § 16(a), we do not address
Aetna's additional arguments that violations of the PPO rules are
not declared to be unfair methods of competition or unfair or
deceptive acts or practices and that the doctors have not suffered
any actual damages.
D. ARTICLE 21.21, SECTION 4(7)(B)
15
Finally, appellants argue that, despite § 3.3703(4), they can
pursue a private cause of action for violations of the PPO rules
under former Texas Insurance Code Article 21.21 § 4(7)(b) (Vernon
Supp.1995).5 Former Texas Insurance Code Article 21.21 section
4(7)(b) prohibits unfair discrimination in the business of
insurance. Tex.Ins.Code Ann. art. 21.21 § 4(7)(b) (Vernon
Supp.1995). Unfair discrimination is defined as:
Making or permitting any unfair discrimination between
individuals of the same class and of essentially the same
hazard in the amount of premium, policy fees, or rates charged
for any policy or contract of accident or health insurance or
in the benefits payable thereunder, or in any of the terms or
conditions of such contract, or in any other manner whatever.
Id. The district court held that "there is no indication that
section 4(7)(b) is in any way implicated by Plaintiffs'
allegations" because the "Plaintiffs claim that they have been
unfairly terminated under the provisions of their preferred
provider contracts, not that they have been unfairly discriminated
against in terms of policy premiums, rates or fees." We agree.
On appeal, the doctors argue for the first time that their
deselection resulted in unfair discrimination to their patients,
who are Aetna policyholders, and that the doctors suffered actual
damage because of this unfair discrimination against their
patients. Ordinarily, we do not address arguments that were not
presented to the district court. See E.E.O.C. v. Clear Lake Dodge,
25 F.3d 265, 270 n. 3 (5th Cir.1994). Even had the doctors raised
this argument before the district court, they could not maintain an
5
Texas Insurance Code § 4(7)(b) has recently been deleted.
See Acts 1995, 74th Leg., ch. 414 § 11, eff. Sept. 1, 1995.
16
action against Aetna under § 4(7)(b). A violation of Article 21.21
§ 4(7)(b) is an unfair practice that is actionable through Article
21.21 § 16(a), which provides a private cause of action to "any
person who has sustained actual damages as a result" of an
insurer's unfair method of competition or unfair or deceptive act
or practice. See Tex.Ins.Code Ann. art. 21.21 § 4 (defining the
actions described in the subsections as "unfair methods of
competition and unfair and deceptive acts or practices in the
business of insurance"); § 16(a) (Vernon Supp.1995). We have
already decided that the doctors are not "persons" within the
meaning of § 16(a). See Burzynski, 989 F.2d at 740. Therefore,
appellants may not bring a private cause of action to enforce the
PPO rules under former Article 21.21 § 4(7)(b). Accordingly, we
conclude that the district court properly granted summary judgment
to Aetna on the grounds that Texas law does not provide a private
cause of action for enforcement of the PPO rules.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the district court's
summary judgment in favor of Aetna.
17