Healthcare Ally Management of California, LLC v. Wsp USA, Inc.

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT HEALTHCARE ALLY No. 24-3479 MANAGEMENT OF D.C. No. CALIFORNIA, LLC, 2:22-cv-04814- DMG-PVC Plaintiff - Appellant, v. OPINION WSP USA, INC.; AETNA LIFE INSURANCE COMPANY, Defendants - Appellees. Appeal from the United States District Court for the Central District of California Dolly M. Gee, District Judge, Presiding Argued and Submitted August 22, 2025 Pasadena, California Filed August 11, 2026 Before: Marsha S. Berzon, Stephen A. Higginson, and Jennifer Sung, Circuit Judges. * * The Honorable Stephen A. Higginson, United States Circuit Judge for the U.S. Court of Appeals for the Fifth Circuit, sitting by designation. 2 HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC. Opinion by Judge Berzon SUMMARY ** Employee Retirement Income Security Act / Preemption The panel affirmed in part and reversed in part the district court’s dismissal and remanded for further proceedings in an action brought under the Employee Retirement Income Security Act (“ERISA”) and California state law by Healthcare Ally Management of California, LLC (“HAMOC”), against WSP USA, Inc., and Aetna Life Insurance Co. The case arose from a dispute over the proper payment rate for a surgery that took place at the La Peer Surgery Center. At the time, the patient was enrolled in an ERISA healthcare plan provided by the patient’s employer, WSP, and Aetna administrated the plan. Before providing out-of- network surgical services, La Peer placed a verification call to Aetna, which told La Peer that the patient would cover a portion of the surgery but that WSP’s plan would pay the remaining balance at the usual, customary, and reasonable rate and that payment would not be based on the Medicare fee schedule. Contrary to Aetna’s representation, however, WSP paid La Peer not at the USR rate, but at the Medicare rate, which amounted to five percent of La Peer’s bill. HAMOC, La Peer’s successor in interest, brought suit. The district court held that HAMOC lacked derivative ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.  HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC. 3 standing to assert an ERISA claim on La Peer’s behalf and dismissed that claim. The district court dismissed the remainder of HAMOC’s complaint pursuant to Fed. R. Civ. P. 12(b)(6), concluding that the state law claims necessarily depended on the existence of an ERISA-covered plan and so were preempted by ERISA. Under 29 U.S.C. § 1144(a), ERISA preempts all state laws that “relate to” any healthcare plan regulated by the statute. The two categories of state-law claims that “relate to” an ERISA plan are claims that have a “reference to” an ERISA plan and claims that have “an impermissible connection with” an ERISA plan. Reversing in part, the panel held that ERISA did not preempt HAMOC’s negligent misrepresentation claim, which arose from coverage representations made to an out- of-network medical provider during a verification call in advance of medical services. Because this claim did not focus on an ERISA-regulated relationship, it was not preempted under the “connection with” test. Agreeing with other circuits, the panel concluded that the negligent misrepresentation claim was not preempted under the “reference to” test because it was not a claim that Congress could have intended to route through ERISA’s civil enforcement scheme. Rather, HAMOC was simply an independent entity claiming damages. The panel explained that the result it reached accorded with the underlying premises of ERISA preemption. The panel distinguished Bristol SL Holdings, Inc. v. Cigna Health & Life Ins. Co., 103 F.4th 597 (9th Cir. 2024), which held that ERISA preempted state law breach of contract and promissory estoppel claims. 4 HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC. Affirming in part, the panel held that under Bristol, ERISA preempted HAMOC’s California state law claim of promissory estoppel. COUNSEL Jonathan A. Stieglitz (argued), Stieglitz Law, Los Angeles, California, for Plaintiff-Appellant. Jonathan M. Herman (argued) and Joel A. Mintzer, Herman Law Firm, Los Angeles, California, for Defendants- Appellees. OPINION BERZON, Circuit Judge: The Employee Retirement Income Security Act of 1974 (“ERISA”) contains a provision that expressly preempts all state laws that “relate to” any healthcare plan regulated by the statute. 29 U.S.C. § 1144(a). We consider whether ERISA preempts a state law negligent misrepresentation claim that arises from coverage representations made to an out-of-network medical provider in advance of medical services. We hold that ERISA does not preempt the claim and so reverse. I This case arises from a dispute over the proper payment rate for a surgery that took place at the La Peer Surgery  HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC. 5 Center. 1 At the time, the patient was enrolled in an ERISA healthcare plan provided by the patient’s employer, defendant WSP USA, Inc. Defendant Aetna Life Insurance Company administered WSP’s healthcare plan by coordinating with medical providers like La Peer and processing those providers’ reimbursement claims under the terms of WSP’s health benefit plan. As is common practice in the health insurance industry, WSP’s healthcare plan differentiated “in-network” providers from “out-of-network” providers, a distinction that determines how the plan reimburses providers for the medical services they perform. In-network providers enter written preferred-provider contracts with healthcare plans and agree to accept discounted reimbursements for their services. In exchange for these discounts, the plans provide incentives for their members to seek in-network treatment, thereby increasing the total volume of an in-network provider’s business. By contrast, out-of-network providers do not have preexisting contractual agreements in place with a given healthcare plan. Insurers often reimburse out-of-network providers a percentage of the market rate for a given procedure, but such providers can charge higher rates because, unlike in-network providers, they have not agreed in advance to accept discounted reimbursements. Out-of- network providers typically receive from insurers the 1 This appeal comes to us from an order granting a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). We therefore “accept as true” the “well-pleaded allegations of material fact” in the operative, third amended complaint and “construe [those facts] in the light most favorable to the non-moving party.” Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010). 6 HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC. “Usual, Customary, and Reasonable” (“UCR”) rate for their services, a term that denotes the average amount paid for a specific procedure in a given geographic area based on what other providers in that area charge for the same service, but Medicare coverage can affect whether the UCR rate applies. 2 Because out-of-network providers lack contractual reimbursement agreements with healthcare plans, they often place a “verification call” to the plan administrator before performing a procedure to confirm that the patient is eligible for coverage, to ascertain that the particular procedure is covered, and to learn the likely reimbursement rate. La Peer provided out-of-network surgical services for the patient in this case. 3 Before doing so, La Peer placed a verification call to Aetna to confirm that the patient’s plan would pay the surgery center for the procedure. On that call, Aetna told La Peer that the patient would cover a portion of the surgery as an out-of-pocket expense but that WSP’s plan would pay the remaining balance at the UCR rate. 4 Aetna 2 For a patient covered by both Medicare and by employer-sponsored healthcare, the rate paid to the provider may depend on which insurance is considered the patient’s “primary” insurance. See Ctrs. for Medicare & Medicaid Servs., How Medicare Works with Other Insurance, 1, 4 (Feb. 2026), https://www.medicare.gov/publications/02179-how- medicare-works-with-other-insurance.pdf [https://perma.cc/5NSY- UVZN]. 3 The dispute here arises from a phone call between La Peer and Aetna. Neither the patient nor La Peer is a party to this litigation. The patient assigned their reimbursement rights to La Peer, who in turn assigned those rights to plaintiff Healthcare Ally Management. 4 The complaint does not specify whether La Peer told Aetna that the patient was Medicare-covered or Medicare-eligible. The complaint does state that neither defendant informed La Peer of any provision in the patient’s health insurance policy that limited the method of payment for services provided.  HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC. 7 also told La Peer that “payment would not be based on the Medicare Fee Schedule.” 5 Neither Aetna nor WSP informed La Peer before the surgery that the plan contained exclusions, limitations, or qualifications that might reduce or otherwise impact Aetna’s promised UCR reimbursement rate. Nor did Aetna or WSP provide La Peer with a copy of the plan before the surgery. After receiving assurance that WSP’s plan would pay for the surgery at the UCR rate, La Peer moved forward with the procedure. La Peer then sent a bill to WSP. Sometime later, WSP paid La Peer for the patient’s surgery. Contrary to Aetna’s representation in its phone call with La Peer, WSP paid La Peer not at the UCR rate but, instead, at the Medicare rate, which amounted to five percent of La Peer’s bill. The complaint does not state whether WSP provided an explanation for paying at the Medicare rate or, if so, what that explanation was. Healthcare Ally Management of California (“HAMOC”), La Peer’s successor in interest, sued both WSP and Aetna in California state court, initially asserting only state law claims. After WSP removed the case to federal court on federal question grounds—ERISA complete preemption, see Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 66 (1987)—and diversity grounds, HAMOC amended its complaint to “remove those causes of action that are preempted by [ERISA],” including a breach of contract 5 The Medicare Fee Schedule is a list developed by the Centers for Medicare & Medicaid Services that specifies the maximum reimbursement rates that Medicare will pay providers for their services. See Ctrs. for Medicare & Medicaid Servs., Fee Schedules (2025), https://www.cms.gov/medicare/payment/fee-schedules [https://perma.cc/EAY2-3FK7]. The Medicare Fee Schedule typically specifies a lower rate of payment than does the UCR. 8 HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC. claim and a claim brought pursuant to California’s Unfair Competition Law. The operative, third amended complaint asserts two state law claims: negligent misrepresentation and promissory estoppel. HAMOC also asserts a third cause of action for failure to pay ERISA plan benefits under 29 U.S.C. § 1132(a)(1)(B). The district court held that HAMOC lacked derivative standing to assert an ERISA claim on La Peer’s behalf and so dismissed that claim. 6 The court dismissed the remainder of HAMOC’s complaint pursuant to Rule 12(b)(6), concluding that the state law claims “necessarily depend on the existence of an ERISA-covered plan” and so were preempted. Healthcare Ally Mgmt. of Cal., LLC v. WSP USA, Inc., No. CV 22-4814-DMG, 2024 WL 2880204, at *4 (C.D. Cal. May 1, 2024). ERISA preemption is “a question of law that we review de novo.” Johnson v. Couturier, 572 F.3d 1067, 1078 (9th Cir. 2009). II Congress enacted ERISA in 1974 to protect the interests of those who receive health insurance through their employers. See 29 U.S.C. § 1001. Recognizing “that the continued well-being and security of millions of employees and their dependents are directly affected by [employee benefit] plans,” id. § 1001(a), Congress designed a statute that “comprehensively regulates . . . employee welfare benefit plans that . . . provide medical, surgical, or hospital care” to their beneficiaries, Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 44 (1987). In particular, ERISA “establish[es] standards of conduct, responsibility, and obligation for fiduciaries of employee benefit plans.” 29 U.S.C. § 1001(b). 6 HAMOC does not appeal this ruling.  HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC. 9 Among other things, ERISA’s substantive provisions require health insurance plans to disclose certain information to covered individuals, to compile and file annual financial reports with the Secretary of Labor, and to adhere to a variety of standards of conduct and fiduciary duties. See, e.g., id. §§ 1021–1032, 1102(a), 1104. To that end, ERISA includes several provisions that together operate to “provide a uniform regulatory regime over employee benefit plans.” Aetna Health Inc. v. Davila, 542 U.S. 200, 208 (2004). Two of those provisions are principally relevant here. First, ERISA protects the interests of “participants” and “beneficiaries”—those entitled to benefits under an employee welfare plan—by setting forth a “comprehensive civil enforcement scheme.” Pilot Life, 481 U.S. at 54. That scheme—ERISA § 502, 29 U.S.C. § 1132—authorizes certain individuals and entities to bring suit for various reasons. 7 For our purposes, ERISA specifies two parties that may bring a civil action “to recover benefits due to him under the terms of his plan.” 29 U.S.C. § 1132(a). Those parties include plan “participant[s]” and plan “beneficiar[ies],” id., titles which generally refer to individuals eligible to receive benefits, like medical care, under the terms of an employee benefit plan, see id. § 1002(7)–(8). Section 502(a)’s specification that particular parties may sue under ERISA “represents a careful balancing” of interests encompassed by ERISA’s civil enforcement regime. Pilot Life, 481 U.S. at 54. The Supreme Court has recognized that this scheme “would be completely undermined if ERISA-plan participants and beneficiaries 7 For example, a participant, beneficiary, or fiduciary may sue a plan to enjoin practices which violate ERISA or to obtain equitable relief to enforce provisions of ERISA. See 29 U.S.C. § 1132(a)(3). 10 HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC. were free to obtain remedies under state law that Congress rejected in ERISA.” Id. Critically, “health care providers” like surgical centers, doctors’ offices, and hospitals “are not ‘beneficiaries’ within the meaning of ERISA’s enforcement provisions.” DB Healthcare, LLC v. Blue Cross Blue Shield of Ariz., Inc., 852 F.3d 868, 874 (9th Cir. 2017). That is the case even when an ERISA participant or beneficiary receives plan-covered treatment from a provider for which the provider later receives reimbursement from an insurance company. Remuneration to a “medical provider for services rendered is not properly termed a ‘benefit’ to the provider,” such that § 502(a) would vest in providers the direct authority as beneficiaries to bring suit. Id. at 874–75. The upshot is that ERISA does not establish a cause of action for medical care providers who contend that an ERISA plan or its administrator, often an insurance company, has not paid, or has paid too little, for covered healthcare. This gap in ERISA’s enforcement system has led providers to seek various ways to litigate payment disputes with ERISA plans and their administrators. From the provider’s perspective, the most straightforward way to litigate such disputes is for the patient to assign to the provider their § 502(a) right to sue. “ERISA does not forbid assignment by a beneficiary of his right to reimbursement under a health care plan to the health care provider.” Misic v. Bldg. Serv. Emps. Health & Welfare Tr., 789 F.2d 1374, 1377 (9th Cir. 1986) (per curiam). So a provider seeking to sue a plan or plan administrator for benefits under § 502(a) often can “do so derivatively, relying on its patients’ assignments of their benefits claims.” Spinedex Physical Therapy USA Inc. v. United Healthcare of Ariz., Inc., 770 F.3d 1282, 1289 (9th Cir. 2014).  HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC. 11 But the assignment solution does not always work. Plans can foreclose such assignments by including an “express non-assignment clause in the plan.” Davidowitz v. Delta Dental Plan of Cal., Inc., 946 F.2d 1476, 1481 (9th Cir. 1991). In that circumstance, a provider cannot sue under § 502(a) and must instead resort to a different cause of action. Such causes of action take different forms, often depending upon whether the provider is in-network or out- of-network with regard to the relevant health benefit scheme. In-network providers enter separate contractual agreements with their patients’ employee benefit plans. Those agreements specify rates at which providers will accept and plan administrators will pay for services rendered under an employee benefit plan. See, e.g., Blue Cross of Cal. v. Anesthesia Care Assocs. Med. Grp., Inc., 187 F.3d 1045, 1048 (9th Cir. 1999) (describing in-network provider agreements); Bristol SL Holdings, Inc. v. Cigna Health & Life Ins. Co., 103 F.4th 597, 599–600 (9th Cir. 2024) (same). When a provider disputes the plan administrator’s payment for ERISA-plan covered services, that provider can do so by bringing a cause of action, alleging that the plan breached the provider agreement. Such breach of contract claims “arise from the terms of [the] provider agreements[,] . . . are not claims for benefits under the terms of ERISA plans,” and have been held not preempted by ERISA. Blue Cross of Cal., 187 F.3d at 1050. Thus, even when ERISA-plan benefits are at issue, in-network providers have a remedy other than a derivative § 502(a) benefits claim. Out-of-network providers, on the other hand, have no direct contracts with ERISA plans. When a dispute arises, “the terms of the benefit plan [are] the provider’s only basis for [a] reimbursement claim.” Id. at 1051. Assignment makes it “unnecessary for health care providers to evaluate 12 HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC. the solvency of patients before commencing medical treatment.” Misic, 789 F.2d at 1377. So out-of-network providers regularly seek assignment of benefit rights from their patients. See, e.g., Spinedex Physical Therapy, 770 F.3d at 1288. But what happens when out-of-network providers provide healthcare services to patients whose plans do not allow assignments? In such instances, providers can sometimes succeed in enforcing an assignment; a plan administrator “waive[s] the right to enforce an anti- assignment provision” if the administrator is aware of the assignment yet fails to “raise the anti-assignment provision as a basis to deny benefits” during claim processing. Beverly Oaks Physicians Surgical Ctr., LLC v. Blue Cross & Blue Shield of Ill., 983 F.3d 435, 440–41 (9th Cir. 2020). Absent a waiver, however, out-of-network providers may lack any ability to recover from the plans directly. 8 Providers can, of course, require up-front payments from their patients, who in turn can file a claim for reimbursement with their employee benefit plan for the benefits due to them. See Misic, 789 F.2d at 1377. Even then, out-of-network providers regularly verify with plan administrators whether their patients are covered and at what level. That practice allows the providers to determine a patient’s total cost burden, adjudge the patient’s likely ability to meet it, and determine whether they will bill the patient or the insurance provider for the procedure. 8 Here, La Peer had a different problem: It assigned claims for collection to a third party, HAMOC, that lacked derivative standing to sue as an assignee under ERISA.  HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC. 13 Attempts by out-of-network providers to secure from ERISA plans payment they allege is owed for services rendered to plan-covered patients have given rise to a myriad of lawsuits in which such providers have asserted various state law causes of action. See, e.g., The Meadows v. Emps. Health Ins., 47 F.3d 1006 (9th Cir. 1995) (negligent misrepresentation, estoppel, and breach of contract); Marin Gen. Hosp. v. Modesto & Empire Traction Co., 581 F.3d 941 (9th Cir. 2009) (negligent misrepresentation, estoppel, breach of contract, and quantum meruit); Depot, Inc. v. Caring for Montanans, Inc., 915 F.3d 643 (9th Cir. 2019) (fraudulent inducement, constructive fraud, negligent misrepresentation, unjust enrichment, and unfair trade practices); Bristol, 103 F.4th 597 (breach of oral contract, breach of implied contract, and promissory estoppel); Greany v. W. Farm Bureau Life Ins. Co., 973 F.2d 812 (9th Cir. 1992) (negligence, unfair practices, tortious interference with contract, conversion, and estoppel). This case arises from one such suit—a suit for negligent misrepresentation and promissory estoppel under state law, premised on alleged representations made by an ERISA plan administrator to an out-of-network service provider during a verification call. The potential barrier to such a lawsuit is the principal statutory provision relevant to this case, ERISA’s famously expansive preemption clause. 29 U.S.C. § 1144(a). That provision specifies that ERISA “shall supersede any and all State laws insofar as they . . . relate to any employee benefit plan” covered by ERISA. Id. Where a federal law like ERISA conflicts with and therefore preempts a state law, that state law is “without effect.” Merck Sharp & Dohme Corp. v. Albrecht, 587 U.S. 299, 314 (2019) (quoting Mut. Pharm. Co. v. Bartlett, 570 U.S. 472, 480 (2013)). 14 HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC. The text of ERISA’s preemption clause, “and in particular, the phrase ‘relate to,’ is broad.” Depot, 915 F.3d at 665. So broad, in fact, that “applying the ‘relate to’ provision according to its terms [is] a project doomed to failure, since, as many a curbstone philosopher has observed, everything is related to everything else.” Cal. Div. of Lab. Standards Enf’t v. Dillingham Constr., N.A., Inc., 519 U.S. 316, 335 (1997) (Scalia, J., concurring). To avoid the doomsday problem of relational overreach, the Court has sought to provide “workable standards” for determining the scope of § 1144(a), Depot, 915 F.3d at 665 (citation omitted), lest ERISA’s preemptive effect “pick up every ripple in the pond, producing a result that no sensible person could have intended.” Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141, 153 (2001) (Scalia, J., concurring) (citation modified). Under those standards, we have said, there are “‘two categories’ of state-law claims that ‘relate to’ an ERISA plan—claims that have a ‘reference to’ an ERISA plan, and claims that have ‘an impermissible connection with’ an ERISA plan.” Depot, 915 F.3d at 665 (citation modified) (quoting Gobeille v. Liberty Mut. Ins. Co., 577 U.S. 312, 319–20 (2016)). But identifying those categories hasn’t resulted in clarity in applying ERISA’s express preemption provision. Much like the “unhelpful text and the frustrating difficulty of defining” the preemption clause’s “relate to” term, N.Y. State Conf. of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 656 (1995), the “reference to” and “connection with” tests lack easily ascertainable bounds. The Supreme Court has accordingly cautioned against “uncritical literalism” that would extend ERISA’s preemption clause to “infinite relations” or “infinite connections.” Id. Instead, courts must “go beyond” the text  HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC. 15 of the statute and also beyond the short-form tests meant to cabin statutory overreach, and look “to the objectives of the ERISA statute as a guide to the scope of the state law that Congress understood would survive,” Bast v. Prudential Ins. Co. of Am., 150 F.3d 1003, 1007 (9th Cir. 1998) (quoting Travelers, 514 U.S. at 656), “as well as to the nature of the effect of the state law on ERISA plans,” Cal. Div. of Lab. Standards Enf’t, 519 U.S. at 325. See also Dishman v. UNUM Life Ins. Co. of Am., 269 F.3d 974, 980–81 (9th Cir. 2001). “[T]he purpose of Congress is the ultimate touchstone” in every preemption analysis. Waks v. Empire Blue Cross/Blue Shield, 263 F.3d 872, 874–75 (9th Cir. 2001) (quoting Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 8 (1987)); Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 138 (1990). With those practical considerations and preemption precepts in mind, we turn to considering whether ERISA preempts HAMOC’s state law claim of negligent misrepresentation. III The state law claim here at issue is California’s tort of negligent misrepresentation. With some trepidation given the imprecision of the “connection with” and “refer to” tests meant to implement ERISA’s “relate to” preemption standards, we shall begin by trying to apply those two standards to the California negligent misrepresentation claim HAMOC seeks to litigate, looking closely to cases that have applied those tests. 9 We then turn to a more holistic, 9 Bristol SL Holdings, Inc. v. Cigna Health & Life Insurance Co. is one such case. 103 F.4th 597 (9th Cir. 2024). The parties’ arguments center largely on Bristol’s applicability. We consider Bristol separately, as its 16 HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC. practical consideration of congressional intent, keeping in view the particulars of ERISA coverage and the competing interests of providers and ERISA-plan-covered employees. A We consider first the “connection with” prong of the standard ERISA-preemption analysis, as it is more straightforward and easier to apply. “[T]he Supreme Court has not provided a succinct definition of, or analytical framework for, evaluating the phrase ‘connection with.’” Paulsen v. CNF Inc., 559 F.3d 1061, 1082 (9th Cir. 2009). Instead, we consider “the objectives of the ERISA statute,” Gobeille, 577 U.S. at 320 (citations omitted), and “presum[e] that Congress does not intend to supplant . . . state laws regulating a subject of traditional state power,” id. at 325 (citation omitted). To do this, our court employs a “relationship test.” Bafford v. Northrop Grumman Corp., 994 F.3d 1020, 1031 (9th Cir. 2021). Key to this test is understanding that ERISA “comprehensively regulates certain relationships.” Gen. Am. Life Ins. Co. v. Castonguay, 984 F.2d 1518, 1521 (9th Cir. 1993). The relationship test determines whether Congress intended to preempt state laws by addressing whether “the claim bears on an ERISA-regulated relationship, e.g., the relationship between plan and plan member, between plan and employer, between employer and employee.” Bafford, 994 F.3d at 1031 (quoting Paulsen, 559 F.3d at 1082). For example, in the in-network context, breach of contract claims premised on stand-alone contractual agreements between providers and insurers do not implicate “connection pertinence to this case is best understood after we have surveyed the operation of ERISA preemption standards more broadly.  HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC. 17 with” preemption. Providers are not ERISA-entities, and such written agreements therefore do not govern ERISA relationships. See Blue Cross of Cal., 187 F.3d at 1054. Depot, Inc. v. Caring for Montanans, Inc. provides another example of the application of the relationship test. 915 F.3d 643. The plaintiffs in Depot were employers in Montana who provided their employees with health insurance coverage under employee benefit plans administered by the defendant health insurance companies. Id. at 650. During contract negotiations, the insurers represented to the employers that monthly insurance premiums for the employee benefit plans would include only the cost of benefits, a representation upon which the plaintiffs relied when agreeing to participate in the plan. Id. at 651. The employers later learned that such representations were false. The insurance companies, it turned out, “unlawfully padded the premiums with two surcharges without [the] plaintiffs’ knowledge or consent.” Id. Plaintiffs sued, asserting several state law causes of action, including a negligent misrepresentation claim. Id. at 652. Applying the relationship test, Depot held that ERISA did not preempt the state law claims. Id. at 666–67. We acknowledged that both the plaintiffs and defendants were ERISA entities, so the claim “involve[d] an ERISA- regulated relationship.” Id. at 666. But the presence of such a relationship did not alone require preemption, because the “relationship [was] unrelated to plaintiffs’ state-law claims, which focus[ed] on the misrepresentations made by defendants while they were operating ‘just like any other commercial entity.’” Id. (quoting Paulsen, 559 F.3d at 1083). That holding aligns with the Supreme Court’s admonishment not to apply the “connection with” test with “uncritical literalism.” Travelers, 514 U.S. at 656. The 18 HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC. negligent misrepresentation claim in Depot certainly bore a “connection with” an ERISA plan in the most literal sense of those words. Indeed, the lawsuit centered on two ERISA entities disputing premiums charged for an ERISA plan. But the claim itself arose from representations made by the defendant to the plaintiffs during negotiations before a plan ever existed, so “no such relationship existed when the misrepresentations were made.” Id. at 667. The claim thus did not bear upon an ERISA relationship. We reach a similar conclusion here. To be sure, as in Depot, ERISA-covered actors are relevant to HAMOC’s claim. Aetna and WSP are ERISA-regulated entities, both of whom owe fiduciary duties to the patient who received surgery at La Peer. La Peer called Aetna to verify coverage under the patient’s ERISA-covered plan. So, under a literal application of the words “connection with,” HAMOC’s negligent misrepresentation claim is “connected with” an ERISA plan because La Peer has a relationship with three ERISA-covered entities: La Peer is “connected with” the patient, by way of the medical services provided; with Aetna, as La Peer placed a verification call to Aetna; and with WSP, by dint of the claim it submitted to WSP for medical services provided to the patient. But we are skeptical that such an application of the “connection with” test— which of course is not enunciated in the statute itself—would align with ERISA preemption case law. Cf. Travelers, 514 U.S. at 656. Rather, as in Depot, the pertinent question is not whether an ERISA-regulated relationship exists but whether the claim itself bears upon that relationship. It does not. Section 502(a) authorizes specific parties to sue and, correspondingly, subjects certain parties to liability. Section 502(a) authorizes participants and beneficiaries (here, the patient) to sue for lost benefits, thereby exposing plan  HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC. 19 administrators and fiduciaries (here, Aetna and WSP) to liability. Section 502(a), however, does not supply a cause of action to providers, indicating that the relationship between La Peer, a provider, and Aetna, a plan administrator, is not one that Congress intended to “comprehensively regulate[].” Castonguay, 984 F.2d at 1521. Unlike the relationship between plans, participants, beneficiaries, trustees, and fiduciaries, the relationship between La Peer, a medical service provider, and Aetna, a plan administrator, falls outside ERISA’s regulatory scope. See id. at 1521; Bafford, 994 F.3d at 1031–32; Paulsen, 559 F.3d at 1083. And the tort alleged, negligent misrepresentation, runs from a non-ERISA entity (La Peer) to ERISA entities (WSP and Aetna). See Paulsen, 559 F.3d at 1083. Further, the claim does not encroach upon an ERISA relationship, like that between Aetna and the patient beneficiary. HAMOC’s claim concerns only representations that Aetna made as a plan provider to a third-party physician. Blue Cross of Cal., 187 F.3d at 1054. Accordingly, the negligent misrepresentation claim does not “bear on an ERISA-regulated relationship.” Depot, 915 F.3d at 667 (citation modified). For that reason, as we discuss further in the course of the “reference to” analysis, see infra pp. 20–22, the negligent misrepresentation claim will not “result in a multiplicity of regulation, Congress’s chief concern in enacting the ERISA pre-emption statute.” Paulsen, 559 F.3d at 1083. Because HAMOC’s negligent misrepresentation claim does not focus on an ERISA- regulated relationship, the claim is not preempted under the “connection with” test. 20 HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC. B “A state-law claim has a ‘reference to’ an ERISA plan if it ‘is premised on the existence of an ERISA plan’ or if ‘the existence of the plan is essential to the claim’s survival.’” Depot, 915 F.3d at 665 (citation modified) (quoting Or. Teamster Emps. Tr. v. Hillsboro Garbage Disposal, Inc., 800 F.3d 1151, 1155–56 (9th Cir. 2015)). Congress intended ERISA’s preemption clause to “ensure that plans and plan sponsors would be subject to a uniform body of benefits law . . . to minimize the administrative and financial burden of complying with conflicting” state and federal laws. Ingersoll-Rand, 498 U.S. at 142. In line with that purpose, “reference to” preemption typically arises in two contexts. First, ERISA preempts state laws that directly regulate or condition a regulation on the existence of an employee benefit plan or a benefit under such a plan. State laws that impose obligations “by reference to [ERISA] covered programs must yield to ERISA.” District of Columbia v. Greater Wash. Bd. of Trade, 506 U.S. 125, 130–31 (1992); cf. WSB Elec., Inc. v. Curry, 88 F.3d 788, 792–94 (9th Cir. 1996). This category includes laws that “expressly refer[] to,” “solely appl[y] to,” or “single[] out . . . for different treatment” employee benefit plans covered by ERISA; an example is a state statute that prohibits collection agencies from garnishing funds held in ERISA-governed pension plans but does not provide similar protections to non-ERISA plans. Mackey v. Lanier Collection Agency & Serv., Inc., 486 U.S. 825, 829–30 (1988). Also in this category are statutes that “regulate[] a type of benefit of an ERISA plan” or require employers “to create a separate benefit plan”—for example, a statute that requires employers to modify employee benefit plans to provide employees with coverage for specific medical procedures. Aloha Airlines, Inc. v. Ahue,  HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC. 21 12 F.3d 1498, 1504–05 (9th Cir. 1993). Such statutes encroach upon ERISA’s “uniform regulatory regime over employee benefit plans.” Davila, 542 U.S. at 208. By contrast, ERISA does not preempt state statutes that “function[] irrespective of” or are “indifferent to . . . ERISA coverage.” Cal. Div. of Lab. Standards Enf’t, 519 U.S. at 328 (citation omitted). Second, ERISA preempts state common law claims where the alleged injury flows entirely from the denial of a benefit, the breach of a duty, or some other failure to comply with a requirement imposed by ERISA. Accordingly, we have held that the “reference to” prong preempts state law claims that operate as “alternative enforcement mechanisms” to § 502(a)’s comprehensive civil enforcement scheme, Dishman, 269 F.3d at 981 (citation omitted); that “challenge the administration of ERISA plan benefits,” Greany, 973 F.2d at 818; or that are “premised on the existence of an ERISA plan” such that the plan “is essential to the claim’s survival,” Depot, 915 F.3d at 665 (citation omitted). What all of this means is, unfortunately, fairly opaque. But for our purposes, this analysis asks us, in essence, to determine whether the claim at issue is the sort that a participant, beneficiary, or their assignee could have asserted as a § 502(a) benefits claim or is otherwise dependent on an ERISA-covered plan. 10 If not, then the state law claim can 10 The Fifth Circuit has characterized this inquiry as whether the state law claims “address areas of exclusive federal concern, such as the right to receive benefits under the terms of an ERISA plan” and “directly affect the relationship among the traditional ERISA entities—the employer, the plan and its fiduciaries, and the participants and beneficiaries.” Mem’l Hosp. Sys. v. Northbrook Life Ins. Co., 904 F.2d 236, 245 (5th Cir. 1990). 22 HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC. stand alone without “reference to” an ERISA plan and is not preempted, because it seeks to remedy an injury to a third- party, not to a beneficiary or the covered plan. See The Meadows, 47 F.3d at 1010 (“ERISA does not preempt a third-party provider’s independent state law claims against a plan precisely because those claims do not ‘relate to’ the administration of an ERISA plan.”); see also Mem’l Hosp. Sys. v. Northbrook Life Ins. Co., 904 F.2d 236, 244–48 (5th Cir. 1990) (declining to extend ERISA preemption “to encompass third-party providers” asserting state law misrepresentation claims). We now address whether HAMOC’s negligent misrepresentation claim has a “reference to” an ERISA plan. We do so by looking closely at cases that have applied the “reference to” test under facts analogous to those presented here. Many common themes run through these cases. Important among them is the observation that in almost every case, a literal or strict application of the words “reference to” would have supported preemption. Also, in most instances, the “reference to” test acted as a constraint upon, rather than an expansion of, ERISA’s preemption clause. The Meadows v. Employers Health Insurance applied the “reference to” prong of ERISA preemption to a negligent misrepresentation claim. 47 F.3d at 1010. This case involves the same state law tort. Also like this case, The Meadows involved a healthcare provider’s (The Meadows) misrepresentation claim against an insurer (Employers Health) arising from statements the insurer made on a verification call. Id. at 1007.  HEALTHCARE ALLY MGMT. OF CA, LLC V. WSP USA, INC. 23 In early 1990, The Meadows placed calls to Employers Health to determine whether two of its patients were eligible for coverage. Employers Health confirmed the patients’ coverage on those calls and sent letters to The Meadows, similarly confirming coverage. Id. at 1007–08. As it turned out, the patients had lost coverage the year before. When The Meadows sought payment for the medical services it provided, the insurer refused payment, pointing out that, “[d]espite [Employers Health’s] oral and written representations of coverage,” the patients were not insured at the relevant time. Id. at 1008. The Meadows brought three state law causes of