be disclosed is not unlimited. Id., 107 F.3d at 144. Weiss has failed to allege facts or case authority establishing that the information she seeks concerning her physician's compensation package is necessary to "reasonably apprise" her of any current or future "rights or obligations under the Plan," nor has she identified any specific circumstances that could result in her disqualification from the Plan, or her ineligibility for, or denial or loss of, any benefits, rights or remedies provided by the Plan. Accordingly, the information she seeks does not fall within ERISA's express disclosure requirements.
As noted above, Weiss also purports to find an obligation for CIGNA to disclose the nature of its physician compensation arrangements in ERISA's general fiduciary obligations of loyalty and prudence, ERISA § 404, 29 U.S.C. § 1104. Plaintiff's argument is unavailing. As a starting point, the general language of a statute "will not be held to apply to a matter specifically dealt with in another part of the same enactment," Clifford F. MacEvoy Co. v. United States, 322 U.S. 102, 107, 64 S. Ct. 890, 894, 88 L. Ed. 1163 (1944), particularly in the case of "a reticulated statute such as ERISA." Bigger v. American Commercial Lines, 862 F.2d 1341, 1344 (8th Cir. 1988). Had Congress seen fit to require the affirmative disclosure of physician compensation arrangements, it could certainly have done so in ERISA §§ 101-111. The general fiduciary obligations set forth in ERISA § 404 do not refer to the disclosure of information to Plan participants, and it would be "inappropriate to infer an unlimited disclosure obligation on the basis of general provisions that say nothing" about such duties. Board of Trustees of the CWA/ITU, 107 F.3d at 147 (citing Faircloth v. Lundy Packing Co., 91 F.3d 648, 657 (4th Cir. 1996)); see also Curtis Wright-Corp. v. Schoonejongen, 514 U.S. 73, 131 L. Ed. 2d 94, 115 S. Ct. 1223, 514 U.S. 73, 115 S. Ct. 1223, 1229-31, 131 L. Ed. 2d 94 (1995).
To the extent that the duties of an ERISA fiduciary do go beyond the bounds of express statutory requirements, see Varity, 116 S. Ct. at 1073-74, the expansion sought by plaintiff in this case is not supported by the facts alleged or by legal precedent. A fiduciary's duty under ERISA includes the obligation to neither deceive nor mislead plan participants or beneficiaries about material facts; i.e., not to lie to them. See Varity, 116 S. Ct. at 1074; Pocchia v. Nynex Corp., 81 F.3d 275, 278-79 (2d Cir. 1996). That duty has not been extended in this Circuit to require ERISA fiduciaries "to disclose truthful information on their own initiative." Id.; see Pocchia, 12 F.3d 273 at 278.
Plaintiff relies on the decisions in two other Circuits in Eddy v. Colonial Life Ins. Co. of America, 287 U.S. App. D.C. 76, 919 F.2d 747 (D.C. Cir. 1990), and Bixler v. Cent. Pa. Teamsters Health-Welfare Fund, 12 F.3d 1292 (3rd Cir. 1993), for support. In both Eddy and Bixler, however, the fiduciary did not merely fail to disclose information, but in fact provided incorrect or misleading information in response to a specific inquiry, and the resulting confusion resulted in an actual injury or denial of benefits. See Eddy, 919 F.2d at 749-50; Bixler, 12 F.3d at 1300. Accordingly, any disclosure duty defined in those decisions arose in the "limited context . . . where confusion has been created on the part of the beneficiary by prior actions of the fiduciary." Pocchia, 81 F.3d at 278. No such duty exists where, as here, no "predicament" has been presented to CIGNA by any plaintiff or putative class member, no inaccurate information has been communicated by CIGNA in response to a specific inquiry, and no actual or threatened injury or denial of benefits has been identified by the plaintiff as a result of CIGNA's nondisclosure.
Moreover, even under dicta contained in Eddy and Bixler CIGNA would have no duty to disclose the nature of its compensation agreements with its physicians, because Weiss has not shown that such information affects "circumstances that threaten interests relevant to the relationship" or that it contains "material facts . . . which [she] needs to know for [her] protection in dealing with a third person." Eddy, 919 F.2d at 750. Nor has it been shown that CIGNA's silence regarding its physician compensation agreements "might be harmful" to Plan participants. Bixler, 12 F.3d at 1300. Indeed, as discussed earlier, Weiss's contention that physicians will compromise their ethical responsibilities in response to financial incentives -- while possibly a valid legislative concern -- is too speculative to support a legal claim pursuant to ERISA.
For the foregoing reasons, ERISA imposes no affirmative obligation upon CIGNA to inform Plan participants about its financial arrangements with participating physicians, and plaintiff's fiduciary duty claim arising from CIGNA's alleged failure to disclose such arrangements is accordingly dismissed.
D. Weiss's Claim Regarding CIGNA's Alleged Breach of the Terms of the Plan
Defendants' motion to dismiss is GRANTED with regard to plaintiff's claim that defendants have breached the express or implied terms of the Plan.
That claim rests on two allegations: first, that CIGNA makes medical determinations based on actuarial guidelines rather than on the basis of "generally accepted medical standards," as required by the Plan; and second, that CIGNA requires doctors to obtain pre-authorization for "Outpatient Services," a requirement which is alleged to be absent from the terms of the Plan.
Neither of Weiss's allegations states a claim on which relief can be granted. The Plan clearly provides that it is CIGNA's responsibility to determine what treatment options are "Medically Necessary," (see Group Service Agreement at 6, 25), and there is no express statement in the Plan of the materials which CIGNA must use to make such determinations. Even accepting as true Weiss's allegation that CIGNA uses what are known as the Milliman & Robertson Guidelines when deciding the length of hospital stays, (Pl. Mem. at 24), and that such guidelines are "highly controversial," (id.), Weiss has not alleged that CIGNA relies on such guidelines to the exclusion of other factors, nor has she alleged that any of CIGNA's determinations of "Medical Necessity" have actually departed from "generally accepted medical standards," either in her own case or in the case of any other putative class member. Instead, her claim challenges the appropriateness of any or all such determinations, a speculative allegation untethered to the terms of the Plan.
Similarly, even taking as true Weiss's contention that CIGNA requires physicians to obtain pre-authorizations for "Outpatient Services," Weiss has failed to show why such a practice would violate any express or implied terms of the Plan. The GSA does not prohibit pre-authorizations in general and indeed it specifically requires them for many types of services, including certain outpatient services. Plaintiff's reading of the GSA -- which would convert the absence of an explicit requirement of pre-authorization into a prohibition of the same -- is insufficient to establish any breach of the terms of the Plan. Moreover, Weiss has failed to explain how such an alleged violation, if true, has harmed or ever could harm her or any other putative class member. For all of the foregoing reasons, plaintiff's claim that CIGNA has violated the terms of the Plan is dismissed.
For the reasons set forth above, defendants' motion is GRANTED in PART and DENIED in PART. Accordingly, the complaint is hereby dismissed, with the exception of plaintiff's claim pursuant to ERISA § 404(a)(1), 29 U.S.C. § 1104(a)(1), for breach of fiduciary duty arising from CIGNA's alleged "gag order" policy.
Dated: New York, New York
July 22, 1997
Sidney H. Stein, U.S.D.J.