In Roberts v. United Healthcare Services, Inc., ___ Cal.App.4th ___ (Aug. 4, 2016), the Court of Appeal (Second Appellate District, Division Two) held that UCL, FAL, and other claims brought on behalf of a putative class of members of a health care plan governed by the federal Medicare Advantage program (a Part C plan) were expressly preempted by the Medicare Act. Slip op. at 7-16.
With express preemption clauses, Congress’s intent to preempt is clear; our job is reduced to “‘“‘identify[ing] the domain expressly pre-empted.’”’” (Quesada, supra, 62 Cal.4th at p. 308, quoting Brown v. Mortensen (2011) 51 Cal.4th 1052, 1062.) The “best evidence concerning th[at] breadth” is “the statutory text” itself. (Quesada, at p. 308.) Here, the plain language of section 1395w-26(b)(3) plainly spells out Congress’s intent that the standards governing Medicare Advantage plans will displace “any State law or regulation” except for State laws regarding licensing or plan solvency. (Italics added.) Because the Secretary has promulgated standards governing the content of a Medicare Advantage plan’s marketing materials (42 C.F.R. §§ 422.2260-422.2276) as well as the adequacy of its network (42 C.F.R. §§ 422.100 & 422.112), those standards fall within the ambit of the preemption clause. Because plaintiff’s claims for violation of the unfair competition law, for unjust enrichment and for financial elder abuse do not deal with either of the preemption clause’s exceptions for licensing or plan solvency, they are preempted “with respect to [United Healthcare’s] plan.”
Slip op. at 9.