The company, Access Mediquip (“Access”), procures medical devices to be used during surgeries by health care providers.  Access first contacts insurance companies to ensure that its medical devices are covered prior to procurement.  Access had received prior authorization for a medical device from UnitedHealthcare; however, UnitedHealthcare later denied the reimbursement claim from Access by stating it would only cover such devices when billed by surgical facilities.  The U.S. District Court for the Southern District of Texas found that ERISA preempted Access’ state law claims seeking reimbursement from UnitedHealthcare.  However, on appeal, the U.S. Court of Appeals for the Fifth Circuit reversed the district court with respect to Access’ claims for negligent misrepresentation, promissory estoppel and violations of the Texas Insurance Code.  UnitedHealthcare then petitioned for a rehearing en banc, arguing that the Fifth Circuit’s decision was inconsistent with its prior opinions.  On the rehearing en banc, the Fifth Circuit reinstated its opinion and overruled, to the extent inconsistent, the court’s prior opinions in Cypress Fairbanks Med. Ctr., Inc. v. Pan-American Life Ins. Co., 110 F.3d 280 (5th Cir. 1997), Hermann Hosp. v. MEBA Med. & Benefits Plan, 845 F.2d 1286 (5th Cir. 1988), and Hermann Hosp. v. MEBA Med. & Benefits Plan, 959 F.2d 569 (5th Cir. 1992).  The end result is that Access can proceed with its claims in state court which were not preempted by ERISA.  Access Mediquip L.L.C. v. UnitedHealthcare Insurance Company, No. 10-20868 (5th Cir. Oct. 5, 2012).