Employee Retirement Income Security Act (ERISA) & common-law breach-of-fiduciary-duty claims; Limitations period; 29 USC § 1113; MCL 600.5805(2); Medicare-Like Rate (MLR); 42 CFR §§ 136.30–136.32; Whether plaintiff had “actual knowledge” within the limitations period that it had not received the MLR; Intel Corp Inv Policy Comm v Sulyma; Wright v Heyne; Michigan Health Care False Claims Act (HCFCA) claim; Whether the MLR regulations apply to third-party administrators (TPAs) rather than just Medicare-accepting hospitals; Motion for leave to amend the complaint a second time; Blue Cross Blue Shield of Michigan (BCBSM)

[This appeal was from the ED-MI.] The court held that because plaintiff-Grand Traverse Band of Ottawa and Chippewa Indians (the Tribe) had “actual knowledge” in 2009 that it was not receiving the MLR to which it was entitled under Medicare regulations, its 2014 ERISA and common-law claims for breach of fiduciary duty were time-barred. The Tribe’s HCFCA claim failed on the merits where the Tribe could not show that the MLR regulations apply to TPAs such as defendant-BCBSM. BCBSM was the administrator of the Tribe’s employee and member healthcare benefits Plan. After a third-party audit, the Tribe claimed that BCBCM “had been overpaying on claims eligible for MLR” and that the discount it was receiving under its claims processing agreement with BCBSM (the FCPA) was “nowhere near the amount that would be payable under the federal regulations.” It argued that this constituted a breach of fiduciary duty. On appeal, the court first affirmed the district court’s dismissal of the ERISA and common-law breach-of-fiduciary-duty claims as time-barred. As to the ERISA claim, the three-year limitations period applied where the Tribe had “actual knowledge” in 2009 “of the relevant facts supporting its ERISA breach-of-fiduciary-duty claim—that is, Blue Cross’s ‘failure to take advantage of MLR discounts available to’ the Tribe.” Thus, it had to bring its claim by 2012, but it did not sue until 2014. As to the state law claim, a three-year limitations period also applied, and accrual was triggered “under Michigan law just as under federal law.” The court rejected the Tribe’s fraudulent-concealment argument, Next, the Tribe argued that the district court misinterpreted its HCFCA claim and that it was not contending that BCBSM submitted claims that were more than the MLR but was instead alleging that it had “misrepresented that its FCPA discount approximated MLR.” But the court agreed with the district court that the Tribe could not change its theory of liability at summary disposition in this manner. Looking at the merits of the claim as pleaded, the court held that the HCFCA claim failed as a matter of law. The central issue was a legal one – whether the MLR regulations apply to TPAs like BCBSM rather than just to hospitals that accept Medicare. “The district court correctly concluded that the plain language of § 136.30 unambiguously limits the regulations’ scope to Medicare-participating hospitals, which are the only entities required to accept MLR as payment for qualifying care.” The court also found that the district court did not err in denying the Tribe leave to amend its complaint a second time. Affirmed.