Nail v. Government Employees Health Association, Inc.

Filing 88

ORDER granting 62 Motion for summary judgment. Signed by Judge Roy B. Dalton, Jr. on 3/11/2019. (ESG)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
DANNY NAIL,
Plaintiff,
v.

Case No. 6:17-cv-1462-Orl-37GJK

U.S. OFFICE OF PERSONNEL
MANAGEMENT,
Defendant.
_____________________________________
ORDER
Before the Court is Defendant U.S. Office of Personnel Management’s (“OPM”)
Motion for Summary Judgment. (Doc. 62 (“Motion”).) Plaintiff Danny Nail (“Nail”)
responded (Doc. 65), and OPM replied (Doc. 68). On review, the Motion is due to be
granted.
I.

BACKGROUND1

This case arises from an insurance company’s denial of coverage for a medical
procedure. (See Doc. 59 (“Operative Complaint”).) Nail, a retired NASA engineer, was
diagnosed with a prostate tumor and localized prostate cancer and sought insurance
coverage for prostate ablation. (Doc. 59, ¶ 11; Doc. 59-3, p. 1; Doc. 59-7, p. 4.) At all
relevant times, Nail was enrolled in the Federal Employee Health Benefits Program

The record in this case is undisputed. Nail points out that OPM’s record omits
the cover sheet to a fax sent to GEHA (see Doc. 65, p. 10; see also Doc. 62-1, pp. 90–96), but
the parties do not challenge any of the correspondence or other relevant documents.
1

(“FEHB Program”) and had a health insurance policy with Government Employees
Health Association (“GEHA”). (Doc. 59, ¶¶ 1, 4, 7.) OPM is the government agency that
administers claims under the Federal Employee Health Benefits Act (“FEHBA”), which
includes claims covered under the GEHA plan. See 5 U.S.C. §§ 8901–14. GEHA denied
coverage for the procedure. (See Docs. 59-6; 59-11.) So Nail appealed to OPM, who also
denied coverage. (See Docs. 59-2; 59-13.) At issue now is OPM’s decision to deny
coverage. (See Docs. 62, 65, 68.) The Court outlines the FEHB Program and GEHA policy
before turning to Nail’s coverage dispute.
A.

Federal Employee Health Benefits Program

Under the Federal Employees Health Benefit Act (“FEHBA”) Congress delegated
authority to OPM to interpret whether an individual’s case is covered by the contracted
carrier and to decide the benefits and exclusions of the coverage as OPM “considers
necessary or desirable.” See 5 U.S.C. § 8902. The FEHBA also requires that enrollees be
provided with a plan brochure outlining the plan’s “(1) services or benefits, including
maximums, limitations, and exclusions; . . . (2) procedure for obtaining benefits; and (3)
principal provisions of the plan affecting the enrollee.” 5 U.S.C. § 8907(b).
Congress mandated that every FEHBA contract require the FEHBA carrier to
provide coverage for healthcare services if OPM determines that a covered individual
may have coverage under the contract. 5 U.S.C. § 8902(j). OPM established an
administrative procedure for resolving disputed claims for benefits between a carrier and
a covered individual. See 5 C.F.R. § 890.105. To dispute a denial of coverage, the covered

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individual may first submit a request for reconsideration to the carrier. 5 C.F.R. §
890.105(a). If the denial is affirmed, the claimant may then appeal the decision to OPM.
Id. If OPM denies coverage, then the claimant may appeal that decision to a federal
district court. Id. That action must be brought against OPM, not the carrier, and the
requested relief “shall be limited to a court order directing OPM to require the carrier to
pay the amount of benefits in dispute.” 5 C.F.R. § 890.107.
B.

Nail’s Insurance Policy

GEHA’s plan brochure explains how to obtain coverage, the covered benefits, and
the disputed claims process. (Doc. 59-1 (“Plan Brochure”).) Relevant here, Section 5(b)
provides coverage for surgical procedures and, specifically, the “[r]emoval of tumors.”
(Id. at 48.) But the Section 5(b) benefits are “subject to the definitions, limitations, and
exclusions in this brochure and are payable only when [GEHA] determine[s] they are
medically necessary.” (Id.) The Plan Brochure defines medically necessary as:
Services, drugs, supplies or equipment provided by a hospital
or covered provider of the health care services that the Plan
determines:
• Are appropriate to diagnose or treat the patient’s
condition, illness or injury;
• Are consistent with generally accepted standards of
medical practice in the United States.
- Generally accepted standards of medical
practice are based on credible scientific
evidence published in peer-reviewed
medical literature generally recognized by
the relevant medical community, national
physician
specialty
society
recommendations and the views of medical
practitioners practicing in relevant clinical

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•
•
•

areas, and any other relevant factors;
Are not primarily for the personal comfort or
convenience of the patient, the family, or the provider;
Are not a part of or associated with the scholastic
education or vocational training of the patient; or
In the case of impatient care, cannot be provided safely
on an outpatient basis.

The fact that a covered provider has prescribed,
recommended, or approved a service, supply, drug or
equipment does not, in itself, make it medically necessary.
(Id. at 107.) And it provides that “[e]xperimental or investigational procedures,
treatments, drugs or devices” will not be covered. (Id. at 89.) The Plan Brochure,
expounds:
A medical treatment or procedure, or a drug, device, of
biological product is experimental or investigational if: . . .
reliable evidence shows that the consensus among experts
regarding the drug, device, or biological product or medical
treatment or procedure is that further studies or clinical trials
are necessary to determine its maximum tolerated dose, its
toxicity, its safety, its efficacy, or its efficacy as compared with
the standard means of treatment or diagnosis.
(Id. at 106.) Further, it provides that certain procedures require prior approval or preauthorization. (Id. at 24.)
C.

Nail’s Coverage Dispute

After receiving his cancer diagnosis, Nail engaged in independent research and
weighed his treatment options. (See Doc. 59-3; see also Docs. 59-7, 59-9, 59-13.) Nail
selected Sonablate High Intensity Focused Ultrasound (“HIFU”) prostate tissue ablation
to treat his prostate cancer. (See Doc. 59-3, pp. 1–2.) As required by the Plan Brochure,
Nail submitted a request for pre-authorization of coverage for his treatment to GEHA on

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February 4, 2015. (Id.) While the procedure is not explicitly covered, he explained in his
request he preferred HIFU treatment because “the specific condition of [his] prostate
cancer allows [him] to qualify for this less invasive procedure.” (Id. at 1.) With the request,
Nail attached: (1) a February 2, 2016 “Letter of Medical Necessity” from his treating
physician, Stephen M. Scionti, MD (“Dr. Scionti”); (2) billing information; and (3) the
Federal Drug Administration (“FDA”) letter approving HIFU. (Id. at 2–7.) The FDA
described HIFU as:
High intensity ultrasound system for prostate tissue
ablation. A high intensity ultrasound system for prostate
tissue ablation is a prescription device that transmits high
intensity therapeutic ultrasound (HITU) energy into the
prostate to thermally ablate a defined, targeted volume of
tissue, performed under imaging guidance. This classification
does not include devices that are intended for the treatment
of any specific prostate disease and does not include devices
that are intended to ablate non-prostatic tissues/organs.
(Id. at 4.)
After receiving Nail’s request for pre-authorization of coverage, GEHA requested
additional information. (See Doc. 59-4.) On March 25, 2016, Nail sent GEHA additional
medical records and a letter advising that he was scheduled to undergo the HIFU
procedure on March 29, 2016. (Id. at 1.) He explained that the procedure “will ablate the
cancerous tumor only and spare the prostate using the FDA approved Sonablate system.”
(Id.) As part of its coverage evaluation process, GEHA sought and received a report from
a board-certified independent medical reviewer at the Medical Review Institute of
America, Inc. (“MRIoA”). (Doc. 59-5, p. 6.) Evaluating whether the Sonablate HIFU

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procedure is medically necessary and appropriate for Nail’s treatment, the reviewer
concluded that the Sonablate HIFU procedure was not medically necessary and was
considered experimental or investigational to treat localized prostate cancer. (Id. at 5.)
With that, on March 30, 2016, GEHA informed Nail that coverage for his HIFU procedure
would be denied as not medically necessary under the Plan Brochure. (Doc. 59-6; see Doc.
59-1, p. 107.) GEHA advised that if Nail disagreed, he could submit additional
information within six months for reconsideration. (Doc. 59-6, p. 2.)
On May 5, 2016, Nail submitted a request for reconsideration, asserting that the
HIFU procedure was medically necessary and particularly effective for him because he
had aggressive localized prostate cancer. (Doc. 59-7, pp. 1, 4.) In support, he included
additional evidence from doctors and studies outside the United States supporting the
HIFU treatment. (Id. at 2–3.) On May 11, 2016, GEHA acknowledged receipt of Nail’s
latest letter and informally told him by phone that the HIFU treatment was considered
experimental and would not be covered. (Doc. 59-8.)
Persisting, Nail submitted another letter to GEHA on May 12, 2016, explaining that
“[t]he FDA approved HIFU for the ablation of prostate tissue last year, and even though
the ablation of prostate tissue can be done for reasons other than cancer, the most
common use of HIFU prostate treatment is for cancer.” (Doc. 59-9, p. 2.) In reviewing
Nail’s reconsideration request, GEHA obtained another independent medical review
from MRIoA, this time from David Masiello, MD (“Dr. Masiello”), an oncologist. (Doc.
59-10.) Dr. Masiello concluded that the Sonablate HIFU treatment “is not medically

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necessary and is not appropriate” and “is experimental or investigational” to treat
prostate cancer. (Id. at 2.)
On May 23, 2016, GEHA formally informed Nail of the denial of his preauthorization request. (Doc. 59-11.) Specifically, GEHA explained that its medical
director and two outside medical consultants concluded that his Sonablate HIFU
treatment “would not be considered medically necessary” and was experimental because
it was not supported by scientific evidence and professional guidelines. (Id. at 2.) GEHA
advised Nail that if he disagreed with the determination, he could seek review of the
claim by OPM within ninety days. (Id.)
Dissatisfied with GEHA’s conclusion, Nail appealed to OPM on June 23, 2016.
(Doc. 59-13.) Nail asserted that Section 5(b) of the Plan Brochure explicitly provides
coverage for “operative procedures and removal of tumors.” (Id. at 1.) Nail also recounted
the events and explained that his thorough study of potential treatment options revealed
that at least some medical experts believe sufficient scientific evidence supports HIFU for
cancer treatment. (Id. at 4–6.) And on June 28, 2016, Nail provided OPM with evidence
that his HIFU treatment succeeded. (Doc. 59-15.)
Following review of his appeal and the administrative record,2 OPM informed
Nail it could not direct GEHA “to authorize benefits” because his treatment was not
covered. (Doc. 59-2, p. 1.) OPM explained that Nail’s medical records were forwarded to

OPM received the administrative record for its consideration when evaluating
Nail’s claim. (See Doc. 62-1.) The record contains a small portion of the Plan Brochure,
including Section 5(a) not 5(b). (See id. at 63–71.)
2

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an independent physician consultant, board-certified in Medical Oncology, who
reported:
The consensus amongst experts is that this treatment requires
additional investigation, therefore it is considered to be
experimental/investigational under the plan’s definition. The
authors of UpToDate state: “. . . HIFU has not been compared
with standard treatment approaches in randomized trials, nor
is it included in guidelines for the initial management of men
with prostate cancer . . . “ The National Comprehensive
Cancer Network Guidelines state “ . . . Other emerging local
therapies, such as high intensity focused ultrasound (HIFU)
. . . also warrant further study . . .”
(Id.) OPM concluded that because the independent physician found that HIFU required
“further study,” the procedure was experimental or investigational under the Plan
Brochure. (Id.) OPM advised Nail that if he wished to pursue this matter further, he could
initiate litigation against OPM in federal court. (Id. at 2).
D.

Instant Action

On July 7, 2017, Nail initiated the instant action in state court, seeking review of its
denial of coverage. (See Doc. 2.) GEHA removed the action here under the FEHBA. (Doc.
1, ¶ 15.) Following multiple dismissals (see Docs. 29, 31, 32, 58), Nail filed the Operative
Complaint against OPM, requesting the Court direct OPM to require GEHA to pay the
disputed coverage benefits under 5 C.F.R. § 890.107(c) (Doc. 59, ¶¶ 56–68). Now, OPM
moves for summary judgment. (Doc. 62.) Briefing complete (Docs. 65, 68), the matter is
ripe.
II.

LEGAL STANDARDS

Summary judgment is appropriate only “if the movant shows that there is no

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genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On issues
for which the movant would bear the burden of proof it must affirmatively show the
absence of a genuine issue of material fact and support its motion with credible evidence
demonstrating that no reasonable fact finder could find for the nonmoving party on the
essential elements of its claims. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115
(11th Cir. 1993) (citing United States v. Four Parcels of Real Prop. in Green & Tuscaloosa Ctys.,
941 F.2d 1428, 1438 (11th Cir. 1991)).
On issues for which the nonmovant would bear the burden of proof the movant
has two options: (1) it may simply point out an absence of evidence to support the
nonmoving party’s case; or (2) it may provide “affirmative evidence demonstrating that
the nonmoving party will be unable to prove its case at trial.” Four Parcels,
941 F.2d at 1438 (citing Celotex Corp., 477 U.S. at 325). “The burden then shifts to the
nonmoving party, who must go beyond the pleadings and present affirmative evidence
to show that a genuine issue of material fact exists.” Porter v. Ray, 461 F.3d 1315, 1320
(11th Cir. 2006) (citing Fitzpatrick, 2 F.3d at 1115–17).
“A factual dispute is genuine ‘if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.’” Four Parcels, 941 F.2d at 1437 (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A court must view the evidence
and all reasonable inferences drawn from the evidence in the light most favorable to the
nonmovant, Battle v. Bd. of Regents, 468 F.3d 755, 759 (11th Cir. 2006), so that “when

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conflicts arise between the facts evidenced by the parties, [the court] credit[s] the
nonmoving party’s version,” Evans v. Stephens, 407 F.3d 1272, 1278 (11th Cir. 2005). Even
so, “[the] court need not permit a case to go to a jury . . . when the inferences that are
drawn from the evidence, and upon which the nonmovant relies, are ‘implausible.’” Mize
v. Jefferson City Bd. of Educ., 93 F.3d 739, 743 (11th Cir. 1996) (quoting Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 592-94 (1986)). “[M]ere conclusions and
unsupported factual allegations are legally insufficient to defeat a summary judgment
motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005).
III.

ANALYSIS

OPM argues that summary judgment is warranted because its final decision
denying coverage was based on careful consideration of the evidence and it articulated a
rational connection between the facts and the determination. (Doc. 62, p. 2.) Nail opposes,
contending that OPM never properly analyzed his request for coverage and OPM’s
decision should be set aside as arbitrary and capricious and an abuse of discretion. (Doc.
65, p. 1.) The Court agrees with OPM.
A.

Arbitrary and Capricious Standard of Review

A district court reviews OPM’s actions taken under the FEHBA under the
Administrative Procedure Act (“APA”). 5 U.S.C. §§ 701, 706; see also Tackitt v. Prudential
Ins. Co. of Am., 758 F.2d 1572, 1575 (11th Cir. 1985). “Under the APA, an agency action,
finding, or conclusion can be set aside where it is ‘arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law’ or is ‘unsupported by substantial

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evidence.’” Mendoza v. Sec’y Dep’t of Homeland Sec., 851 F.3d 1348, 1352 (quoting 5 U.S.C.
§ 706(2)(A), (E)). The arbitrary and capricious standard is “exceedingly deferential.”
Sierra Club v. Van Antwerp, 526 F.3d 1353, 1360 (11th Cir. 2008) (citation omitted). “[A]
reviewing court may not set aside an agency rule that is rational, based on consideration
of the relevant factors and within the scope of the authority delegated to the agency by
the statute.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S.
29, 42. (1983). So, “[t]he scope of review under the ‘arbitrary and capricious’ standard is
narrow and a court is not to substitute its judgment for that of the agency.” Id. at 43. But
the agency must review the relevant materials and satisfactorily explain its decision,
including a “rational connection between the facts found and the choice made.”
Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962). Courts must then “consider
whether the decision was based on a consideration of the relevant factors and whether
there has been clear error of judgment.” Bowman Transp. Inc. v. Arkansas-Best Freight Sys.,
419 U.S. 281, 281(1974) (citation omitted).
An action may be considered arbitrary and capricious where:
[T]he agency has relied on factors which Congress has not
intended it to consider, entirely failed to consider an
important aspect of the problem, offered an explanation for
its decision that runs counter to the evidence before the
agency, or is so implausible that it could not be ascribed to a
difference in view or the product of agency expertise.
Miccosukee Tribe of Indians of Fla. v. United States, 566 F.3d 1257, 1264 (11th Cir. 2009)
(quoting Alabama-Tombigbee Rivers Coal. v. Kempthorne, 477 F.3d 1250, 1254 (11th Cir.
2007)). The reviewing court “may not supply a reasoned basis for the agency’s action that

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the agency itself has not given,” but the court should “uphold a decision of less than ideal
clarity if the agency’s path may reasonably be discerned.” Motor Vehicle, 463 U.S. at 43
(first quoting SEC v. Chenery Corp., 332 U.S. 194, 196 (1947); then quoting Bowman Transp.,
419 U.S. at 286).
B.

Consideration of Relevant Factors and Evidence

First, the Court considers whether OPM considered the relevant factors and
evidence in reaching its coverage decision. In evaluating Nail’s coverage claim, OPM
considered: (1) the Plan Brochure language; (2) the correspondence between Nail and
GEHA; (3) Nail’s medical records; (4) the opinions of GEHA’s independent medical
reviewers; and (5) the opinion of OPM’s independent medical reviewer. (See Docs. 59-2;
59-14.) OPM contends that its decision was based on a careful consideration of the
evidence and its determination was not arbitrary and capricious. (Doc. 62, pp. 10–15.) In
opposition, Nail argues that OPM failed to consider a critical aspect of his claim by failing
to consider his request for coverage under Section 5(b) of the Plan Brochure and ignoring
evidence that ran contrary to OPM’s ultimate coverage decision. (Doc. 65, pp. 1, 12–15.)
On review, the Court finds that OPM considered the pertinent factors and evidence.
Nail argues that OPM’s decision should be set aside as arbitrary and capricious
because the plain language of Section 5(b) of the Plan Brochure supports coverage for his
tumor removal procedure. (Doc. 65, p .1; see also Doc. 59-1.) But Nail’s reading of the Plan
Brochure is incorrect.3 Section 5(b) of the Plan Brochure identifies tumor removal as a

3

To the extent Nail argues that the Plan Brochure language is ambiguous, the

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covered benefit, but limits those benefits “subject to the definitions, limitations, and
exclusions in this brochure.” (Doc. 59-1, p. 48.) OPM did not confine its review of Nail’s
coverage claim to Section 5(b), but rather, properly considered whether the requested
procedure was subject to any exclusions or limitations described in the Plan Brochure. 4
Specifically, OPM considered whether the HIFU tumor ablation procedure was excluded
from coverage because it was not medically necessary or was experimental. (See Doc. 592; see also Doc. 59-1, pp. 89, 106–107; Doc. 59-14, p. 68.)
Nail’s correspondence reveals that he sought a Sonablate HIFU tumor ablation to
treat his prostate cancer. (See, e.g., Doc. 59-3, pp. 1–2.) Nail acknowledged that other
cancer treatments, such as radiation therapy, have similar results, but maintained that the
HIFU procedure was medically necessary for him. (Doc. 59-7, p. 1.) Further, Nail
conceded that “some medical experts are divided on the use of HIFU for prostate cancer.”
(Doc. 59-9, p. 2.) GEHA obtained two independent medical opinions examining whether

Court is unpersuaded. (Doc. 62, pp. 13–15.) Further, even assuming Nail is correct, the
language that he contends is ambiguous was not relied upon by OPM in reaching its
decision—OPM relied on the definition of an experimental treatment or procedure not
an experimental drug or device. (Compare Doc. 59-2, with Doc. 59-1, p. 106.) The former
does not include the language Nail contends is improper. (See Doc. 59-1, pp. 106–107.)
Thus, Nail’s argument fails.
4 The Court is similarly unpersuaded by Nail’s argument that OPM failed to
consider a critical aspect of his claim because it did not provide Section 5(b) of the Plan
Brochure to anyone analyzing his claim. (Doc. 65, pp. 1, 9–11.) Although Nail correctly
points out that OPM’s administrative record contains only Section 5(a), and not 5(b), of
the Plan Brochure, that is a harmless error because both sections contain the same limiting
language. (Compare Doc. 59-1, p. 33, with Doc. 59-1, pp. 48; see also Doc. 59-14, pp. 62–70.)
So OPM was required to consider the limitations regardless of whether the procedure fell
under Section 5(a) or 5(b).

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Nail’s treatment was medically necessary or experimental to treat prostate cancer. (See
Docs. 59-5, 59-10.) When both reviewers found that the treatment was not medically
necessary and was experimental, GEHA denied Nail coverage. (See Docs. 59-6, 59-11.)
With that administrative record, OPM obtained its own independent review from a
board-certified oncologist, who also concluded that the HIFU treatment for prostate
cancer required further testing and should be considered experimental based on the Plan
Brochure’s definitions.5 (Doc. 59-2.)
Yet, despite that record, Nail contends that OPM’s decision should be set aside
because it did not consider the contrary literature and evidence he provided. (Doc. 62,
pp. 8–9.) That argument fails. To support his request for coverage approval, Nail offered
a Letter of Medical Necessity from Dr. Scionti, who stated that he had performed the
HIFU treatment to selected patients with localized prostate cancer for the past ten years.
(Doc. 59-3, p. 2.) Further, Nail cited various studies and literature that found HIFU an
effective treatment for prostate cancer. (Doc. 59-7, pp. 2–4; Doc. 59-9, pp. 1–2; Doc. 59-13,
pp. 4–7.) But even though Nail provided GEHA and OPM with materials that support
finding the HIFU procedure medically necessary and not experimental to treat prostate
cancer, he failed to demonstrate that OPM acted in an arbitrary or capricious manner
when it relied on the evidence in the record that justified finding the HIFU procedure
experimental. Contrary to Nail’s contention, it cannot be said that OPM “entirely failed

To the extent Nail argues that a conflict of interest exists between GEHA and
OPM and their respective independent medical reviewers, the Court finds no evidence
in the record to support that assertion. (See Doc. 59, ¶¶ 22, 26, 36; see also Doc. 62, p. 17.)
5

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to consider” a part of his claim merely because OPM based its decision on other credible
and persuasive evidence.6 (See Doc. 62, pp. 4–5.) So the Court finds that OPM’s decision
to deny Nail’s coverage claim as experimental was based on a proper consideration of
the relevant factors and record evidence.
C.

Rational Connection

Next, the Court considers whether there was a rational connection between the
facts and OPM’s coverage decision. OPM contends that it articulated a rational
connection between the record evidence and its coverage decision. (Doc. 62, pp. 16–17).
OPM explained in its denial letter it could not direct GEHA to authorize benefits because
the HIFU procedure was considered experimental to treat prostate cancer. (Doc. 59-2.)
In reaching its conclusion, OPM relied on the opinion of its independent medical
reviewer and the Plan Brochure’s definition of an experimental procedure. (Id.; see also
Doc. 59-1, p. 106.) Although, Nail quarrels with OPM’s alleged failure to consider Section
5(b) of the Plan Brochure, OPM’s decision was explicitly based on the Plan Brochure’s
stated exclusions. See Muratore v. U.S. Office of Pers. Mgmt., 222 F.3d 918, 924 (11th Cir.
2000) (finding that “OPM did not act arbitrarily and capriciously when it determined that

See also Campbell v. U.S. Office of Pers. Mgmt., 384 F. Supp. 2d 951, 957 (W.D. Va.
2004) (concluding that even though OPM reached a conclusion opposite Plaintiff’s
doctors’ recommendation, the decision was not arbitrary and capricious because it was
“based on a thorough review of [Plaintiff]’s file and the recommendation of OPM’s own
medical consultant”); Pellicano v. Office of Pers. Mgmt., Ins. Operations, 8 F. Supp. 3d 618,
636 (M.D. Pa. 2014) (finding that OPM’s decision was not arbitrary and capricious even
though it was contrary to Plaintiff’s “second, plausible interpretation”).
6

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the specific provision for speech therapy in the medical benefits section, instead of the
open-ended mental conditions section, controls coverage for speech therapy”). Further,
the record is filled with evidence, including the assessment of several independent
medical reviewers, supporting the determination that the HIFU procedure is
experimental in the treatment of prostate cancer. (See, e.g., Doc. 59-2.) There is no evidence
that OPM ignored or irrationally construed any evidence. Rather, OPM offered a
reasonable interpretation of the Plan Brochure and its coverage decision was properly
based on the findings of its independent medical reviewer. (Doc. 59-2.)
With that, the Court finds OPM’s decision was rationally connected to the facts
and the Court must defer to OPM’s expertise. Tackitt, 758 F.2d at 1575. OPM is well-versed
in the Plan Brochure’s language and carefully considered the record evidence. The Court
will not substitute its judgment for that of OPM’s. See Motor Vehicle, 463 U.S. at 30. So the
Motion is due to be denied.
IV.

CONCLUSION

It is ORDERED AND ADJUDGED:
1.

Defendant U.S. Office of Personnel Management’s Motion for Summary
Judgment (Doc. 62) is GRANTED.

2.

The Clerk is DIRECTED to:
a.

Enter judgment for Defendant U.S. Office of Personnel Management
and against Plaintiff Danny Nail;

b.

Terminate any other pending motions and deadlines; and

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c.

Close the file.

DONE AND ORDERED in Chambers in Orlando, Florida, on March 11, 2019.

Copies:
Counsel of Record

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