Gordon v. Office of Personnel Management
Filing
35
MEMORANDUM OPINION (c/m to Plaintiff 11/5/10 sat). Signed by Chief Judge Deborah K. Chasanow on 11/5/10. (sat, Chambers)
Gordon v. Office of Personnel Management
Doc. 35
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND MICHAEL STEVEN GORDON v. OFFICE OF PERSONNEL MANAGEMENT : : : : : Civil Action No. DKC 08-3358
MEMORANDUM OPINION Presently pending and ready for review is Defendant's
motion for summary judgment.
(ECF No. 25).
The issues are
fully briefed and the court now rules pursuant to Local Rule 105.6, no hearing being deemed necessary. follow, Defendant's motion will be granted. I. Background Plaintiff Michael Steven Gordon initiated this action pro se on December 15, 2008, seeking to recover on a claim for health benefits from Defendant, the United States Office of For the reasons that
Personnel Management ("OPM"). enrollee in the Federal
(ECF No. 1). Health
Plaintiff is an Benefits Program
Employees'
("FEHBP") through his health insurance carrier, CareFirst Blue Cross Blue Shield ("CareFirst"). (ECF No. 25, Attach. 1, at 1).
In 1999 Plaintiff was diagnosed with myofascial pain syndrome by
Dockets.Justia.com
Dr. Bernard Filner. pain syndrome is
(Id. at 2)(citing AR 128, 131).1 a chronic musculoskeletal pain
Myofascial disorder
characterized by the presence of trigger points, decreased range of motion in affected muscle groups, weakness, and, on occasion, local autonomic disturbance such as localized perspiration. 20th Ed.,
(Id.)(citing p. 1419).
Taber's To
Cyclopedic pain
Medical
Dictionary, with this
treat
associated
syndrome,
Plaintiff received trigger point injections ("TPIs") from Dr. Filner beginning in 1999. From 1999 until 2004, CareFirst reimbursed Plaintiff's In for had
claims for the TPIs from Dr. Filner and associated costs. April 2004, TPIs CareFirst because began it to deny Plaintiff's the longer claims
regular become
determined and were
that no
treatments covered
maintenance
therapy
under
Plaintiff's policy because they were not "medically necessary". (Id. at 8)(citing AR 736-741). Plaintiff requested
reconsideration of CareFirst's denial of his claims for TPIs in 2004 and ultimately appealed CareFirst's decision to the OPM as prescribed in 5 C.F.R. § 809.105. independent medical review (Id. at 8-9). pursuant to 5 After an C.F.R.
§ 890.105(e)(2)(ii), OPM determined that the treatments in 2004 were medically necessary and issued a final decision overturning
1
Citations to AR refer to the OPM submitted to the court as ECF No. 26. 2
administrative
record,
CareFirst's denial and ordering CareFirst to pay Plaintiff for the treatments. CareFirst (Id. at 9-10). again denied Plaintiff's claims for TPIs from
January 6, 2005 to December 22, 2005 stating that they were not medically necessary. The CareFirst Benefit Plan for 2005 used
the following standard to assess medical necessity: We determine whether services, drugs, supplies, or equipment provided by a hospital or other covered provider are: 1. Appropriate to prevent, diagnose, or treat your condition, illness, or injury; 2. Consistent with standards of good medical practice in the United States; 3. Not primarily for the personal comfort or convenience of the patient, the family, or the provider; 4. Not part of or associated with scholastic education or vocational training of the patient; and 5. In the case of inpatient care, cannot be provided safely on an outpatient basis. The fact that one of our covered providers has prescribed, recommended, or approved a service or supply does not, in itself, make it medically necessary or covered under this Plan. (Id. at 10)(citing AR 114). CareFirst classified the TPI
treatments as "maintenance or palliative rehabilitative therapy" which is not covered under the Plan and not medically necessary. (Id. at 11)(citing AR 39). Plaintiff filed a request for reconsideration with
CareFirst, and CareFirst submitted the claims for review to the
3
Plan's
Medical
Director
and
a
Physician
Advisor.
(Id.
at 11)(citing AR 156, 193-194).
The reconsideration request was
denied by CareFirst based on the conclusions of the Physician Advisor. (Id. at 12)(citing AR 156-158, 163-164)).2 Plaintiff
appealed the denial of his reconsideration request to OPM in February 2006. (Id. at 13)(citing AR 172). OPM sent all the
medical records it received from Plaintiff and CareFirst's files for Plaintiff to an independent also medical concluded and reviewer. that were a AR the form The TPI of
independent treatments palliative 213-217).
medical were not
reviewer medically
necessary
rehabilitative The
therapy. medical
(Id.)(citing reviewer
177-211, however
independent
noted,
"without a new cervical spine MRI to compare to the 4/1/05 MRI, continuation necessary." issued a of the TPI could not be considered medically
(Id.)(citing AR 216). decision upholding
Following his review, OPM CareFirst's denial of the
final
claim on March 29, 2006. (Id.)(citing AR 218). In response to the medical reviewer's comment regarding the lack of recent MRIs, Plaintiff sent two letters to CareFirst
2
The Physician Advisor concluded that "[TPIs] are not appropriate to treat or prevent the condition, as they have been ongoing for 6 years on a weekly basis with no improvement." He further stated that "[t]hey are maintenance treatment, as they provided no sustained relief and required repeating on a consistently frequent basis." (AR 167). 4
questioning why an additional MRI had not been requested of him and stating that his April 2005 MRI could have been compared with his 2003 MRI. In addition, Plaintiff provided copies of (Id. at 14)(citing AR 220information if it back to the his
his MRIs for the prior six years. 221). OPM sent medical this additional to
independent
reviewer
see
would
alter
analysis, but the reviewer again concluded that the TPIs were not medically necessary. (Id.)(citing AR 229)). On September
26, 2006, OPM issued a new final decision, upholding CareFirst's denial of the claims. Plaintiff filed (Id. at 14)(citing AR 231-22)). his complaint challenging OPM's final
decision denying coverage on December 15, 2008.
(ECF No. 1).
In August 2009, the court granted Defendant's motion to remand the case for could further submit administrative the additional proceedings documentation so he that had
Plaintiff
provided to the court to OPM for consideration by an independent medical reviewer. OPM issued a new (ECF Nos. 14 and 15). final were decision medically finding On February 2, 2010, that the TPIs and the
associated
services
necessary
only
during
period from January 6 to February 3, 2005.
Any occipital nerve
blocks during 2005 were also deemed medically necessary, but the denial of the remainder of Plaintiff's claims, all TPIs after February 6, 2005, AR was upheld. Shortly 5 (ECF No. 25, Attach. case 1, was
at 15)(citing
25-30).
thereafter
the
reopened.
(ECF No. 22).
On April 16, 2010, Defendant filed its (ECF No. 25).
motion for summary judgment. II.
Motion for Summary Judgment A. Federal Employees Health Benefits Program
The Federal Employees Health Benefits Act (FEHBA), 5 U.S.C. §§ 8901-8913 (2010), authorizes OPM to enter into annual
procurement contracts with private carriers which then provide health plan benefits to government employees. Id. § 8903.
Through the FEHBA Congress delegated to OPM the authority to decide the benefits and exclusions in FEHBA plans and to
negotiate and contract for any benefits, maximums, limitations, and exclusions "it considers necessary or desirable." Id.
§ 8902(d). benefits
The FEHBA requires that a carrier pay an enrollee's claim if OPM finds that the contract allows an
individual to receive a payment for the service or treatment at issue. Id. § 8902(j).
OPM has established a mandatory administrative process for review of denied claims. 5 C.F.R. § 890.105. A covered
individual must first submit denied claims to the carrier for reconsideration. Id. § 890.105(a)(1). If the denial is upheld
after reconsideration, the enrollee may petition OPM for review. Id. §§ 890.105(a)(1) and (e). Only after the OPM review may an
enrollee seek judicial review of the claim denial by filing a suit against OPM in federal court. 6 Id. §§ 890.105(a)(1),
809.107(c); see also Caudill v. Blue Cross & Blue Shield of North Carolina, 999 F.2d 74, 77 (4th Cir. 1993), overruled on other grounds by Empire HealthChoice Assurance, Inc. v. McVeigh, 547 U.S. 677 (2006). "The recovery in such a suit shall be
limited to a court order directing OPM to require the carrier to pay the amount of benefits in dispute." B. Review of OPM Decision 5 C.F.R. § 809.107(c).
Defendant argues that summary judgment is warranted because OPM's decision upholding CareFirst's denial of Plaintiff's
benefits claim was "a proper interpretation and application of the relevant provisions of the health benefits contract between CareFirst and OPM and is entitled to deference under the APA." (ECF No. 25, Attach. 1, at 16). According to Defendant, the
decision was rational and based on relevant factors after a thorough review of the complete administrative record and not arbitrary, capricious, or contrary to law. (Id. at 18). In
response, Plaintiff challenges both the process employed by OPM to reach its decision and the decision that the TPIs were not medically necessary.3 Plaintiff argues that OPM has refused to
3
Plaintiff also requests that the court order an audit of CareFirst to examine its pertinent records and accounts because of the number of CareFirst errors experienced by Dr. Filner's patients with chronic pain from 2001 to the present. (ECF No. 28, at 5-6). Pursuant to 5 C.F.R. § 890.107(c), the only remedy available to individuals challenging an OPM decision denying benefits is "a court order directing OPM to require the 7
provide him with copies of the medical reports associated with its review of his claim and failed to consider all the pertinent documents. that the (ECF No. 28, at 1-2). TPIs were medically In addition, Plaintiff argues necessary and that this
determination is supported by at least two independent medical physicians--Dr. Loev, an anesthesiologist and pain specialist, and Dr. Powers, a neurosurgeon. (Id. at 1-3).
A court reviews OPM actions under the FEHBA pursuant to the Administrative Procedures Act ("APA"), 5 U.S.C. § 706, based on the administrative record that was before the OPM when it made its determination. Burgin v. Office of Personnel Mgmt., 120
F.3d 494, 497 (4th Cir. 1997); see also Malek v. Leavitt, 437 F.Supp.2d 517, 526 (D.Md. 2006). review agency decisions to Under § 706 of the APA, courts determine whether they were
"arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." court must decide § 706(2)(A). the In its analysis, the was based on a
"whether
decision
consideration of all the relevant factors and whether there has been a clear error of judgment." Citizens to Preserve Overton
Park, Inc. v. Volpe, 401 U.S. 402, 416, (1971), overruled on other grounds by Califano v. Sanders, 430 U.S. 99 (1977).
Although the court's "inquiry into the facts is to be searching
carrier to pay the amount of benefits in dispute." cannot order OPM to conduct an audit. 8
The court
and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency." In OPM's applying Id. this basic principle to the judicial Fourth review of has
health
benefits
determinations,
Circuit
applied seemingly conflicting approaches.
In Myers v. United
States, 767 F.2d 1072, 1074 (4th Cir. 1985), and Caudill v. Blue Cross & Blue Shield the of North Carolina, OPM's 999 F.2d 74, 79-80 the
(4th Cir.
1993),
court
treated
decisions
with
deference due to an agency's interpretation of its own rules and regulations. defer to In Myers the Fourth Circuit concluded that it must interpretation of benefits provisions "unless 767
OPM's
plainly erroneous or inconsistent with the regulation." F.2d at 1074 (internal quotations omitted). concluded that of "[a] health district benefit with the court
Similarly, Caudill defers unless to OPM's `plainly 999 F.2d
interpretation erroneous at 80. or
contracts
inconsistent
regulation.'"
In contrast, in Burgin v. Office of Personnel Management, 120 F.3d 494, 497-98 (4th Cir. 1997), the Fourth Circuit
determined that it was appropriate to review OPM's denial of coverage de novo. OPM's denial of In Burgin, a federal employee had appealed insurance coverage for his wife's full-time
skilled nursing care, based upon an exception in the benefits 9
plan for "custodial care."
Id. at 495.
The court found that
because "the essential question is one of the interpretation of the contract's language, a question of law clearly within the competence of courts," no deference to OPM's interpretation of the term "custodial care" was appropriate in the case. 497-98. The of Burgin the court meaning proceeded and to discard of the Id. at OPM's terms
interpretation
application
"skilled nursing care" and "custodial or convalescent care" in the plan at issue and overturned the denial of coverage. Id.4
While the Fourth Circuit has not reconciled the conflicting approaches attempted to to OPM do review, so. In a subsequent v. district Office of court case
Campbell
Personnel
Management, 384 F.Supp.2d 951 (W.D.Va. 2004), the district court determined that Burgin's limitation was inapplicable where the crux of the patient's as to challenge to OPM's decision was was its
determination necessary.
whether
certain
treatment
medically
The plaintiff in Campbell was challenging the denial
The client at issue had been treated at a nursing center after suffering a cardiac arrest. At the nursing center she had a feeding tube, a tracheotomy tube for breathing, and received insulin. Burgin, 120 F.3d at 495. Her insurance plan denied coverage because it did not cover "custodial or convalescent care". Id. OPM argued that while the plan expressly covered "skilled nursing care" that term was meant to refer only to care which was likely to result in recovery and not care directed to the maintenance of daily living functions. Id. at 498. The Fourth Circuit rejected this interpretation and concluded that OPM's approach was unreasonable and unsupported by the facts. Id. at 498-99. 10
4
of
coverage
for
her
abdominoplasty
(colloquially
known
as
a
"tummy tuck"), a procedure that was recommended by her doctors to treat lower back pain. Id. at 952. The Campbell court
decided that "the essential question [was] not one of contract interpretation, in which the meaning of a term in the Plan is disputed, but one regarding a judgment of medical necessity." Id. at 955. The court held that OPM was entitled to
considerable deference under these circumstances because "OPM brings to the table substantial specialized knowledge regarding medical practice and procedure" making OPM "especially well
suited to make determinations regarding the necessity of medical procedures." Id.
The OPM determination at issue here is analogous to the one in Campbell. CareFirst denied Plaintiff's claims because they
were not deemed to be medically necessary, and OPM upheld the denial because it agreed with that finding. Thus, following the
approach in Myers, Caudill, and Campbell, the court will uphold OPM's determination so long as it is not arbitrary, capricious, or contrary to law and will not conduct a de novo review. OPM argues that its decision must be upheld because it considered the complete administrative record and reached a
decision that was rational and based on the relevant factors. (ECF No. 25, Attach. 1, at 18). Defendant's determination that
Plaintiff's TPIs were not medically necessary was based on the 11
report
of
the
independent
medical
reviewer,
Dr.
Gevirtz
and
relevant medical literature. his treatments were
(Id.).
Plaintiff counters that under the Plan's
medically
necessary
definition because they allowed him to work full time, prevented him from having to use opiates, and prevented his condition from deteriorating to the point that he would need a new liver or have major stomach issues. (ECF No. 28, at 2). In support,
Plaintiff points to reports from two independent doctors, Dr. Love and Dr. Power, and a letter from the pharmacy (Id. at 2; Exhibits 3 and 10). The court should not reevaluate the merits of an enrollee's claim or substitute its judgment on medical decisions for that of the OPM. Defendant CareFirst's supported Defendant by has See Campbell, 384 F.Supp.2d at 957-58. demonstrated of that the decision was to Here, uphold and
denial a
Plaintiff's review of
claim the
rational On
thorough all
record.
remand, any
submitted
relevant
materials,
including
additional records that Plaintiff wished to have considered, to an independent and medical pain reviewer who was Board-certified Gevirtz. in (ECF
anesthesia
medicine,
Dr.
Clifford
No. 33, at 3)(citing AR 1-26). materials submitted to him and
Dr. Gevirtz reviewed all the cited to six peer reviewed
publications in support of his conclusion that Plaintiff's TPIs after February 6, 2005, were not medically necessary because 12
they were being used to treat chronic pain. AR 26-30). Dr. Gevirtz's decision
(Id. at 4)(citing the decision
confirmed
reached by CareFirst.
The fact that Plaintiff has presented
reports from other doctors who disagree with this analysis is not sufficient for this court to conclude that OPM's decision was arbitrary or capricious. Aside from his challenge to the merits of the OPM decision, Plaintiff raises a few procedural challenges. Plaintiff asserts
that OPM refused to provide information regarding the type of medical professional reviewing his case and the records they created. (ECF No. 28, at 1). Plaintiff also asserts that OPM
failed to consider all the evidence he submitted and improperly delayed its request for additional information when necessary. (Id. at 2). of summary None of Plaintiff's arguments preclude the granting judgment. Plaintiff's assertion that Defendant
failed to provide information about its medical review process is contradicted by the record. The letter which Plaintiff
asserts was excluded from OPM's review was in fact part of the administrative record. (See AR 11). Finally, OPM's delay in
requesting additional MRIs does not necessitate a finding that the review process was arbitrary and capricious. Ultimately,
OPM considered all the relevant documents and made an assessment that is substantiated by the facts.
13
For these reasons, summary judgment for Defendant will be granted.
/s/ DEBORAH K. CHASANOW United States District Judge
14
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