JOEL H. SLOMSKY, District Judge.
Before the Court is a request for judicial review of an administrative decision by the Office of Personnel Management ("OPM" or "Defendant"), an agency of the federal government. In 2008, pro se Plaintiff Michael Pellicano ("Plaintiff") purchased medical equipment and sought reimbursement through his primary insurance provider. The provider covered 65% of the cost, instead of the full 100% sought by Plaintiff. (Doc. No. 1 at 2.) As a federal employee, Plaintiff is enrolled in a health benefits plan under the Federal Employees Health Benefits Act ("FEHBA"), 5 U.S.C. § 8901 et seq. In accordance with the FEHBA, Plaintiff appealed his insurance provider's coverage decision to OPM. On February 22, 2010, OPM decided that 65% coverage for the purchase of necessary medical equipment was appropriate under Plaintiffs plan and concurred with his primary insurance provider's decision to cover that amount. (Doc. No. 1 at 15.) OPM sent a letter to Plaintiff notifying him of the decision and advising him that if he disagreed with the decision then he "may file suit against [OPM] in [f]ederal court." (Id.)
On March 2, 2011, Plaintiff filed a Complaint against OPM in this Court, alleging that the agency had "breached fiduciary duties [and] was arbitrary and capricious in denying additional benefits." (Id. at 1.) Pursuant to M.D. Pa. Local Rule 73.1(d), the case was assigned to U.S. Magistrate Judge Martin C. Carlson and this Court. On November 22, 2011, OPM filed a motion to remand the proceedings to the administrative agency in order to develop a full and complete factual record. (Doc. No. 21.) After briefing, Judge Carlson issued a Report and Recommendation, recommending that the case be remanded to OPM for further proceedings. (Doc. No. 26.)
On April 12, 2012, 2012 WL 1243226, over Plaintiffs objections, this Court
On November 8, 2013, after reviewing OPM's extensive administrative record (Doc. No. 54), and the motions for summary judgment and supporting documents (Doc. Nos. 61-65), Judge Carlson issued a Report, recommending that Defendant's Motion for Summary Judgment be granted and Plaintiff's Motion for Summary Judgment be denied. (Doc. No. 67.) Plaintiff filed timely objections to the Magistrate Judge's Report and Recommendation, and those objections are now before this Court for consideration.
The following factual account is taken from the Magistrate Judge's Report and Recommendation:
(Id., p. 1113.)
(Id.)
(Id., pp. 1119-1120.)
(Doc. No. 67 at 629-33.)
The Federal Employee Health Benefit Act ("FEHBA"), 5 U.S.C. § 8901 et seq., governs health benefit claims made by and for federal employees. The United States Supreme Court has determined that "FEHBA's . . . jurisdictional provision vests federal district courts with `original jurisdiction . . . of a civil action or claim against the United States.'" Empire Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 677, 126 S.Ct. 2121, 165 L.Ed.2d 131 (2006) (quoting 5 U.S.C. § 8912).
Under the FEHBA regulations, the scope of judicial review of an action brought against OPM "will be limited to the record that was before OPM when it rendered its decision. . . ." 5 C.F.R. § 890.107(d)(1). Because OPM's decision is a final agency decision, judicial review of the record before OPM is further governed by the Administrative Procedure Act ("APA"), 5 U.S.C. § 706. Pursuant to the APA, an agency decision is reviewed under an arbitrary and capricious standard. 5 U.S.C. § 706(2)(A).
Pursuant to 28 U.S.C. § 636(b)(1)(B) and the local rales of this Court, a district judge may designate a magistrate judge to file proposed findings and recommendations. Here, in order to determine whether OPM's action was arbitrary and capricious, Magistrate Judge Carlson asked the parties to file cross-motions for summary judgment. Summary judgment is appropriate "if the movant shows that there is no 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). A disputed issue is "genuine" only if there is a sufficient evidentiary basis on which a reasonable jury could find for the nonmoving party. Kaucher v. Cnty. of Bucks, 455 F.3d 418, 423 (3d Cir.2006) (citing Anderson v. Liberty Lobby, Lie, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). For a fact to be considered "material," it "must have the potential to alter the outcome of the case." Favata v. Seidel, 511 Fed.Appx. 155, 158 (3d Cir.2013). "When confronted with cross-motions for summary judgment . . . `the court must rule on each party's motion on an individual and separate basis, determining, for each side, wrhether a judgment may be entered in accordance with the summary judgment standard.'" Transguard Ins. Co. of Am,, Inc. v. Hinchey, 464 F.Supp.2d 425, 430 (M.D.Pa.2006) (quoting Marciniak v. Prudential Fin, Ins. Co. of Am., 184 Fed.Appx. 266, 270 (3d Cir.2006)). "If review of [the] cross-motions reveals no genuine issue of material fact, then judgment may be entered in favor of the party deserving of judgment in light of the law and undisputed facts." Id. (citing Iberia Foods
Any party may file written objections in response to the findings of a Report and Recommendation. Id. § 636(b)(1)(C). In the Middle District of Pennsylvania, Local Rule 72.3 governs Plaintiffs objections to the Magistrate Judge's Report and Recommendation. Under this Rule, Plaintiff "shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections." Local R. Civ. P. 72.3.
Once objections are filed, the district judge "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. [The judge] may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). The Third Circuit has "assumed that the normal practice of the district judge is to give some reasoned consideration to the magistrate [judge's] report before adopting it as the decision of the court." Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir.1987); see also Bolt v. Strada, No. 12-1599, 2013 WL 4500466, at *1 (M.D.Pa. Aug. 21, 2013).
Pursuant to FEHBA and the Administrative Procedure Act, Judge Carlson's review of the motions for summary judgment was limited to the record before OPM when it reached its final decision upholding the partial denial of Plaintiffs claim. Judge Carlson reviewed the motions and the record below in order to determine if OPM's actions were arbitrary and capricious. He found that they were not, and he recommended that this Court grant Defendant's motion for summary judgment and deny Plaintiffs motion. This Court has undertaken a de novo review of Plaintiffs objections and for the following reasons will overrule the objections and adopt Judge Carlson's Report and Recommendation.
Here, Plaintiff asserts five objections to the Report and Recommendation, but only three merit review under the standards of Local Rule 72.3 and 28 U.S.C. § 636. Accordingly, the Court will only examine Plaintiffs First, Third and Fifth Objections.
The Report and Recommendation states that its factual findings "are derived, in part, from the statement of undisputed material facts tendered by the defendants, to the extent that those facts have been found to be fully supported by the agency administrative record." (Doc. No. 67 at 629, n. 1) It goes on to state that because "[Plaintiff] has not disputed the accuracy of [Defendant's] statement of facts, [under] Local Rule 5.1, [he] is deemed to [have] admitted] these facts. . . ." (Id.) In his First Objection, Plaintiff argues that he did dispute Defendant's statement of facts in both his Motion for Judgment (Doc. No. 61) and his Brief in Opposition to Defendant's Motion for Summary Judgment (Doc. No. 65).
Plaintiff does oppose Defendant's statement of facts in these two motions, and he offers his own version of events to counter several specific details. (Doc. Nos. 61 at 2, 65 at 2.) However, the facts submitted by Plaintiff do not raise a genuine issue of material fact. First, they are not supported by evidence in the administrative record and are therefore not "genuine." Rancher, 455 F.3d at 423 (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505.) (A disputed issue is "genuine" only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party.). In addition, they do not "have the potential to alter the outcome of the case" and are therefore not "material" to the disposition of the case. Favata, 511 Fed. Appx. at 158. For example, Plaintiff objects to the following statement in Defendant's Statement of Facts: "It is not clear from the record exactly when the prior approval request was submitted, but it appears to have been in December 2008. See OPM 71-74." His lengthy counterstatement to this fact is that he submitted the prior approval request in January 2008, not December 2008. This factual statement is unsupported by the record, but even if it were supported, it is not substantial enough to alter the outcome of the case. Therefore, this fact is neither genuine nor material.
Notably, the Magistrate Judge did not adopt Defendant's undisputed statement of facts in its entirety, but undertook a search of the administrative record, totaling more than 1,000 pages, and adopted only those portions of the facts that were supported by the record. This Court adopts the Magistrate Judge's findings of fact and Plaintiffs First Objection is overruled.
Plaintiffs Third Objection is to the introduction of CareFirst's 2008 policy on individual pricing consideration. The policy states that "for durable medical [equipment] acquired prior to 2011, the allowance for the procedure code should be 65% of the charge. . . ." (Doc. No. 67 at 632.) Plaintiff contends that CareFirst provided the 2008 policy to OPM later in the administrative review proceedings than the Magistrate Judge implied. Also, Plaintiff contends that the Magistrate Judge should not have considered this document because
First, the fact that the 2008 policy may have been turned over later in the remand process is not substantial enough to alter the outcome of this case. This document was turned over prior to the administrative agency's revised agency decision on July 24, 2012. Therefore, the document is properly a part of the record in this case, and the Magistrate Judge was obligated to review it. Second, there is no evidence to support the notion that this document is inauthentic. Therefore, Plaintiffs Third Objection is overruled.
Plaintiffs Fifth Objection relates to the assertion that "Pennsylvania Blue Cross Blue Shield advised [him] to submit a prior approval request to CareFirst BlueCross BlueShield. . . ." He argues that Blue Cross Blue Shield never advised him to submit the prior approval request, although he admits that he ultimately did send the request to CareFirst. Like the statements asserted in Plaintiffs other objections, this statement is not supported by the record and, even if it was, it does not amount to a genuine issue of material fact. Accordingly, his Fifth Objection is overruled.
For the foregoing reasons, the Court will adopt and approve Magistrate Judge Carlson's Report and Recommendation (Doc. No. 67), grant OPM's Motion for Summary Judgment (Doc. No. 62) and deny Plaintiffs Motion for Judgment (Doc. No. 61). An appropriate Order follows.
MARTIN C. CARLSON, United States Magistrate Judge.
This is a pro se civil action brought by Michael Pellicano, an enrollee in a health benefits plan for federal employees, under the Federal Employees Health Benefits Act, (FEHBA), 5 U.S.C. § 8901 et seq. The plaintiffs civil complaint in this action details a course of events beginning in 2008, during which Mr. Pellicano endeavored to secure approval from his health benefit plan to cover expenses associated with the acquisition of durable medical equipment. (Doc. 1) Ultimately, Mr. Pellicano received a partially favorable resolution of this dispute, since it appears that 65% of the cost of this equipment was reimbursed for Pellicano by his health insurer, but Pellicano's request for 100% reimbursement for the cost of this equipment was denied, a coverage denial which was ultimately affirmed by the Office of Personnel Management (OPM) which oversees claims disputes under federal employee health benefit plans. After detailing these experiences, Mr. Pellicano's complaint named the Office of Personnel Management, an agency of the United States government, as a defendant and sought reimbursement of $7,243.95 in benefits, representing the unpaid 35% portion of this insurance claim, alleging that the denial of these benefits under FEHBA by OPM was "arbitrary and capricious". (Doc. 1)
As part of this litigation, we previously granted OPM's request for a remand of this matter, in order to allow OPM to review any internal policy that the local Blue Cross Blue Shield plan had in place that governed calculation of payment of Pellicano's insurance claim, and to permit OPM to seek further clarification from the carrier regarding several explanations of benefits that the plaintiff submitted with his appeal, documents which he claims establish that other enrollees were fully compensated for the purchase of the same type of durable medical equipment.
For the reasons set forth below, upon consideration of the record, we find that while the insurance process experienced by Pellicano entailed many detours and frustrations, the final decision of this insurance carrier, which was affirmed by OPM, to reimburse the plaintiff for 65% of this particular medical expense was not arbitrary and capricious. Therefore, we recommend that the Court enter judgment in favor of the defendant in this matter.
With respect to this dispute the pertinent facts are as follows:
This request then set in motion a protracted journey through various health care bureaucracies. At the outset, upon receipt of Pellicano's request the local Pennsylvania Blue Cross Blue Shield Plan determined that the provider for this particular piece of durable medical equipment was located in Baltimore, Maryland. Accordingly, Pennsylvania Blue Cross Blue Shield advised Pellicano to submit a prior approval request to CareFirst BlueCross BlueShield (CareFirst), which was responsible for such requests in Maryland. (Id.) Pellicano followed this direction and submitted a request for prior approval with CareFirst, which initially denied the claim as non-covered on January 26, 2009. (Id., p. 65.)
Mr. Pellicano challenged this coverage determination in a letter dated March 6, 2009, and requested reconsideration of the carrier's denial of the claim. (Id., pp. 55-57.) One month later, on April 7, 2009, CareFirst responded to Pellicano's request. In this response CareFirst explained that the claim had been processed with an incorrect rejection code, stated that Medicare was Pellicano's primary insurer, informed Pellicano that his federal benefit plan provided secondary coverage, and advised Pellicano that "[y]ou must submit a claim for this charge to Medicare. After Medicare has paid, please send your
Thus, CareFirst's April 2009 response directed Pellicano to take another bureaucratic journey: Specifically, to secure reimbursement Pellicano was required to first file an appeal with Medicare. If his appeal was denied by Medicare he was then permitted to appeal to the Blue Cross Blue Shield carrier as a secondary health insurer. (Id.) CareFirst then completed the bureaucratic process of addressing Pellicano's initial claim by reprocessing the claim under a new claim number and denying the claim for the correct reason. (Id., p. 66.)
Undeterred, Pellicano launched two parallel efforts to secure reimbursement of this medical expense. First, on or about July 6, 2009, Pellicano sought reconsideration of the denial of this claim. (Id., p. 59.) In addition, Pellicano attempted to comply with the directions he received from Care-First that he exhaust any claims first through Medicare, by submitting a Medicare denial benefit statement and Medicare appeal denial letter indicating that Medicare denied the claim for the this durable medical equipment. (Id., pp. 59-63.) This Medicare appeal decision found that the Functional Electrical Stimulation (FES) cycle ergonometer was not covered by Medicare because "the motorized cycle system [he] purchased is categorized as exercise equipment. Medicare does not provide reimbursement for equipment that is not primarily medical in nature." (Id., p. 61.)
On September 23, 2009, after considering information submitted by Pellicano and receiving requested medical documentation from Pellicano's medical providers, Care-First issued its decision on reconsideration finding that the Functional Electrical Stimulation (FES) cycle ergonometer met the criteria for covered durable medical equipment and was medically necessary for Pellicano's condition. (Id., pp. 2-4.) Accordingly, Pellicano was informed that the claim was found to be reimbursable but was advised that CareFirst would only pay the claim using 65% of the billed charge as the Plan allowance. (Id., p. 4.) This letter also stated that a check had been issued to Pellicano in the amount of $13,435.05-65% of the billed amount—and that Pellicano's total responsibility for the claim was $20,697.00. (Id.)
Dissatisfied with this decision, Pellicano filed an appeal of this decision with OPM on December 2, 2009. (Id., pp. 1-16.) In this appeal, Pellicano challenged the amount that was paid on the claim, specifically, disputing the decision to allow reimbursement of only 65% of this equipment expense. (Id.) On appeal, Pellicano raised a twofold claim, arguing first that nothing in the health benefit plan justified a reduced 65% reimbursement rate for this expense. In addition, Pellicano provided redacted copies of two other redacted Explanation of Benefit (EOB) forms which appeared to have approved full reimbursement of similar devices in the past. (Id., pp. 10, 12.) According to these copies, it appeared that the billed charge amount was the amount used as the Plan allowance, although the Explanations of Benefits letters did not reflect precisely what services or supplies were at issue on those specific claims. Nor did the forms explain the nature of the claimant's medical justification for this equipment. (Id.)
On December 29, 2009, the CareFirst, in turn, provided OPM with an Explanation of Denial Report (EOD Report), explaining the history of this particular denied claim. (Id., pp. 43-48.) In this report, CareFirst explained that "[t]he Plan does not have an established allowance for the FES cycle
Having received this information from the carrier, on February 22, 2010, OPM issued a final agency decision which upheld the carrier's actions. (Id., p. 225.) In this decision OPM explained that the applicable provisions in the 2008 plan brochure relating to Mr. Pellicano contained a formula for calculating the Plan allowance that applied to physicians and other health care professionals that do not contract with the local Blue Cross Blue Shield Plan. This provision stated that the non-participating provider allowance generally is equal to "the greater of 1) the Medicare participating fee schedule amount for the service or supply in the geographic area in which it was performed or obtained (or 60% of the billed charge if there is no equivalent Medicare fee schedule amount) or 2) 100% of the 2008 Usual, Customary and Reasonable (UCR) amount for the service or supply in the geographic area in which it was performed or obtained." (Id., p. 1085.) However, according to OPM's February 2010 decision," [t]here is not a [usual, customary and reasonable payment amount] UCR or Medicare fee schedule amount for the DME in question." Therefore, in the absence of either a set Medicare fee schedule or a usual, customary and reasonable payment amount for this particular equipment, OPM concluded that "CareFirst. . . policy is to provide benefits at 65 percent of the billed amount, when there is no established allowance." (Id., p. 225.)
OPM also addressed Mr. Pellicano's claims that the Plan brochure supported the use of 100% of the billed amount as the Plan allowance and his assertion that other plan members had received full reimbursement for similar equipment by explaining that "[t]here is not a UCR [usual, customary and reasonable payment schedule] or Medicare fee schedule amount for the DME in question. Therefore, the Plan provided benefits as indicated above. Also we cannot direct the Plan to provide benefits based on information that you submitted of other BCBS enrollees. Our decision is based solely on the Plan's contract and its application to your disputed claim." (Id.)
Following the filing of this lawsuit, at OPM's request we remanded this matter to the agency for further consideration and fact-finding. On remand, OPM sought an additional report from the carrier, (id., pp. 1098-1100), and invited Mr. Pellicano to submit information relating to the issues on remand. Mr. Pellicano declined this request, (id., pp. 1106-07), but CareFirst provided additional documentation which explained that:
(Id., pp. 1112-1113.)
With respect to the redacted Explanation of Benefit forms submitted with Pellicano's appeal, the CareFirst explained that:
(Id., p. 1113.)
The carrier also provided OPM a copy of the referenced Plan policy for 2008 Individual Consideration (IC) pricing, which stated that for durable medical equipment acquired prior to 2011, "the allowance for the procedure code should be 65% of the charge. . . ." (Id., pp. 1116-1117.)
On July 24, 2012, OPM issued a revised final agency decision in this matter, reaffirming its prior decision that the carrier correctly used 65% of the billed charge as the payment for the durable medical equipment in question. (Id., pp. 1119-1124.) In its July 2012 decision, OPM explained that:
(Id.)
The OPM July 2012 decision letter went on to address Pellicano's contention that other plan members had received full reimbursement of these expenses, stating:
(Id., pp. 1119-1120.)
It is this decision which we must now assess to determine whether the agency's action is arbitrary and capricious.
The parties have filed motions, in the nature for cross motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Rule 56 provides that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.Civ.P. Rule 56(a). Through summary adjudication a court is empowered to dispose of those claims that do not present a "genuine dispute as to any material fact," Fed.R.Civ.P. 56(a), and for which a trial would be "an empty and unnecessary formality." Univac Dental Co. v. Dentsply Int'l, Inc., 702 F.Supp.2d 465, 468 (M.D.Pa. 2010). The substantive law identifies which facts are material, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute about a material fact is genuine only if there is a sufficient evidentiary basis that would allow a reasonable fact finder to return a verdict for the non-moving party. Id. at 248-49, 106 S.Ct. 2505.
The moving party has the initial burden of identifying evidence that it believes shows an absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 145-46 (3d Cir.2004). Once the moving party has shown that there is an absence of evidence to support the nonmoving party's claims, "the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument." Berckeley Inv. Group. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir.2006); accord Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the nonmoving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden at trial," summary judgment is appropriate. Celotex, 477 U.S. at 322, 106 S.Ct. 2548. Summary judgment is also appropriate if the non-moving party provides merely colorable, conclusory, or speculative evidence. Anderson, 477 U.S. at 249, 106 S.Ct. 2505. There must be more than a scintilla of evidence supporting the nonmoving party and more than some metaphysical doubt as to the material facts. Id. at 252, 106 S.Ct. 2505; see also, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). In making this determination, the court must "consider all evidence in the light most favorable to the party opposing the motion." AW. v. Jersey City Pub. Schs., 486 F.3d 791, 794 (3d Cir.2007).
Further, a party who seeks to resist a summary judgment motion must also comply with Local Rule 56.1, which specifically directs a party opposing a motion for summary judgment to submit a "statement of the material facts, responding to the numbered paragraphs set forth in the statement required [to be filed by the movant], as to which it is contended that there exists a genuine issue to be tried"; if the nonmovant fails to do so, "[a]ll material facts set forth in the statement required to be served by the moving party will be deemed to be admitted." L.R. 56.1. Under the Local Rules, the
Doe v. Winter, No. 04-CV-2170, 2007 WL 1074206, *1 n. 2, 2007 U.S. Dist. LEXIS 25517, *2 n. 2 (M.D.Pa. Apr. 5, 2007) (parallel citations omitted; court's emphasis). A party cannot evade these litigation responsibilities in this regard simply by citing the fact that he is a pro se litigant. These rules apply with equal force to all parties. See Sanders v. Beard, No. 09-CV-1384, 2010 WL 2853261, *5, 2010 U.S. Dist. LEXIS, *lo (M.D.Pa. July 20, 2010) (pro se parties "are not excused from complying with court orders and the local rules of court"); Thomas v. Nonis, No. 02-C01854, 2006 WL 2590488, *4, 2006 U.S. Dist. LEXIS 64347, *11 (M.D.Pa. Sept. 8, 2006) (pro se parties must follow the Federal Rules of Civil Procedure).
In this case the plaintiff, Michael Pellicano, seeks judicial review of a health benefit denial decision made by the Office of Personnel Management under the Federal Employee Health Benefit Act, (FEHBA) 5 U.S.C. § 8901. FEHBA is a federal law governing health benefits claims made by and for federal employees. In enacting FEHBA, Congress preempted many of the legal claims which program enrollees like Mr. Pellicano might wish to pursue, providing instead that for federal health benefit program enrollees: "The terms of any contract under this chapter which relate to the nature, provision, or extent of coverage or benefits (including payments with respect to benefits) shall supersede and preempt any State or local law, or any regulation issued thereunder, which relates to health insurance or plans." 5 U.S.C. § 8902(m)(l). The Supreme Court has aptly described the background, scope and rationale for this preemption rule in federal employee health benefit enrollee and provider disputes in the following terms:
Empire Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 677, 126 S.Ct. 2121, 165 L.Ed.2d 131 (2006).
The implementing regulations governing FEHBA health benefit plans, in turn, provide for adjudication of disputes between enrollees and health care benefit carriers by OPM, 5 C.F.R. § 890.105, and permit aggrieved enrollees to bring civil actions in federal court, but provide that OPM is the sole defendant in these civil actions. 5 C.F.R. § 890.107(c). Those regulations further state that the scope of judicial review in such an action, "will be limited to the record that was before OPM when it rendered its decision affirming the carrier's denial of benefits," 5 C.F.R. § 890.107(d)(1), and the assert that relief which may be afforded to a plaintiff 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(c).
Judicial review of OPM's health benefit denial decisions under the Federal Employee Health Benefit Act, (FEHBA) 5 U.S.C. § 8901 is governed by the Administrative Procedure Act (APA). 5 U.S.C. § 706(2)(A). Under the APA, this judicial review is limited to determining whether the agency's actions were arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law. See e.g., Caudill v. Blue Cross and Blue Shield of North Carolina, 999 F.2d 74, 80 (4th Cir. 1993); Harris v. Mutual of Omaha Cos., 992 F.2d 706, 712 (7th Cir.1993); Bolden v. Blue Cross & Blue Shield Ass'n, 848 F.2d 201, 203 (D.C.Cir.1988); Tackitt v. Prudential Ins. Co. of Am., 758 F.2d 1572, 1575 (11th Cir.1985). "A finding that the agency's action is arbitrary and capricious would require the court to find that there is no rational basis for the decision." Reger v. Espy, 836 F.Supp. 869, 871 (N.D.Ga. 1993). Thus, Pellicano faces an exacting burden of proof and persuasion when he invites us to find OPM's actions in this case to be arbitrary or capricious, and we note that such claims, while frequently made, are rarely embraced by the courts. See e.g., Weight Loss Healthcare Centers of Am., Inc. v. Office of Pers. Mgmt., 655 F.3d 1202, 1207 (10th Cir.2011) ("Not surprisingly, under arbitrary-and-capricious review we will not endorse an OPM interpretation if it is arbitrary or capricious"); Muratore v. U.S. Office of Pers. Mgmt., 222 F.3d 918, 924 (11th Cir.2000) (OPM did not act arbitrarily or capriciously when it determined that the specific provision for speech therapy in the medical benefits section); Gates v. King, 129 F.3d 1259 (4th Cir.1997); Reger v. Espy, 836 F.Supp. 869, 871 (N.D.Ga.1993). Applying this deferential standard or review, when it has been found that when OPM based its affirmance of a Plan's denial of coverage in part on the language in the Plan's brochure, and documents submitted by the Plan, this agency action has not been considered either arbitrary or capricious, and OPM's coverage decision has been affirmed. See Gates v. King, 129 F.3d 1259 (4th Cir. 1997).
Judged against these standards, we find that Pellicano has not shown the requisite degree of arbitrariness to justify setting aide OPM's judgment. In this case, OPM was presented with an insurance coverage and reimbursement dispute, where coverage for the requested equipment, and appropriate reimbursement rates for the equipment, were unclear. Further, the
Cast against the backdrop of this complex coverage dispute, the coverage and reimbursement decision made by the carrier, and affirmed by OPM, was a reasonable one. That interpretation found that the equipment was covered under Pellicano's policy, but concluded that this particular equipment was not described by Medicare fee schedules, and had no generally recognized usual, customary and reasonable rate of reimbursement. In the absence of one of these recognized and settled reimbursement schedules, it was the Plan's practice to reimburse only 65% of an expense. However, this reimbursement decision was also largely favorable for Pellicano, since it authorized reimbursement of 65% of the costs of this equipment. While Pellicano has presented a second, plausible interpretation of these rules which would have allowed for full reimbursement of this durable medical equipment expense as a usual, customary and reasonable expense, in order to prevail in this lawsuit Pellicano must do more than show that OPM's decision involved a choice between two competing, plausible interpretations of an insurance policy. To prevail Pellicano must show that the choice made by OPM was arbitrary or capricious, a legal standard which "would require the court to find that there is no rational basis for the decision." Reger v. Espy, 836 F.Supp. 869, 871 (N.D.Ga.1993). Since Pellicano's textual argument does not demonstrate that OPM's decision was irrational, this claim fails.
Pellicano's second argument, that similar equipment requests had been fully reimbursed in the past, gives us greater pause since the disparate treatment of identical claims could create an inference of arbitrariness. However, upon reflection, we conclude that this argument also fails since OPM reasonably concluded that it could not ascertain from the information provided by Pellicano whether these prior claims were, in fact, identical. Moreover, in a field as complex as health care administration, we also find persuasive OPM's position that the canier cannot be forever estopped from changing a policy coverage determination, and if the carrier made an initial erroneous coverage decision, it must retain some discretion to correct that determination as it gains experience interpreting complex rules in changing circumstances. Therefore, since Pellicano has not shown that the other claims were, in fact, identical, and has not demonstrated that the prior coverage decisions on these other claims were, in fact, correct, we conclude that he has not carried his burden of proving that OPM acted irrationally, arbitrarily, or capriciously when it affirmed this partially favorable coverage decision made by Pellicano's carrier.
Yet, while we reach this result as a matter of law, we recognize the frustrations experienced by Mr. Pellicano throughout this process. However, those frustrations, while understandable, do not render the decisions made by the Plan and OPM wholly arbitrary or capricious. Since these coverage and reimbursement decisions are not arbitrary, under the law they should be sustained.
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the defendants' motion for summary judgment (Doc. 62) be GRANTED and, in light of this recommended disposition of the defendants' motion, IT IS FURTHER RECOMENDED that the plaintiffs motion for
The parties are further placed on notice that pursuant to Local Rule 72.3:
Submitted this 8th day of November 2013.
