JOSEPH F. SAPORITO, JR., Magistrate Judge.
This is a pro se civil action brought by the plaintiff, Michael V. Pellicano, seeking judicial review of several administrative decisions by the Office of Personnel Management ("OPM"), an agency of the United States federal government. Pellicano is a retired federal employee who was disabled after suffering a spinal cord injury in 2002, which rendered him a quadriplegic. He is enrolled in a health benefits plan, the NALC Health Benefit Plan (the "Plan"), under the Federal Employees Health Benefits Act (FEHBA), 5 U.S.C. § 8901 et seq. In this action, he seeks judicial review of several OPM administrative decisions regarding his insurer's denials of coverage with respect to certain durable medical equipment ("DME") and medical supplies, claiming that each of these decisions was "arbitrary and capricious."
OPM has appeared and filed two motions in response: A motion to remand with respect to two of Pellicano's claims (Doc. 5) and a motion to dismiss with respect to Pellicano's other three claims (Doc. 6). The motions are fully briefed and ripe for decision.
Pellicano seeks judicial review with respect to five separate health care benefits claims.
1. Claim No. Y15099009. On or after April 11, 2014, Pellicano submitted a benefits claim to the Plan for parts and repair of the rehab shower commode chair he had been using for more than a decade, at a cost of $415.00. On February 4, 2015, the Plan paid a benefit of $332.00 for this item, leaving Pellicano responsible for the $83.00 remainder. Pellicano sought reconsideration by the Plan with respect to the remaining $83.00 balance, but on March 3, 2015, the Plan reaffirmed its benefits coverage determination. Pellicano appealed the Plan's denial of benefits coverage to OPM, which assigned it claim number Y15099009. On April 21, 2015, OPM upheld the Plan's benefits coverage determination.
2. Claim No. Y15035005. On or after April 15, 2014, Pellicano submitted a benefits claim to the Plan for parts and repair of a functional electrical stimulator ("FES") cycle ergometer, at a cost of $84.46. The Plan denied benefits on the ground that the equipment did not meet the Plan's definition of durable medical equipment, and thus the Plan afforded no coverage for these materials. Pellicano appealed the Plan's denial of benefits coverage to OPM, which assigned it claim number Y15035005. On February 24, 2015, OPM wrote Pellicano to advise that the Plan had decided to exercise its discretion to authorize a one-time payment of $70.98 toward the repair parts, leaving Pellicano responsible for the $13.48 remainder. OPM advised Pellicano that, the matter having been resolved in his favor, OPM would be taking no further action on his appeal. Pellicano alleged in his complaint that, on April 27, 2015, he appealed the Plan's denial of benefits coverage with respect to the $13.48 remainder, but the complaint does not allege any facts with respect to subsequent activity on this claim by OPM or the Plan.
3. Claim No. Y15205005. Some time prior to June 6, 2014, Pellicano submitted a benefits claim to the Plan for a supply of Enemeez-brand "mini-enema" product used between February 20, 2012, and December 26, 2012, at a cost of $336.00. On or before June 6, 2014, the Plan paid a benefit of $268.80 for this item, leaving Pellicano responsible for the $67.20 remainder. Pellicano sought reconsideration by the Plan with respect to the remaining $67.20 balance, but on August 11, 2014, the Plan reaffirmed its benefits coverage determination. Pellicano sought further reconsideration by the Plan, but on October 30, 2014, the Plan reaffirmed its benefits coverage determination once again. Pellicano appealed the Plan's denial of benefits coverage to OPM, which assigned it claim number Y15205005. On August 12, 2015, OPM upheld the Plan's benefits coverage determination.
4. Claim No. Y15126013. On or about February 10, 2015, Pellicano submitted a benefits claim to the Plan for a supply of Enemeez-brand "mini-enema" product used between February 13, 2013, and December 3, 2013, at a cost of $540.00. The Plan denied benefits coverage altogether with respect to this claim due to the untimeliness of Pellicano's submission. Pellicano appealed the Plan's denial of benefits coverage to OPM, which assigned it claim number Y15126013. On May 28, 2015, OPM upheld the Plan's benefits coverage determination.
5. Claim No. Y16063002. At some point prior to January 13, 2016, Pellicano requested preauthorization of benefits for a shower commode chair to replace the one he had been using for more than a decade. On January 13, 2016, the Plan denied coverage for the replacement shower commode chair on the ground that the replacement shower commode chair was not a covered item under the Plan's durable medical equipment benefits. Pellicano sought reconsideration by the Plan, but on January 27, 2016, the Plan reaffirmed its benefits coverage determination. Pellicano appealed the Plan's denial of benefits coverage to OPM, which assigned it claim number Y16063002. On March 30, 2016, OPM upheld the Plan's benefits coverage determination.
Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a defendant to move to dismiss for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). "Under Rule 12(b)(6), a motion to dismiss may be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court finds the plaintiff's claims lack facial plausibility." Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). Although the Court must accept the fact allegations in the complaint as true, it is not compelled to accept "unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a factual allegation." Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007)).
Under Rule 12(b)(6), the defendant has the burden of showing that no claim has been stated. Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991); Johnsrud v. Carter, 620 F.2d 29, 32-33 (3d Cir. 1980); Holocheck v. Luzerne County Head Start, Inc., 385 F.Supp.2d 491, 495 (M.D. Pa. 2005). Although a plaintiff is entitled to notice and an opportunity to respond to a motion to dismiss, he has no obligation to do so — he may opt to stand on the pleadings rather than file an opposition. The Court must nevertheless examine the complaint and determine whether it states a claim as a matter of law. Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991); Anchorage Assocs. v. Virgin Islands Bd. of Tax Review, 922 F.2d 168, 174 (3d Cir. 1990). In deciding the motion, the Court may consider the facts alleged on the face of the complaint, as well as "documents incorporated into the complaint by reference, and matters of which a court may take judicial notice." Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
Pellicano claims that all five coverage determinations by OPM were arbitrary and capricious. OPM has moved to remand claims Y15099009 (repair of shower commode chair) and Y16063002 (replacement of shower commode chair), and to dismiss claims Y15035005 (repair of FES cycle ergometer), Y15205005 (2012 Enemeez supply), and Y15126013 (2013 Enemeez supply).
Both Y15099009 and Y16063002 concern coverage determinations with respect to a shower commode chair, but the Plan's benefits coverage determinations with respect to these two claims appear to be inconsistent with one another.
In support of its motion to remand, OPM has stated: "In the present case, OPM's administrative record of its decision denying plaintiff's claim for benefits with respect to claims Y15099009 and Y16063002 is incomplete and lacks adequate information to accommodate thorough judicial review." (Doc. 5, at 2-3).
With respect to the repair parts claim, Claim No. Y15099009, OPM has stated:
(Doc. 7, at 2-3).
With respect to the replacement chair claim, Claim No. Y16063002, OPM has stated:
(Id. at 3).
OPM contends that
(Id. at 3-4).
In this case, the plaintiff seeks judicial review of health benefit denial decisions made by OPM under the FEHBA, a federal law governing health benefits claims made by and for federal employees and retirees. The implementing regulations governing FEHBA health benefit plans 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. Id. § 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," id. § 890.107(d)(1), and 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." Id. § 890.107(c).
Judicial review of OPM's health benefit denial decisions under the FEHBA is governed by the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq. 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 5 U.S.C. § 706(2)(A). While this is a deferential standard of review, as part of this review, the Court may remand a case to the agency for further consideration where, as here, the agency admits that its current decision-making record is insufficient to permit an informed decision regarding whether the agency's actions were arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law. See Loma Linda Univ. v. Schweiker, 705 F.2d 1123, 1127 (9th Cir. 1983) ("A reviewing court has inherent power to remand a matter to the administrative agency. Where the agency has failed to consider important evidence, the proper course is to remand for reconsideration rather than undertake its own inquiry into the merits.") (citation omitted); see also Sec'y of Labor of U.S. v. Farino, 490 F.2d 885, 891 (7th Cir. 1973).
The Supreme Court of the United States has provided us with guidance on the exercise of this inherent power. "Generally speaking, a court . . . should remand a case to an agency for decision of a matter that statutes place primarily in agency hands." I.N.S. v. Orlando Ventura, 537 U.S. 12, 16 (2002).
Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985).
In applying this guidance, this Court has previously stayed and remanded federal employee health benefit enrollee claims brought pursuant to the FEHBA where OPM admits that its administrative record is inadequate and seeks a remand to reconsider its decision — indeed, we have done so with respect to unrelated health benefits claims by this very same plaintiff. See Pellicano v. Office of Pers. Mgmt. Ins. Operations, Civil No. 3:11-CV-405, 2011 WL 7665934 (M.D. Pa. Dec. 13, 2011), report and recommendation adopted and approved by 2012 WL 1243226 (M.D. Pa. Apr. 12, 2012); see also, e.g., Blume v. U.S. Office of Pers. Mgmt., No. 4:07-CV-2231, 2008 WL 2101830 (M.D. Pa. May 16, 2008).
We find these prior decisions persuasive as a decision-making paradigm in this case. Here, OPM's concession that the administrative record is incomplete reveals that an adequate administrative record simply does not exist. Recognizing that "a reviewing court has inherent power to remand a matter to the administrative agency," Loma Linda Univ., 705 F.2d at 1127, and acknowledging the Supreme Court's guidance that, "[i]f the record before the agency does not support the agency action, if the agency has not considered all relevant factors, or if the reviewing court simply cannot evaluate the challenged agency action on the basis of the record before it, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation," Fla. Power & Light, 470 U.S. at 744, we conclude that this matter should be remanded for reconsideration by the agency and development of an adequate record for judicial review. See Pellicano, 2012 WL 1243226, at *2-*3; Pellicano, 2011 WL 7665934, at *4; Blume, 2008 WL 2101830, at *2.
Accordingly, it is recommended that OPM's motion to remand be granted with respect to claims Y15099009 (repair of shower commode chair) and Y16063002 (replacement of shower commode chair), and that further proceedings in this action with respect to these claims be stayed pending the outcome of the administrative process.
Claim Y15035005 concerns the cost of parts and repair of Pellicano's FES cycle ergometer. Pellicano submitted a claim for reimbursement of $84.46 in repair costs he had incurred. The Plan initially denied benefits on the ground that the equipment did not meet the Plan's definition of durable medical equipment, and thus the Plan afforded no coverage for these materials. Pellicano appealed to OPM.
On February 24, 2015, OPM wrote Pellicano to advise that the Plan had decided to exercise its discretion to authorize a one-time payment of $70.98 toward the repair parts, leaving Pellicano responsible for the remainder of $13.48. The letter further advised that, the matter having been resolved in his favor, OPM would be taking no further action on the appeal. In his complaint, Pellicano alleges that, on April 27, 2015, he appealed the Plan's benefit denial with respect to the remaining $13.48 to OPM. There is nothing in the complaint, its attachments, or the rest of the record before the Court to inform us of the ultimate disposition of Pellicano's appeal.
OPM has moved to dismiss on the ground that Pellicano's claim is non-cognizable under the FEHBA because the Plan exercised its discretion under a contractual provision authorizing it to pay health care benefits above and beyond those required by the Plan itself, but which further provided that any such discretionary benefit payments are outside the scope of the OPM disputed claims review process. (See Doc. 9, at 32-33, § 2.2(b)(2),(c)). As the February 24, 2015, letter stated:
(Doc. 1-1, at 18).
In articulating its position on this claim, OPM has framed Pellicano's claim as one challenging the Plan's decision to pay a portion of the cost of the repair parts — a discretionary decision by the Plan outside the scope of OPM's administrative review process. But because Pellicano is proceeding pro se in this action, we are obliged to liberally construe his pleadings and other papers. See generally Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244-46 (3d Cir. 2013). In contrast to OPM's construction of the claim, we construe it as a claim challenging the Plan's initial determination that Pellicano's FES cycle ergometer did not meet the Plan's definition of durable medical equipment, and thus coverage was not mandated by the Plan. While the Plan subsequently exercised its discretion to pay a portion of the cost of repair, it maintained its position with respect to whether it was required to provide benefits coverage for repair of the equipment, and it maintained its denial of coverage with respect to $13.48 of the costs incurred by Pellicano.
Based on the little information proffered with respect to this particular claim, we are simply unable to determine whether OPM considered all relevant factors or to otherwise evaluate the challenged coverage determination on the basis of the record before us. See Fla. Power & Light, 470 U.S. at 744. Moreover, as with the two claims concerning Pellicano's shower commode chair, we note that, based on the public record of prior litigation by Pellicano against OPM, this particular denial of coverage appears to be inconsistent with an earlier coverage determination finding the FES cycle ergometer at issue to be within the scope of durable medical equipment covered by Pellicano's health care benefits plan at that time. See Pellicano v. Office of Pers. Mgmt. Ins. Operations, 8 F.Supp.3d 618, 621-22 (M.D. Pa. 2014) (noting that insurance provider found FES cycle ergometer to be medically necessary and reimbursable, albeit only at a 65% of the cost — an allowance affirmed by OPM and challenged by Pellicano in federal court), aff'd per curiam, ___ Fed. App'x ___, 2017 WL 5125626 (3d Cir. Nov. 6, 2017).
Accordingly, it is recommended that OPM's motion to dismiss be denied with respect to claim Y15035005 (repair of FES cycle ergometer), that this claim be remanded to OPM for further consideration or explanation, and that further proceedings in this action with respect to this claim be stayed pending the outcome of the administrative process.
Claims Y15205005 and Y15126013 concern the cost of a supply of Enemeez-brand "mini-enema" product used in 2012 and 2013. OPM contends that these claims are time-barred because Pellicano failed to initiate this civil action within the time period permitted by regulation.
Pursuant to its authority under the FEHBA, see 5 U.S.C. § 8913, OPM has promulgated regulations establishing a detailed administrative procedure for resolving disputes over FEHBA benefits. Under these regulations, "[a] covered individual may seek judicial review of OPM's final action on the denial of a health benefits claim." 5 C.F.R. § 890.107(c). The regulations further provide that: "An action under paragraph (c) of this section to recover on a claim for health benefits . . . [m]ay not be brought later than December 31 of the 3rd year after the year in which the care or service was provided. . . ." Id. § 890.107(d)(2).
Under this regulation, a civil action for judicial review with respect to Pellicano's claim concerning his 2012 supply of Enemeez was required to be brought no later than December 31, 2015. Similarly, a civil action for judicial review with respect to Pellicano's claim concerning his 2013 supply of Enemeez was required to be brought no later than December 31, 2016. This action was filed on April 19, 2017, well after the limitation period established by 5 C.F.R. § 890.107(d)(2) had expired.
In response, Pellicano has failed to articulate any basis for equitable tolling of this limitation period.
Accordingly, it is recommended that OPM's motion to dismiss be granted with respect to claims Y15205005 (2012 Enemeez supply) and Y15126013 (2013 Enemeez supply), and that these claims be dismissed for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
For the foregoing reasons, it is recommended that:
1. OPM's motion to remand (Doc. 5) be
2. OPM's motion to dismiss (Doc. 6) be
3. Claims Y15205005 (2012 Enemeez supply) and Y15126013 (2013 Enemeez supply) be
4. Claims Y15099009 (repair of shower commode chair), Y16063002 (replacement of shower commode chair), and Y15035005 (repair of FES cycle ergometer) be
5. Further proceedings in this action be
