Advanced Physicians, S.C. v. Conn. Gen. Life Ins. Co.

• Court: U.S. District Court — Northern District of Texas
• Writing for the Court: A. JOE FISH Senior United States District Judge
• Decision Date: 08 July 2021
• Docket Number: CIVIL ACTION NO. 3:16-CV-2355-G
• Citation: Advanced Physicians, S.C. v. Conn. Gen. Life Ins. Co., CIVIL ACTION NO. 3:16-CV-2355-G (N.D. Tex. Jul 08, 2021)
• Parties: ADVANCED PHYSICIANS, S.C., Plaintiff, v. CONNECTICUT GENERAL LIFE INSURANCE COMPANY; CIGNA HEALTH AND LIFE INSURANCE COMPANY; CIGNA HEALTHCARE MANAGEMENT, INC.; GREAT-WEST HEALTHCARE-CIGNA and NFL PLAYER INSURANCE PLAN, Defendants.

ADVANCED PHYSICIANS, S.C., Plaintiff, v. CONNECTICUT GENERAL LIFE INSURANCE COMPANY;CIGNA HEALTH AND LIFE INSURANCE COMPANY; CIGNA HEALTHCARE MANAGEMENT, INC.;GREAT-WEST HEALTHCARE-CIGNAand NFL PLAYER INSURANCE PLAN, Defendants.

CIVIL ACTION NO. 3:16-CV-2355-G

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

July 8, 2021

MEMORANDUM OPINION AND ORDER

Before the court are the cross-motions for summary judgment of the plaintiff Advanced Physicians, S.C. ("Advanced") (docket entry 220) and the defendants Connecticut General Life Insurance Company, Cigna Health and Life Insurance Company, Cigna Healthcare Management, Inc., and Great-West Healthcare-Cigna (collectively "Cigna"), and NFL Player Insurance Plan (the "Plan") (docket entry 218), as well as the defendants' motion to strike portions of Advanced's summary judgment evidence (docket entry 235). For the reasons set forth herein, Advanced's motion for summary judgment is denied, Cigna's motion for summary judgment is granted, and Cigna's motion to strike is granted in part and denied in part as moot.

I. BACKGROUND

A. Factual Background

1. The Parties

The plaintiff, Advanced, is a Chicago area medical clinic that employs medical doctors, chiropractors, and physical therapists, offering diagnostic and treatment services to patients. See Advanced's Appendix at 2, ¶ 5 (docket entry 231); Brief in Support of Defendants' Motion for Summary Judgment ("Cigna's Motion") (docket entry 227) at 2. Advanced began treating retired National Football League ("NFL") players in 2007. Advanced's Appendix at 3, ¶ 8. As of the date of these cross-filings, Advanced has treated over 180 retired NFL players. See Cigna's Motion at 15.

The NFL Player Insurance Plan is an employee benefit plan governed by the Employee Retirement Income Security Act ("ERISA"), providing medical benefits to current and former NFL players ("Participants"). See Cigna's Motion at 2; Advanced's Brief in Support of Summary Judgment ("Advanced's Motion") (docket entry 230) at 5. The Plan is funded by the NFL Players Insurance Plan Trust, which is in turn funded by NFL member clubs. See Advanced's Appendix at 55, ¶ 1.86; Cigna's Appendix at 16 (docket entry 228). The Plan authorizes the appointment of a plan administrator to administer plan benefits. See Advanced's Appendix at 46, ¶1.1. The Plan also authorizes participants to assign their claims to health care providers who may then make claims directly to the Plan. See Cigna's Motion at 4. Many retired NFL players have assigned their claims to Advanced, and Advanced now seeks payment for those services via this suit.

Connecticut General Life Insurance Company was the first designated administrator of the plan. See Advanced's Motion at 5. That responsibility was later assigned to Cigna, which remains the plan administrator. See id. at 5-6. Among other responsibilities, Cigna processes claims for benefits submitted under the Plan. See Cigna's Motion at 2; Advanced's Motion at 5-6.

2. Plan Details and Procedures

Pursuant to Department of Labor regulations, participants in the plan are given a Summary Plan Description ("SPD") explaining and summarizing benefits, coverage, and plan administration. See Cigna's Appendix at 7; Advanced's Appendix at 354. Both Advanced and Cigna cite the SPD and refer to it as the Plan.

The SPD explains what the Plan does not cover, including "charges for an Injury resulting from your employment or occupation." Advanced's Appendix at 397. Occupational injury is defined as "an accidental bodily injury which arises from, or is complicated by, any employment or occupation for compensation or profit." Cigna's Appendix at 852. The Plan further states "[a] Covered Medical Expense shall mean any of the charges listed below . . . but only if such charges are Medically Necessaryand are not incurred in connection with an Occupational Disease or an Occupational Injury." Id. at 864. The Plan also states "[t]he Trustees will have full and absolute discretion, authority and power to interpret, control, implement, and manage the Plan and the Trust. Such authority includes . . . the power to: . . . Delegate its power and duties to other persons . . . including . . . professional plan administrators . . . ." Id. at 877-78. "[T]he Claims Administrator shall be a Plan fiduciary with full discretionary authority to interpret the Plan and resolve all questions, including questions of fact." Id. at 878. Thus, the power to determine whether claims were being made for occupational injuries-and ultimately whether a claim is payable-was delegated to Cigna.

In order to receive benefits under the plan, participants submit claims to Cigna and, unless otherwise specified, reimbursement for the service charge is paid directly to the participant.¹ See Advanced's Appendix at 422; Cigna's Motion at 4. Cigna processes the claim and sends the participant an Explanation of Benefits ("EOB") explaining whether the claim was paid, the reason for any non-payment, and other related information. See Cigna's Appendix at 411; Advanced's Appendix at 424. Similarly, health care providers (such as Advanced) are given an Explanation of Payment ("EOP") which explains a provider's review and appeal rights. See Cigna'sAppendix at 431-438. The EOBs, EOPs, as well as the SPD, include information about appeal rights and procedures. See id. at 411-14. The "rights of review and appeal-for physician or health care provider" section of the EOP states "[i]f you have questions or disagree with the payment identified on this Explanation of Medical Payment Report, you may ask to have it reviewed." Id. at 437. The EOPs also contain a "rights of review and appeal - for employee" section, further explaining how to appeal a claim denial. Id. The EOPs reference the EOBs and SPD for specific appeal procedures. See id. It appears undisputed that Advanced never received the SPD directly from Cigna. See Advanced's Motion at 26-28; Brief in Opposition to Plaintiff's Motion for Summary Judgment ("Cigna's Response") (docket entry 239) at 11-12.

Participants may appeal claim denials and adverse claim determinations. Advanced's Appendix at 425. Appeals "must be received by the appropriate Cigna entity within 180 days of receipt of the denial notice." Id. According to the SPD, appeals are "reviewed and the decision made by someone not involved in the initial decision. Appeals involving a determination of Medically Necessary or clinical appropriateness will be considered by a health care professional." Id. The Plan also provides for a second level of review if the initial determination is upheld but involves medical judgment: "[i]f you are not fully satisfied with the decision and the appeal involves medical judgment, you may request that your appeal be referred to anIndependent Review Organization ('IRO')." Id. at 426. If the benefit determination on appeal is adverse, the participant is provided with a notice that includes the reasons for the adverse determination as well as information about the participant's "right to bring an action under ERISA section 502(a)." Id. Participants must exhaust all administrative remedies available under the plan before filing a suit in federal court. See id. at 429-30.

3. Advanced's Claims Under the Plan and Chronology of Events

Advanced began treating retired NFL players in 2007. See Advanced's Motion at 5; Cigna's Motion at 8. In August, 2014, one of Cigna's account representatives, Patrick Gilroy ("Gilroy"), referred claims from Advanced to Cigna's Special Investigation Unit ("SIU") because of what he believed were unusual practices, specifically a large amount of medical imaging. See Advanced's Appendix at 534; Cigna's Motion at 8. The SIU opened an investigation into Advanced on August 21, 2014. Advanced's Appendix at 534. Sean Petree ("Petree") was assigned as the investigator. See id. at 532.

The case was originally referred to the SIU on suspicion that Advanced was billing for unnecessary medical imaging. Petree, along with another investigator, Angelica Branon ("Branon"), began the investigation and analysis on that basis. See Cigna's Appendix at 462. Between December 2014 and February 2015, Petree and Branon reviewed Advanced's billing records and the medical records of a smallsampling of patients. See id. On January 14, 2015, Branon noted in a "Pre-Case Investigative Summary of Findings" that, on the basis of her analysis, she recommended closing the case. See id. In that same note, however, she acknowledged that the data she reviewed "showed the NFL as the client with the highest amount paid." See id. Petree also conducted his own data queries in order to "determine if [Advanced] may be targeting a specific account." Id. at 1571. Petree concluded that "an abnormally high percentage of this provider's exposure was due to one account, in this particular case the NFL." Id.

On January 20, 2015, Petree and Branon held a meeting with Kate Shaker ("Shaker"), an employee of Health Care Fraud Shield ("HCFS"). The case was left open in part because Shaker agreed with Petree and Branon that Advanced was billing for an unusually high number of MRIs and x-rays per day of service. See id. at 462. Petree and Branon decided to have HCFS review the medical records. See id.

On February 23, 2015, Petree emailed his superior, Aneta Andros, stating in part "I reviewed the medical records for [Advanced] and found that they were quite comprehensive . . . The number of x-rays and MRI's ordered still looks very excessive . . . The vast majority of [Advanced's] exposure is due to the NFL, however these records appear to document (and potentially justify) each of the diagnostic services billed." Advanced's Appendix at 537.

HCFS delivered its review of Advanced's records in April 2015. See Cigna'sAppendix at 461, 464-65. In the report, HCFS noted, among other observations, that the injuries treated by Advanced "occurred while playing college and professional contact...