Henry L. Rojas, M.D., Mitchell K. Rosen, M.D., & H&L Rojas M.D., P.C. v. Cigna Health & Life Ins. Co.
| Decision Date | 28 September 2018 |
| Docket Number | No. 14-CV-6368 (KMK),14-CV-6368 (KMK) |
| Parties | HENRY L. ROJAS, M.D., MITCHELL K. ROSEN, M.D., and H & L ROJAS M.D., P.C., d/b/a/ ROJAS AND ROSEN M.D., Plaintiffs, v. CIGNA HEALTH AND LIFE INSURANCE COMPANY, and CONNECTICUT GENERAL LIFE INSURANCE COMPANY, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Appearances:
Harold J. Levy, Esq.
Quadrino Law Group P.C.
Melville, NY
Counsel for Plaintiffs
Andrew Levchuk, Esq.
Bulkley, Richardson and Gelinas, LLP
Springfield, MA
Counsel for Defendants
Defendants Cigna Health and Life Insurance Company ("Cigna") and Connecticut General Life Insurance Company ("Connecticut General") (collectively, "Defendants") bring these Counterclaims against Plaintiffs Henry L. Rojas, M.D. ("Rojas"), Mitchell K. Rosen, M.D. ("Rosen"), and H & L Rojas, M.D., P.C., doing business as Rojas and Rosen M.D. ("Rojas and Rosen M.D.") (collectively ("Plaintiffs"), alleging fraud, unjust enrichment, money had and received, and breach of contract. (See Am. Counterclaims (Dkt. No. 91).) Plaintiffs have moved for summary judgment on all of Defendants' counterclaims. (See Dkt. Nos. 97-100.) For the reasons to follow, Plaintiffs' Motion is granted in part and denied in part.
In resolving Plaintiffs' Motion for Summary Judgment, the Court will recite only either undisputed facts or those set forth by Defendants and supported by the record. The Court will not, except as noted, set forth Plaintiffs' version of the facts where disputed.
Plaintiffs Henry L. Rojas, M.D., Mitchell K. Rosen, M.D., and H & L Rojas, M.D., P.C., doing business as Rojas and Rosen M.D., are a New York professional medical corporation and the practicing physicians in that medical practice. Rule 56.1 Statement ( ) Defendants Cigna Health and Life Insurance Company and Connecticut General Life Insurance Company ("Cigna") are nationwide health insurers, headquartered in Connecticut. .)
On or around December 4, 2008, Cigna entered into a Physician IPA Services Agreement with Columbia Affiliated Physicians IPA, LLC ("Columbia IPA"). (Decl. of Andrew Levchuk ("Levchuk Decl.") Ex. 5 (the "Agreement") 10 (Dkt. No. 107).) That agreement became effective on January 1, 2009 and has been in effect since that date. (Id. at 1.) Plaintiffs were Professional Providers under Columbia IPA, and therefore became professional providers with Cigna pursuant to the above-referenced agreement; they provided healthcare services to Cigna Plan participants, and were paid directly by Cigna for those services. (Levchuk Decl. Ex. 2 ("O'Donnell Decl.") ¶¶ 3-4.) Plaintiffs thereafter executed Change of Affiliation Forms with Columbia Affiliated Physicians IPA, LLC, in September 2009, which meant that Plaintiffs wished to participate in Cigna exclusively through Columbia Affiliated Physicians IPA, LLC,and thereafter agreed that reimbursement for treatment to Cigna Plan participants would be limited to Covered Services, as defined in the Agreement. (O'Donnell Decl. ¶¶ 6, 8.)
This case centers on medical services conducted by Rojas and Rosen M.D. between October 20, 2010 and July 15, 2013. Cigna reimbursed Rojas and Rosen M.D. $844,334.52 for the services at issue. .)
On September 13, 2013, Dr. Daniel J. Nicoll, Cigna's National Medical Director for Fraud and Abuse, advised Plaintiffs that, pursuant to the Agreement, Cigna was "conducting a 'medical claim audit,' and requested that Plaintiffs provide patient records and comments concerning certain laboratory and electro-diagnostic testing." .) According to Dr. Nicoll, his "request for medical records had been prompted by the Special Investigations Unit's review of Dr. Rosen's claims and identification of the unusual amount and frequency of Dr. Rosen's submission of charges for blood tests for suspected allergies." (Levchuk Decl. Ex. 3 ("Nicoll Decl.") ¶ 5.)
According to Cigna, the problems the Special Investigations Unit discovered with the Plaintiffs' claims for reimbursements for the in vitro allergy testing were as follows. First, Cigna claims that Dr. Rojas and Dr. Rosen used the incorrect billing code for these tests. (Defs.' 56.1 Resp. ¶ 12.) Medical providers use specific codes, known as Current Procedural Technology ("CPT") codes. (Nicoll Decl. ¶ 3.) CPT codes "are a method of describing a service explicitly so that both the billing entity and the paying entity understand precisely the service provided." (Id. ¶ 3.) According to Cigna, the Agreement required Rojas and Rosen to use one of the two CPT codes corresponding to skin-testing, (id. ¶ 6), or the one CPT code that is typically used by healthcare providers who bill blood tests for suspected allergies, (id. ¶ 9). Indeed, Defendants contend that the code under which Plaintiffs billed Cigna for the test conducted did not actuallyreflect the testing done, as the code reflected complement testing, while the test performed was a complement antigen test, not just a complement test, which included the testing of both IgG, an Immunoglobulin, and complement. (Defs.' 56.1 Resp. ¶¶ 69, 71; see also Levchuk Decl. Ex. 8 ("Piquette Report") 1-2.)1
Defendants also claim that Dr. Rojas and Dr. Rosen billed the same 132-panel test repetitively on multiple occasions for seven patients, as opposed to subsequently conducting more focused testing after receipt and review of the initial test results. (See Nicoll Aff. ¶ 10.) This, Defendants claim, was surprising because it "would have expected to see either no subsequent testing of the same blood panel test if the initial test results had been negative, or more focused allergy testing if the initial test results had been positive, rather than the same panel of 132 suspected allergies[,]" and because Plaintiffs "always billed the same panel test for their patients, which would not seem to account for variations in clinical history of each individual plaintiff." (Levchuk Decl. Ex. 7 ("Canto Decl.") ¶ 5.)
Additionally, Defendants claim that Plaintiffs' allergy testing practices violated their policies. Specifically, Cigna almost exclusively requires the much cheaper skin allergy tests to be conducted, and only allows for in vitro allergy testing under "very restricted circumstances, such as for patients who have severe skin conditions, who cannot be withdraw[n] from medications that interfere with skin testing, who have a clinical history of high risk of anaphylaxis for skin testing, or who have mental or physical impairments." (Id. ¶ 6.) Accordingto Cigna, had Rojas and Rosen M.D. conducted skin testing and billed the skin testing correctly, the practice would have been reimbursed a total of $1,784.64 to $2,147.64 per 132-panel allergy test; instead, Rojas and Rosen M.D. billed $7,920.00 for each 132-panel in vitro allergy test. (Nicoll Decl. ¶ 6.) In fact, it was later discovered that Plaintiffs had purchased the test kits from Brendan Bioscience, LLC for between $425 and $500, but had billed Cigna for $7,920—a price mark-up of approximately 1700%. (See Levchuk Decl. Ex. 13 ("Rosen Dep.") at 131-32, 152-53; Nicoll Decl. ¶ 5.)
Plaintiffs responded to the September 13, 2013 request for information about these billing and claim practices on September 16, 2013. .) Dr. Nicoll reviewed Plaintiffs' response, and he determined that Plaintiffs had violated the billing and claims practices for the reasons discussed above. (See Nicoll Decl. ¶¶ 6-9.) Dr. Nicoll then wrote to Plaintiffs on October 18, 2013, listing areas of concern in Plaintiffs' billing practices and stating that "[f]ailure to cooperate [with Cigna's Quality Management and Utilization Management programs] will result in termination of the Cigna contracts for [Plaintiffs]." .)
On or around November 7, 2013, Cigna wrote to Plaintiffs and demanded a repayment for the entire amount paid for the services at issue, $844,334.52. .) That letter stated that a medical claim audit determined that Plaintiffs' practice was overpaid in the amount of $844,334.52 and requested that Plaintiffs reimburse Cigna for the claims paid "in error."
Then, on June 23, 2014, William J. O'Donnell, Vice President of Network Management for Cigna, informed Plaintiffs in writing that it was terminating the Agreement with Rosen and Rojas M.D. effective August 22, 2014 due to "[a] consistent pattern of providing services notconsistent with our standards of medical necessity and a billing pattern that does not accurately reflect the actual services provided." .) Plaintiffs did not appeal the termination, but rather chose to file this Action. (Defs' 56.1 Resp. ¶ 22.) According to Plaintiffs, the Agreement was not terminated due to fraud, but was merely done based upon Plaintiffs' failure to reimburse Defendants pursuant to the Agreement. (Pl.'s 56.1 ¶ 22.) Plaintiffs note that the official reason given for the termination was "[a] consistent pattern of providing services not consistent with our standards of medical necessity and a billing pattern that does not accurately reflect the actual services provided." (Id. ¶ 24 (emphasis and internal quotation marks omitted).) Defendants dispute this characterization, arguing that fraud was indeed the core reason for termination. Defendants note that they had previously filed a fraud report with the New York Department of Insurance on November 15, 2013, , which was based on Plaintiffs' alleged misrepresentation of services rendered pursuant to the Agreement, (Fraud Referral). This misrepresentation of services was...
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