S.M. v. Oxford Health Plans (N.Y.), Inc.

• Decision Date: 23 March 2015
• Docket Number: No. 12 Civ. 4679ER.,12 Civ. 4679ER.
• Citation: 94 F.Supp.3d 481
• Parties: S.M., Plaintiff, v. OXFORD HEALTH PLANS (N.Y.), INC., a/k/a Oxford Health Insurance, Inc.; Oxford Health Plans, LLC; United Healthcare Services, Inc.; and UnitedHealth Group Incorporated, Defendants.
• Court: U.S. District Court — Southern District of New York

94 F.Supp.3d 481

S.M., Plaintiff

v.OXFORD HEALTH PLANS (N.Y.), INC., a/k/a Oxford Health Insurance, Inc.; Oxford Health Plans, LLC; United Healthcare Services, Inc.; and UnitedHealth Group Incorporated, Defendants.

No. 12 Civ. 4679ER.

United States District Court, S.D. New York.

Signed March 23, 2015.

Charles Matays The Law Offices of Charles Matays PLLC, Gabriel Adam Berg, Kennedy Berg LLP, New York, NY, for Plaintiff.

Richard A. Ross, Erin Marie Secord, John F. Kapacinskas, Fredrikson & Byron, P.A., Minneapolis, MN, for Defendants.

OPINION AND ORDER

RAMOS, District Judge.

Plaintiff S.M.¹ brings this action under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq., against Oxford Health Plans (N.Y.), Inc., a/k/a Oxford Health Insurance, Inc. (“Oxford”), Oxford Health Plans, LLC (“Oxford LLC”), United Healthcare Services, Inc. (“United Healthcare”), and UnitedHealth Group Inc. (“UnitedHealth”), (collectively, “Defendants”). Plaintiff, who was diagnosed with non-Hodgkin's lymphoma, claims that Defendants wrongfully denied her coverage for Gamunex, an immune-boosting drug prescribed by her oncologist. In particular, Plaintiff maintains that Oxford's determination that Gamunex was not “medically necessary” in her case was improper and constituted a violation of ERISA.

Presently before the Court are the parties' cross-motions for summary judgment, both made pursuant to Federal Rule of Civil Procedure 56, and Plaintiff's motion to sever. See Docs. 66, 67. For the reasons discussed below, Plaintiff's motion for summary judgment is DENIED, and Defendants' motion for summary judgment is GRANTED. Plaintiff's motion to sever is DENIED.

I. Background²

The following facts are undisputed except where otherwise noted.

A. Plaintiff's Medical Condition

In September 2008, Plaintiff was diagnosed with non-Hodgkins lymphoma. Defs.' Counterstatement Facts, Doc. 80 at ¶ 2. Since then, she has been treated by Dr. Janet Cuttner (“Dr. Cuttner”), an oncologist at Mount Sinai Hospital. Id. at ¶ 3. As part of Plaintiff's treatment, she has been treated with a drug called Rituxan.³ Id. at ¶ 4.

In August 2011, Dr. Cuttner diagnosed Plaintiff with an upper respiratory infection ; the following month, Plaintiff was diagnosed with severe pneumonia. Id. at ¶¶ 6–7. In response, Dr. Cuttner prescribed Intravenous Immunoglobulin (“IVIG”) treatment in the form of the drug Gamunex. Pl.'s Counterstatement Facts, Doc. 77 at ¶ 11. Gamunex consists of a solution containing antibodies to help fight infections. Id. at ¶ 12. It is used to treat, inter alia, autoimmune and immune deficiency disorders and may be administered to increase the gammaglobulin levels in patients with immune deficiencies, such as those whose immune systems are compromised as a result of undergoing chemotherapy. Id. at ¶ 12; see also Doc. 80 at ¶ 10. The instant litigation concerns Oxford's denial of coverage for Plaintiff's Gamunex treatment in 2011.

B. Plan Terms

In 2011, Plaintiff was covered by an Oxford healthcare plan entitled Freedom Plan Metro (“the Plan”) which qualified as “an employee welfare benefit plan” as defined by ERISA, 29 U.S.C. § 1002(1).⁴ Doc. 77 at ¶¶ 1–2; Doc. 80 at ¶ 5. The Plan provides that a beneficiary will receive “Covered Services” when it is: (1) medically necessary; (2) properly referred/pre-certified, when required; and (3) while the beneficiary's coverage is still in force. Doc. 77 at ¶ 2, see also Oxford 000202. Under the Plan, Oxford has discretion to deny coverage for any health care service that it determines, in its “sole judgment,” to be medically unnecessary. Id. at ¶ 3; see also Oxford 000212. The term “medically necessary” is defined by the Plan to include a service or supply which, as determined by its medical director, is: (1) “[c]onsistent with the symptoms or diagnosis and treatment” of the member's condition; (2) “[a]ppropriate with regard to standards of good medical practice[;]” (3) not for the sole convenience of the member or a provider; and (4) “[t]he most appropriate supply or level of service which can safely be provided.” Oxford 000228; see also Doc. 77 at ¶ 3. The Plan goes on to state that “[u]nless otherwise indicated ... determinations as to Medical Necessity are made by Us, and such determinations are solely within Our discretion.” Id.; see also Doc. 77 at ¶ 3.

After a member receives an initial adverse determination, she may challenge the administrator's determination by utilizing what the Plan refers to as the Utilization Review (“UR”) Appeals process. Oxford 000162. The UR Appeals process provides for either “two levels of internal review” or “one level of internal [r]eview and one level of [e]xternal [r]eview by an outside clinical reviewer.” Id. The Plan states that medical necessity determinations which result in a denial will be made by “appropriate clinical personnel,” specifically, a “clinical peer reviewer.” Oxford 000159. Although the Plan does not define who constitutes a clinical peer reviewer for the purposes of an initial adverse determination, it does provide a definition with respect to an internal appeal. When an internal UR Appeal is involved, a clinical peer reviewer is either: “a Physician with a current and valid non-restricted license to practice medicine;” or “a health care professional (other than a licensed Physician) ... in the same professional and same or similar specialty as the Provider who typically manages the medical condition or disease [.]” Oxford 000162. Requests that are eligible for an external appeal “will be randomly assigned to a Certified External Appeal Agent[.]” Oxford 000167. At the external appeal level, a clinical peer reviewer is a licensed Physician who “is board certified or board eligible in the same or similar specialty as the Provider who typically manages the medical condition or disease, or provides the health care service or treatment under Appeal;” and “has been practicing in such an area of specialty for a period of at least five years and is knowledgeable about the Health Care Service or treatment under Appeal.” Oxford 000162.

Under the Plan, a member is responsible for providing, “to the extent possible, information that [Oxford] professional staff need in order to care for” the member. Oxford 000185, 000223; see also Doc. 77 at ¶ 5. In making medical necessity determinations, the administrator may request additional information from the member's provider and will deny coverage if such additional information is not received within forty-five days of its request. Oxford 000159; see also Doc. 77 at ¶ 5.

Plaintiff's request for Gamunex coverage was also governed by Oxford's specific policy on IVIG treatment coverage.⁵ Doc 69 at ¶ 7. The policy states that the documentation required for medical director review of an initial request for IVIG treatment coverage consists of: (1) the diagnosis; (2) office notes indicating the patient's history, failure of conventional therapy, and lab work supporting the need for IVIG; and (3) “clinically significant functional deficiency of humoral immunity as evidenced by documented failure to provide antibodies to specific antigens and a history of recurrent infections.”⁶ P–00050. Medical director review of a request for continuation of therapy requires additional information documenting: (1) “an objective response to therapy[;]” (2) “the medical condition under treatment has not fully resolved[;]” (3) “a sustained beneficial response to treatment[;]” (4) the “expected frequency and duration of proposed IVIG treatment[;]” (5) “[t]itration to the minimum dose and frequency to maintain a sustained clinical effect;” and (6) serum immunoglobulin levels prior to therapy for certain diagnoses. Id. The policy explicitly provides that initial approvals are for a period of three months, unless otherwise noted. Id.

C. Plaintiff's Application for Benefits

On September 15, 2011 Dr. Cuttner submitted Plaintiff's first request for coverage of Gamunex treatment to Oxford. Doc. 80 at ¶ 13. On the same day, Oxford requested additional information from Plaintiff to process her claim. Doc. 80 at ¶ 12. In a letter dated September 16, 2011, Oxford informed Plaintiff of its decision to deny coverage. Doc. 77 at ¶ 14, Doc. 80 at ¶ 13. The letter explained that Oxford usually covers IVIG treatment for certain types of problems, such as an immune deficiency, and for repeat bacterial infections. Oxford 000075. It also stated that a member's doctor must show that the patient “cannot make antibodies against immunizations or common bacteria.” Id. The letter concluded, “[t]he information sent in does not show that you meet these criteria.” Id. The medical necessity determination was made by one of Oxford's medical directors, Dr. Bruce Lundblad. Doc. 80 at ¶ 13. Plaintiff requested an expedited appeal of the decision on September 19, 2011. Doc. 77 at ¶ 15.

Dr. Lundblad called Dr. Cuttner on September 21, 2011. Doc. 77 at ¶ 16, see also Doc. 80 at ¶ 16. Based on his conversation with Dr. Cuttner, Dr. Lundblad changed his initial determination to allow for coverage of Plaintiff's Gamunex treatment. Id. at ¶ 19. In Dr. Lundblad's notes contained in Plaintiff's Individual Authorization Report (“IAR”), he documented that Dr. Cuttner informed him that Plaintiff has a history of non-Hodgkins lymphoma, severe pneumonia, and some previous infections which were not documented. Oxford 000019. He further noted, “[w]ill change my determination because request at least nearly meets criteria and because of history of recent severe bilateral pneumonia.”⁷ Id. The next day, on September 22, 2011, Dr. Lundblad made a new entry in Plaintiff's IAR, stating: “Additional note: My decision to approve IVIG is only for 3 months. For renewal or continuation, additional clinical information will be required.”⁸ Oxford 000019. Plaintiff's Gamunex therapy was covered by Oxford from late September through late November 2011. Doc. 80 at ¶ 22.

On November 22, 2011, Dr....