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Nail v. Government Employees Health Association, Inc.

United States District Court, M.D. Florida, Orlando Division

April 23, 2018

DANNY NAIL, Plaintiff,
v.
GOVERNMENT EMPLOYEES HEALTH ASSOCIATION, INC., Defendant.

          REPORT AND RECOMMENDATION

          GREGORY J. KELLY UNITED STATES MAGISTRATE JUDGE.

         This cause came on for consideration without oral argument on the following motion:

MOTION: MOTION TO DISMISS OR, ALTERNATIVELY, MOTION FOR SUMMARY JUDGMENT (Doc. No. 44)

FILED: January 4, 2018

THEREON it is RECOMMENDED that the motion be GRANTED IN PART AND DENIED IN PART.

MOTION: PLAINTIFF'S MOTION TO STRIKE ALL OR PART OF DEFENDANT, U.S. OFFICE OF PERSONNEL MANAGEMENT'S, REPLY TO PLAIN[TI]FF'S RESPONSE TO MOTION TO DISMISS, OR ALTERNATIVELY, MOTION FOR SUMMARY JUDGMENT (Doc. No. 55)

FILED: April 5, 2018
THEREON it is RECOMMENDED that the motion be DENIED AS MOOT.

         I. PROCEDURAL HISTORY.

         On October 26, 2017, Plaintiff filed a Third Amended Complaint against Defendant based on Defendant upholding the denial of Plaintiff's request for health insurance coverage for a prostate ablation. Doc. No. 1. On January 4, 2018, Defendant filed its “Motion to Dismiss or, Alternatively, Motion for Summary Judgment” (the “Motion”). Doc. No. 44. On January 30, 2018, Plaintiff filed his response to the Motion. Doc. No. 48. On March 20, 2018, Defendant, after receiving the Court's permission, Doc. No. 53, filed its reply to the response. Doc. No. 54. On April 5, 2018, Plaintiff filed a motion to strike the reply (the “Motion to Strike”). Doc. No. 55. On April 17, 2018, Defendant filed its response to the motion to strike the reply. Doc. No. 56.

         II. FACTS.[1]

         The Government Employees Health Association (“GEHA”) issued a health insurance policy to Plaintiff. Doc. No. 32 at ¶¶ 3, 6. Plaintiff was diagnosed with a prostate tumor and localized prostate cancer, and on February 4, 2016, submitted a pre-authorization request for a prostate ablation to eradicate and remove the tumor using Sonablate High Intensity Focused Ultrasound (“HIFU”). Id. at ¶ 10.

         “[O]n March 29, 2016, GEHA received a fax from ‘JoAnne C', a case analyst for the Medical Review Institute of America (‘MRIoA'), purporting to find that Plaintiff[]'s, HIFU procedure was not approved and/or covered under the GEHA Policy.” Id. at ¶ 14. The MRIoA representative, in evaluating Plaintiff's request for preauthorization, purportedly fully analyzed the following information in sixty minutes:

(1) [Plaintiff's] February 4, 2016 email; (2) billing information; (3) a March 23, 2015 letter reviewing Sonablate; (4) a February 2, 2016 letter of medical necessity; (5) [Plaintiff's] March 25, 2016 letter with attached medical records; (6) an October 5, 2015 MRI report regarding [Plaintiff's] prostate; (7) a January 21, 2016 MRI fusion and USG prostate report; (8) a January 21, 2016 prostate, biopsy report; (9) a March 23, 2016 MRI report regarding [Plaintiff's] prostate; and, (10) selected language chosen by GEHA to reflect “Plan language”.

Id. at ¶ 15. Also within that sixty-minute period, the MRIoA representative researched, analyzed and relied upon seven “References;” answered five questions Defendant submitted; and conducted a conflict-of-interest analysis. Id. at ¶¶ 16, 17.

         On March 30, 2016, GEHA denied the pre-authorization request, stating that an outside consultant found that the HIFU procedure was not medically necessary and the current evidence on the procedure's use in cancer patients was “of low quality, rendering it difficult to draw conclusions about its efficacy.” Id. at ¶ 28. Plaintiff alleges that GEHA did not use an outside consultant to determine coverage and that the MRIoA representative “has a long-standing relationship with GEHA, but [the representative] did not conduct an independent or thorough analysis about the matter under review before rendering her ‘opinion', she merely made a determination that fit GEHA's desired result.” Id. at ¶ 19.

         On May 5, 2016, Plaintiff sent a letter to GEHA stating the following: (1) “why the HIFU procedure was medically necessary for his condition and need for the prostate ablation; (2) . . . that he had already provided multiple pathology opinions and medical records confirming the medical necessity of the HIFU procedure; and, inter alia, (3) attached documented evidence that rebutted the benefits determination made in the March 30, 2016 letter . . . .” Id. at ΒΆ 20. On May 12, 2016, Plaintiff provided ...


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