United States District Court, M.D. Florida, Orlando Division
REPORT AND RECOMMENDATION
GREGORY J. KELLY UNITED STATES MAGISTRATE JUDGE.
cause came on for consideration without oral argument on the
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.
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.
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.
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 ¶¶
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.
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 ¶ 20. On May 12, 2016,
Plaintiff provided ...