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Whitford v. Horizon Blue Cross Blue Shield of New Jersey

United States District Court, D. New Jersey

May 29, 2018

ELLEN WHITFORD, Plaintiff,
v.
HORIZON BLUE CROSS BLUE SHIELD OF NEW JERSEY, Defendant.

          MEMORANDUM AND ORDER

          PETER G. SHERIDAN, U.S.D.J.

         Presently before the Court are cross-motions for Summary Judgment by Plaintiff Ellen Whitford and Defendant Horizon Blue Cross Blue Shield of New Jersey (ECF Nos. 14, 16). For the reasons discussed herein, BCBS's Motion for Summary Judgment is granted.

         Background

         This case arises from BCBS's refusal to authorize a particular treatment to Plaintiff, finding the procedure experimental. Plaintiff is a 64 year old woman, who works as a school nurse at The Rugby School, which provides a fully insured Horizon OMNIA plan. ("BCBS's Statement of Undisputed Facts [SUF]" at ¶¶ 1-2; ECF No. 1-2, "Plan").

         Like most insurance plans, the Plan here does not provide benefits for out-of-network services. (Id. at ¶ 3). Moreover, the Plan requires covered individuals to first receive BCBS's authorization before receiving particular services or treatment. (Plan at 100-06). Under this "utilization review, " a "plan administrator reviews a procedure before it is performed to determine whether it is 'medically necessary and appropriate' for treatment of the member's condition." (SUF at ¶ 8). The Plan also grants BCBS discretion in reviewing benefits claims. The Plan limits payment for benefits for "[s]ervices, in [BCBS's] judgment, are at the proper level of care" and reserves BCBS with "the right to require that care be rendered in an alternate setting as a condition of providing payment for benefits, " if it "determines that a more cost-effective manner exists." (Id. at 74, 75).

         The Plan also states that BCBS is to determine what is considered "medically necessary and appropriate" under the program. (Plan at 100). Notably, the services deemed to be "Experimental or Investigational Technology" are not considered medically necessary and appropriate. (Id. at 35). Under the Plan, a service is considered experimental or investigational if it fails to meet any of the following tests:

a. The Technology must either be: (a) approved by the appropriate federal regulatory agency and have been in use for the purpose defined in that approval; or (b) proven to Horizon BCBSNJ's satisfaction to be the standard of care....
b. There must be sufficient proof, published in peer-reviewed scientific literature, that confirms the effectiveness of the Technology. That proof must consist of well-designed and well-documented investigations. But, if such proof is not sufficient or is questionable, Horizon BCBSNJ may consider opinions about and evaluations of the Technology from appropriate specialty advisory committees and/or specialty consultants.
c. The Technology must result in measurable improvement in health outcomes, and the therapeutic benefits must outweigh the risks, as shown in scientific studies. "Improvement" means progress toward a normal or functional state of health.
d. The Technology must be as safe and effective as any established modality. (If an alternative to the Technology is not available, Horizon BCBSNJ may, to determine the safety and effectiveness of a Technology, consider opinions about and evaluations of the Technology from appropriate specialty advisory committees and/or specialty consultants.)
e. The Technology must demonstrate effectiveness when applied outside of the investigative research setting.

(Id. at 35). The Plan also provides a three-level appellate process, for which covered individuals can challenge Adverse Benefit Determinations. (Id. at 129). This process consists of: (1) "an informal internal review by Horizon BCBSNJ"; (2) "if the initial decision is upheld, a formal second level internal review by Horizon BCBSNJ"; and (3) an external appeal presided by the Independent Utilization Review Organization (hereinafter, "IURO"), which is binding on both parties. (Id. at 130-33). An external appeal is conditioned on first exhausting the first two internal reviews. (Id. at 133).

         In any event, on August 6, 2016, Plaintiff suffered an injury to her left elbow, the pain of which has affected her ability to use her left hand and perform everyday tasks. (Amended Complaint at ¶¶ 3, 5). In August and September 2016, Plaintiff consulted with Dr. J. Saleh, an in-network provider, who opined that she needed complex elbow reconstructive surgery and referred her to Dr. Michael Hausman, who handles such cases. (Id. at ¶ 6). The following month Dr. Hausman, an out of network provider, recommended that Plaintiff receive "combined ligament and radiocapitellar reconstruction" of her left elbow. (Id. at ¶ 10). The procedure, known as interposition anthroplasty, also required the use of an internal joint stabilizer device, which includes a base plate with three screws, a connecting arm, a locking joint, a boom arm and an axis pin. (Id. at ¶ 11). Plaintiff seeks to have this device inserted into her left elbow. This is a relatively new and innovative device that provides temporary stabilization of the elbow joint after chronic elbow dislocation. A surgeon employs an open lateral approach, to insert the device.

         After consulting with Plaintiff, on November 10, 2016, Dr. Hausman wrote to BCBS to receive preauthorization to perform the described procedure. (SUF at ¶ 19). On December 16, 2016, BCBS denied Dr. Hausman's request, finding the proposed procedure to be "experimental or investigational." (ECF No. 9-2, "December 16, 2016 Letter"). Specifically, the letter explained that "the use of internal joint stabilizer in elbow reconstruction is considered investigational. . . . There is insufficient literature to support the use of the requested device." (Id.). The letter also provided Plaintiff with two in-network elbow surgeons and noted that Plaintiff may appeal this determination. (Id.). In ...


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