Michael Pellicano v. Office of Personnel Management

714 F. App'x 162
CourtCourt of Appeals for the Third Circuit
DecidedNovember 6, 2017
Docket14-2836
StatusUnpublished
Cited by6 cases

This text of 714 F. App'x 162 (Michael Pellicano v. Office of Personnel Management) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Michael Pellicano v. Office of Personnel Management, 714 F. App'x 162 (3d Cir. 2017).

Opinion

OPINION *

PER CURIAM

Michael V. Pellicano appeals from an order of the District Court granting judgment on the administrative record to the Office of Personnel Management (“OPM”). For the reasons that follow, we will affirm.

Pellicano is a retired federal employee who became disabled after suffering a spinal cord injury in 2002. In 2008, he purchased a piece of durable medical equipment, the RT300 Functional Electrical Stimulation cycle ergometer, for $20,697.00 from Restorative Therapies, Inc. (“RTI”) of Baltimore, Maryland. Medicare is his primary insurer and Medicare declined to reimburse Pellicano, finding that the FES cycle ergometer was non-covered exercise equipment. Pellicano, an enrollee in a federal employee health plan, see 5 U.S.C. § 8901 et seq., then sought reimbursement from his provider, CareFirst/Blue Cross Blue Shield. Initially the claim was denied as non-covered, but Pellicano sought reconsideration. A Reconsideration Specialist from CareFirst requested Pellicano’s treatment records, and, following a review of those records, a Plan Nurse Reviewer determined that the cycle ergometer was medically necessary within the meaning of Pellicano’s 2008 Service Benefit Plan. In 2009, CareFirst paid the claim, but only in the amount of $13,453,05, or 65% of the billed charges. Pellicano was advised that he was responsible for the Non-Allowed Amount of $7,243.95. 1

Pellicano again sought reconsideration, arguing that, based on specific language in the 2008 Plan, 100% of the billed charges should be covered. Also in support, he provided copies of two Explanation of Benefits forms, with identifying patient information redacted, which appeared to show that two other enrollees seeking reimbursement for the same piece of equipment had been reimbursed in 2006 and 2008 at a rate of 100%. The Plan’s Appeals Specialist reviewed the matter but upheld the carrier’s decision to reimburse Pellica-no at a rate of 65% only. Pellicano was advised that his interpretation of the Plan’s text was flawed because the Plan did not have a Usual, Customary, and Reasonable (UCR) amount established for the FES cycle ergometer, and therefore the reference to 100% in the Plan did not apply. 2 Pellicano also was advised that, as for the possibility that two other similarly-situated enrollees may have been reimbursed at a rate of 100% for their cycle ergometers, such reimbursement was not in accordance with his Plan.

Pellicano appealed to OPM, which oversees claims disputes under federal employee health benefit plans. OPM upheld Care-First’s decision to cover only 65% of the cost of the FES cycle ergometer.

Pellicano then filed a civil action pro se in the United States District Court for the Middle District of Pennsylvania against OPM, alleging that it acted arbitrarily and capriciously in upholding CareFirst’s decision to partially deny his claim for benefits. He sought damages in the amount of $7,243.95, the amount that he owes RTI. Prior to answering the complaint, OPM moved to remand the matter for further administrative proceedings, and to stay-further judicial proceedings pending the outcome of the administrative process. OPM asserted that the administrative record was incomplete because it did not contain a written internal policy that the local Blue Cross Blue Shield plan had in place that governed the calculation of payment relating to Pellicano’s insurance claim. In addition, OPM wished to seek further clarification from the carrier regarding the two Explanation of Benefits forms that Pellicano had submitted which appeared to show that two other enrollees seeking reimbursement for the same piece of equipment had been reimbursed at a rate of 100%. The District Court granted the request and the matter was stayed pending an administrative remand.

On remand, OPM reaffirmed its decision in a final agency decision dated July 24, 2012. In upholding CareFirst’s decision, OPM explained that, when claims are disputed, and individual consideration is given, as it was in Pellicano’s case, the Plan must price the claim on an individual basis, meaning that local Plan policies determine the allowance for an item that ordinarily is an exclusion of the policy. For the 2008 benefit period, according to the local plan, Individual Consideration pricing for a service or product by or from a non-participating provider was 65% of the billed amount. OPM also explained that, if in fact other similarly-situated enrollees were reimbursed at a rate of 100% for the FES cycle ergometer, such reimbursement was made in error because it was not in accordance with the Plan’s Individual Consideration pricing policy for 2008. OPM added to the administrative record a copy of the Plan’s policy for 2008 on Individual Consideration pricing, taken from the FEP [Federal Employee Program] Claims Processing Manual, It stated that, for durable medical equipment acquired prior to 2011, the allowance was 65% of the billed charge (and would drop to 55% if the date of service was after January 1,2011).

The District Court lifted the stay, reopened the civil action, and referred the matter to the Magistrate Judge. The Magistrate Judge ordered OPM to provide Pel-licano with a copy of the full administrative record, and the parties were directed to file cross-motions for judgment on the administrative record. Pellicano’s motion for discovery outside of the administrative record was denied. After full consideration of the administrative record, the Magistrate Judge recommended that judgment be granted in OPM’s favor because its actions in affirming CareFirst were not arbitrary and capricious. Pellicano submitted Objections to the Report and Recommendation, specifically objecting to the introduction into the record of the Plan’s policy for 2008 on Individual Consideration pricing. Pelli-cano argued that it should not have been considered because it was “self-serving and generated after the fact.” In an order entered on March 26, 2014, the District Court overruled the Objections, approved and adopted the Report and Recommendation, and granted judgment in favor of OPM. Among other things, the Court concluded that the Plan’s policy for 2008 on Individual Consideration pricing was properly made a part of the administrative record, and that Pellicano’s assertion that this item was not authentic was not supported by any evidence. Pellicano timely appealed. The District Court subsequently denied two motions for reconsideration.

We have jurisdiction under 28 U.S.C. § 1291 and will affirm the District Court’s order granting judgment to OPM. 3 The implementing regulations governing federal employee health benefits plans provide' for adjudication of disputes between en-rollees and health care benefit carriers by OPM, 5 C.F.R. § 890.105(a)(1), and permit aggrieved enrollees to bring civil actions in federal court, with OPM as the sole defendant in these civil actions, id. at § 890.107(c).

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714 F. App'x 162, Counsel Stack Legal Research, https://law.counselstack.com/opinion/michael-pellicano-v-office-of-personnel-management-ca3-2017.