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Failure to Exhaust Excused on the Basis of Futility – D. Co.

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  • Failure to Exhaust Excused on the Basis of Futility – D. Co.

    Failure to Exhaust Excused on the Basis of Futility – D. Co.

    Attached hereto is a case out of the District of Colorado, Concilio v. Cigna Health and Life Insurance Company. In this case, plaintiff seeks health insurance benefits for a lumbar fusion. One of her physicians, Dr. Cain, submitted a preauthorization request to defendant for the surgery. Defendant denied the claim, and the denial letter outlined appeal procedures, which included either a written or telephonic appeal. After receiving the denial letter, Dr. Cain had a telephonic “peer to peer” conversation with defendant’s medical director who denied the claim. The telephone conversation did not change the medical director’s opinion, however, no formal appeal of the preauthorization denial was submitted by Dr. Cain. Plaintiff sought two other separate medical opinions and preauthorizations, all of which defendant denied. Plaintiff filed suit. Part of the court’s analysis focuses on whether or not Dr. Cain exhausted administrative remedies. Plaintiff argued that Dr. Cain was excused from exhausting administrative remedies because it would have been futile to do so. The court agreed.

    Concilio argues that Drs. Cain and Mobley’s authorization requests are not separate claims subject to exhaustion. Instead, she asserts that their requests and recommendations are identical to those made and appealed by Dr. Rauzzino, and therefore make up the same claim for benefits. Concilio also argues that any administrative appeal of these denials would be futile because Cigna has a blanket policy of never authorizing multilevel procedures for degenerative disc disease.

    Concilio’s first argument is unavailing. The Plan provides for an appeal process in the event Cigna makes an adverse decision as to the medical necessity of a requested clinical procedure. (AR at 128-31.) This process includes a mandatory appeal and a voluntary independent review. (Id.) Plan participants are expressly warned that “[i]n most instances, you may not initiate a legal action against Cigna until you have completed the Complaint or Adverse Determination Appeal process.” (AR at 131.) Drs. Cain and Mobley were informed how to initiate an appeal after their preservice authorization requests were denied. (AR at 420-21; 576-78.) They chose not to do so. Only Dr. Rauzzino requested an appeal and, when that failed, an independent review. (AR at 452-54; 528.)

    Not only did Drs. Cain and Mobley not abide by the terms of the Plan, the Court agrees with Cigna that while the procedure requested by the three physicians is the same, the circumstances surrounding the requests were not identical. Dr. Cain’s request for the two-level fusion came approximately one year before Dr. Mobley’s. This passage of time alone gives the Court pause, especially because Dr. Cain noted on Concilio’s first visit that the “natural course of this type of back pain is that most patients get better on their own within three months.” (AR at 413.) Moreover, during that time, Concilio received further treatment, including the discography and epidural injections. Most importantly, Dr. Mobley’s diagnosis was different than that of Drs. Cain and Rauzzino. Dr. Mobley diagnosed Concilio with spondylolisthesis (i.e., spinal instability) (AR at 548), while the other doctors failed to note any instability. (AR at 409; 406; 430.) Thus, the recommendations and requests of the doctors are not part of the same claim for the purposes of administrative exhaustion.

    Nevertheless, the Court agrees with Concilio that the failure to exhaust administrative remedies as to Dr. Cain’s request can be excused as futile in this case. The Tenth Circuit stated in an unpublished decision, “We agree with the Seventh Circuit’s approach to evaluating a claim of futility and hold that in order to satisfy the futility exception to the exhaustion requirement, plaintiff must establish that ‘it is certain that his claim will be denied on appeal, not merely that he doubts that an appeal will result in a different decision.’”Rando v. Standard Ins. Co., 182 F.3d 933 (10th Cir. 1999) (table) (quoting Lindemann v. Mobil Oil Corp., 79 F.3d 647, 650 (7th Cir. 1996)) (brackets omitted). While this decision is not binding, Judge Martinez has found that the bar for showing futility is high. See Arapahoe Surgery Ctr., LLC v. Cigna Healthcare, Inc., 171 F. Supp. 3d 1092, 1110 (D. Colo. 2016).

    The Court finds that Concilio has cleared this high bar as to Dr. Cain, but not as to Dr. Mobley. The Plan excludes from coverage “experimental, investigational or unproven services.” (AR 108.) The Plan defines “experimental, investigational, or unproven services” to be services that are, among other things, “determined by the utilization review Physician to be ‘not demonstrated, through existing peer-reviewed, evidence based, scientific literature to be safe and effective for treating . . . the condition or sickness for which its use is proposed.’”Id. Cigna’s Lumbar Fusion Medical Coverage Policy considers “lumbar fusion for treatment of multiple-level (i.e., >1 level) degenerative disc disease” to be “experimental, investigational, or unproven.” (AR at 245.) Thus, the Plan does not cover multilevel lumbar fusions for degenerative disc disease. Significantly, though, the Plan does cover this procedure for spondylolisthesis. (AR at 242-43.)
    In the end, the court ruled in defendant’s favor, finding that it did not abuse its discretion in denying plaintiff’s claim.
    Attached Files