Zalduondo v. Aetna Life Ins. Co., Civil No. 10–1685 (RCL).

941 F.Supp.2d 125

Carolina ZALDUONDO, Plaintiff,

v.AETNA LIFE INSURANCE COMPANY, Defendant.

Civil No. 10–1685 (RCL).

United States District Court, District of Columbia.

April 25, 2013.

Denise Marie Clark, Clark Law Group, Washington, DC, for Plaintiff.

Bryan D. Bolton, Michael Edward McCabe, Jr., Funk & Bolton, P.A., Baltimore, MD, for Defendant.

MEMORANDUM OPINION

ROYCE C. LAMBERTH, Chief Judge.

Plaintiff Carolina Zalduondo brought this ERISA suit against defendant Aetna Life Insurance Company, alleging denial of benefits and the improper refusal to pay for her hip arthroscopy at Aetna's in-network rate. Before the Court is Aetna's Motion for Summary Judgment, Sept. 24, 2012, ECF No. 37. Upon consideration of the defendant's motion, the plaintiff's Opposition, Oct. 16, 2012, ECF No. 43, the defendant's Reply thereto, Oct. 26, 2012, ECF No. 47, the applicable law, and the record herein, the Court will deny Aetna's motion without prejudice and instruct Aetna to supplement the administrative record with the official Plan documents.

I. BACKGROUND

Zalduondo participated in WPP Group USA, Inc.'s self-funded employee healthcare benefit plan (“the Plan”). Def.'s Statement of Undisputed Material Fact in support of its Mot. Summ. J. ¶¶ 2, 5, ECF No. 38 (“Def.'s SUMF”); see Pl.'s Am. Compl. ¶¶ 4–7, ECF No. 5. WPP Group is the Plan sponsor and administrator; however, Aetna, pursuant to an Administrative Services Agreement (“ASA”) with WPP Group, is a service provider to the Plan that administers and adjudicates claims for benefits under the Plan. Def.'s SUMF ¶¶ 8–9; Pl.'s Am. Compl. ¶ 9; see ASA, AR ¹ 120–58, ECF No. 40. According to the Summary Plan Description (“SPD”) for the WPP Group USA, Inc. Benefit Plan, WPP Group “delegated to Aetna the discretionary authority to construe and interpret the terms of the Plan, and to make final, binding determinations concerning availability of benefits under the Plan.” AR 248; see Def.'s SUMF ¶¶ 15–18; Pl.'s Statement of Material Facts to which Genuine Issues Exist ¶ 2, ECF No. 43–1 (“Pl.'s SDMF”); Pl.'s Am. Compl. ¶ 10. However, the SPD is prefaced by the following, clearly identified, disclaimer:

Please note that this SPD describes benefits provided under a portion of the WPP Group USA, Inc. Benefits Plan. The information provided in this SPD is not intended to be a complete description of every detail of the WPP Group USA, Inc. Benefits Plan and the official plan documents (collectively, the “Plan Documents”). The benefits described herein are governed by the underlying Plan Documents. Accordingly, if there is a discrepancy or conflict between this SPD and the Plan Documents, then the Plan Documents will govern. The official Plan Documents are always controlling over any statement made in this SPD or by any employee of WPP, you[r] Employer, Aetna Life Insurance Company, or any other administrator. Benefits described in this SPD are not insured with Aetna or any of its affiliates, but will be paid from the Employer's funds. Aetna and its affiliates provide certain administrative services under the Plan.

AR 167; Pl.'s SDMF ¶ 6. Aetna did not include the Plan documents in the administrative record, and redacted Appendix I of the proffered ASA, which is referenced several times in the ASA as providing a description of the Plan. See Pl.'s SDMF ¶ 3; AR 120, 121, 130.

A. Zalduondo's Medical Treatment

Zalduondo alleges she began experiencing “severe pain in her hip” in 2009, for which she pursued medical treatment. Pl.'s SDMF ¶ 21; Def.'s SUMF ¶ 28. On August 21, 2009, Zalduondo consulted with Dr. Terri McCambridge, an in-network provider. See AR 77. Dr. McCambridge ordered an MRI of Zalduondo's distressed hip, and the report revealed two labral tears. Id. Dr. McCambridge referred Zalduondo to Dr. Andrew Wolff, an out-of-network orthopedic surgeon, for arthroscopic hip surgery. Def.'s SUMF ¶ 31; Pl.'s SDMF ¶ 23 (not disputing Def.'s SUMF ¶ 31). Six days later, Zalduondo contacted Aetna to request precertification for Dr. Wolff's services at the in-network benefit rate, claiming “there were no in-network physicians who could provide her surgery.” Pl.'s SDMF ¶ 26; Def.'s SUMF ¶ 32. On September 16, after receiving notice that Aetna denied her precertification request and prior to appealing that determination, Zalduondo elected to undergo arthroscopic hip surgery performed by Dr. Wolff. See Def.'s SUMF ¶¶ 33–39; Pl.'s SDMF ¶ 31 (not disputing the surgery but arguing she first consulted in-network providers listed by Aetna); Def.'s Reply ¶ 2. Following her surgery, Zalduondo received Explanations of Benefits (“EOBs”) indicating certain charges relating to the surgery were not payable either because “(1) [Zalduondo] failed to obtain precertification for services provided by a non-participating provider ( i.e., Dr. Wolff); (2) the charges were not reasonable and appropriate; and/or (3) the charges were for or connected with services or supplies considered by Aetna to be experimental or investigational.” Def.'s SUMF ¶ 41 (internal citations omitted) (not disputing Pl.'s Amend. Compl. ¶ 29).

B. Aetna's Claim Adjudication

Zalduondo contacted Aetna prior to undergoing surgery in order to request that services performed by Dr. Wolff be covered at the in-network benefit rate. Def.'s SUMF ¶ 32; Pl.'s Opp'n 5; AR 81. On September 1, 2009, Aetna Medical Director Dr. Richard Fornadel denied the request for coverage at the in-network preferred benefit level, noting that the reason ² for denial was that “services are available from participating providers.” AR 81. The letter provided the names and contact information for three participating providers that allegedly offered the requested services and directed Zalduondo to Aetna DocFind, an online directory where Zalduondo could find additional participating providers. Id. Additionally, the letter stated, in bold text:

Your benefit plan includes an out-of-network benefit component for the use of non-participating providers. If you elect to use the services of the above mentioned non-participating provider, your out-of-network non-preferred benefit level will apply.

In order for you to receive the in-network preferred benefit level of coverage, either you or an Aetna participating provider must obtain prior coverage approval.

Id. The letter went on to disclose the availability and process of appeals to the adverse benefits determination. AR 82–83.

Zalduondo appealed Aetna's claim determination on October 1, 2009, stating that “none of the in-network/participating providers in my designated area ... were viable options.” AR 67. Zalduondo's appeal admitted that she received Aetna's letter on September 7, prior to undergoing surgery, and that she carefully investigated the in-network physicians listed in the letter only to find that two of the three did not perform hip arthroscopy and the remaining provider, Dr. John N. Delahay, “appear[ed] to have no/limited experience with arthroscopic hip surgery ... clearly establishing a lack of qualification.” AR 67–68. Zalduondo requested that the claim determination be overturned because, after exploring “all of the participating providers in [her] designated area,” she “established that none ... are viable options due to either no longer practicing, not practicing [arthroscopic hip surgery] or not being viable options to provide [arthroscopic hip surgery].” AR 68. Zalduondo attempted to clarify what she meant by “viable option,” stating that, for her, “it was of the utmost importance ... to be treated by an orthopaedic that has performed a sufficient number of arthroscopic hip surgeries.” AR 69. Absent in Zalduondo's three-page appeal is any mention of a challenge to a determination that her procedure was not medically necessary. See AR 67–69.

On November 18, 2009, Aetna sent Zalduondo a letter in response to her first-level appeal. AR 85. In its Level 1 Appeal Decision, Aetna twice clarified that the appeal was about “the denial of in-network preferred benefit level for health care services provided by Dr. Wolff.” Id.Aetna claimed to have reviewed “all available information,” including “[Zalduondo's] appeal letter, the operative report, Aetna Patient Management file, DocFind and WPP Group USA, Inc.'s Summary Plan Description.” Id. Aetna upheld its previous determination because it found available participating providers who could have performed Zalduondo's requested healthcare services, including Drs. Mark Zawadsky and Brian Evans. Id. Aetna further informed Zalduondo that she could request a second level appeal by forwarding to Aetna, within sixty days, any relevant material she wished Aetna to consider along with her request. AR 86.

On January 8, 2010, Zalduondo requested a second level appeal of Aetna's coverage determination. AR 88. Zalduondo stated she was “not satisfied with Aetna's ongoing decisions regarding coverage in this matter, including but not limited to Aetna's decision stated in the November 18, 2009[,] appeal resolution letter.” Id. Zalduondo reiterated her opaque intent by stating she wished to appeal “several of Aetna's more recent decisions regarding coverage in this matter.” Id. Despite this apparent attempt at initiating a new appeal of an unidentified coverage determination, Zalduondo stated the letter “serve[d] as [ her] official request for a second level appeal;” however, on the same page she requested an extension “for filing [her] second level appeal.” Id.

Aetna responded to Zalduondo on January 27, 2010, with a letter entitled “Final Appeal Decision,” in which it again upheld its decision to deny in-network benefits for out-of-network services due to the availability of in-network providers to treat Zalduondo's condition. AR 99. Aetna specifically referenced the availability of Dr. Mark Zawadsky. Id. Aetna's letter made no reference to the request for an extension nor did it address Zalduondo's intent to expand the scope of her appeal. See id.

On February 4th,...