Opinion
Civ. Action No. 3:99-CV-2380-X.
May 17, 2000.
MEMORANDUM OPINION AND ORDER
Before the Court are Plaintiffs' Application for a Preliminary Injunction and Brief in Support filed November 16, 1999, Defendants' Response, filed November 22, 1999, Plaintiffs' Reply filed November 29, 1999, and Defendants' Surreply, filed November 30, 1999. Also before the Court are Plaintiffs' Trial Brief, filed December 8, 1999, Defendants' Response, filed December 13, 1999, Plaintiffs' Reply, filed December 17, 1999 and Defendants' Surreply filed December 20, 1999.
For the reasons discussed below, Plaintiffs' Application for a Temporary Injunction is GRANTED in part and DENIED in part.
PRELIMINARY INJUNCTION STANDARD
The sole issue presented by an application for a preliminary injunction is whether the Court should extend the temporary restraining order previously entered pending a trial on the merits. The showing necessary to obtain a preliminary injunction comprises four factors: (1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable injury if the injunction is not issued; (3) that the threatened injury outweigh any damages the injunction might cause; and (4) the injunction will not disserve the public interest. DSC Communications Corp. v. DGI Technologies, Inc., 81 F.3d 597, 60 (5th Cir. 1996). As the Court finds that elements two, three and four are clearly satisfied, this opinion addresses only the Plaintiff's likelihood of success on the merits.
INTRODUCTION
This is a heart wrenching case. Both sides acknowledge that Susan Miles and her son Willie "Boo" Searcy are in a terrible connundrum. Nevertheless, this Court is not permitted to take into account the tragedies of life in arriving at a legal conclusion. "[I]t is the duty of all courts of justice to take care, for the general good of the community, that hard cases do not make bad law." United States v. Clark, 96 U.S. 37, 49 (1877) (Harlan, J. dissenting). Therefore, this Court has taken "particular care to ensure that [its] legal analysis is not influenced by the plaintiff[s'] unfortunate health, even though the outcome may pinch the emotions." Cathey v. Dow Chem. Co. Med. Care Program, 907 F.2d 554, 555 (5th Cir. 1990).
BACKGROUND
In early 1993, Boo suffered severe head and spinal cord injuries which rendered Boo a quadriplegic. Boo is a C-2 quadriplegic who cannot even breath without the assistance of a medical device known as a ventilator. This device, although portable, is inserted in his trachea. Should this device fail to function properly, Boo has minutes for someone to 1) notice the malfunction (this is so because as Boo is incapable of breathing on his own, he cannot summon the air required to call out for help if his ventilator ceases to function) and 2) remedy the situation either by fixing the ventilator or manually "bagging" him until help arrives.
Boo also suffers from autonomic dysreflexia ("dysreflexia"), a condition unique among patients with this severe of a spinal cord injury ("SCI").
Dysreflexia is an abnormal response to a problem or stimulus in the body below the point of an SCI. The condition is most likely to occur if an SCI is at or above the 6th thoracic vertebra, which [Boo's] injury is. In lay person's terms, dysreflexia occurs when there is a stimulus to the body below the level of the injury and the intended message cannot get to the brain through the normal routs because it is interrupted by the injury. In an effort to apprize the brain that something painful or otherwise stimulating is going on, the impulse takes an alternative route, through the sympathetic chain, which is part of the autonomic nervous system. This in turn causes a rise in blood pressure that will steadily worsen until the stimulus is eliminated. Ordinarily a dysreflexic response is triggered by something that someone not suffering from quadriplegia would sense as pain.Watts v. Organogenesis, 30 F. Supp.2d 101, 103 (D.Mass. 1998). Additionally, Boo requires tracheal suctioning, and bowel and bladder management, among other things.
Until September, 1999, when Boo turned 21, Medicaid supported his medical needs. Now however, medicaid covers only 34 hours per week as opposed to the 109 hours per week he was receiving. As a result of aging out of the Medicaid program, Medicaid informed Miles that she must find private insurance to cover the lost 75 hours per week or medicaid would discontinue funding any portion of Boo's treatment. Faced with this daunting and probably terrifying situation, Miles searched for alternative funding sources. Miles is employed by University of Texas Southwestern Health Systems ("UTSHS"). It is undisputed that Miles is covered under the UTSHS group health benefit plan ("the Plan"). Miles made a claim for her son under the Plan.
This Court is incredulous at the government's willingness to kick this mother when she is down, however, no party challenges the validity of Medicare's ruling.
During the two day hearing held by this Court, Miles testified passionately about her desire to keep her son at home. The Court takes judicial notice of the fact that Miles is the exception to the rule in these types of cases. It would be much "easier" on everyone involved to send Boo away to a home and "let everyone get on with their lives." Miles is a mother clearly dedicated to her children and their well being.
In September, 1999, UTSHS' medical director, Stuart Rosenberg, denied Miles' claim for services on the sole basis that Boo's care is "custodial" in nature and that "custodial care" is an excluded service under the plan. Rosenberg, in an apparent effort to mitigate the shock of his denial, agreed to fund Boo's care for an additional thirty days while Miles sought an alternative.
Dr. Rosenberg also serves as CEO, and Plan Administrator for the Plan. Although UTHP is the designated Plan Sponsor, Dr. Rosenberg admits on numerous occasions that he, for all relevant purposes is the Plan Sponsor.
Miles, along with Boo's doctors, attempted to appeal Rosenberg's decision. This fiasco is detailed below, but suffice it to say that the appeal was poorly handled, misrouted, and misdirected. Fearing the worst, and having no appellate decision to deal with, the Plaintiffs filed for a Temporary Restraining Order which this Court granted on October 10, 1999. The Court held a two day hearing on November 29, 1999, during which the parties argued the merits of their cases.
APPLICABLE LAW
The Employee Retirement Income Security Act of 1974 ("ERISA") 29 U.S.C. § 1001, et seq. governs this case. ERISA creates a federal cause of action to recover benefits under employee welfare and pension plans. See 29 U.S.C. § 1132(a)(1)(B) (West. 1999). ERISA broadly preempts state law, both legislative and judicial. Mackey v. Lanier Collection Agency Serv., Inc. 486 U.S. 825 (1988). In interpreting ERISA, Congress intended for courts to develop a federal common law. In re HECI Exploration Co., 862 F.2d 513, 523 (5th Cir. 1988).
EXHAUSTION OF PROCEDURAL REQUIREMENTS
Compliance with ERISA appeals processes are usually jurisdictional. Central States Southeast and Southwest Pension Fund v. T.I.M.E.-DC, Inc., 826 F.2d 320, 328-29 (5th Cir. 1987). Therefore, although apparently neither party raises the issue, the Court first examines Miles' compliance with the Plan's appeals process or lack thereof
The Appeals process is detailed on page 90 of the Plan booklet and provides a three step appeals process. In summary, the steps are as follows. First, the claimant may call the Service Administrator to attempt an informal resolution of the problem. Second, if the claimant is not satisfied with the informal appeal, he/she may submit a "writing to the Service Administrator to reconsider the claim." Plan Booklet at 90. Third, if the claimant is still not satisfied, he/she may submit an appeal to the Plan Sponsor. The Plan sponsor will then submit the appeal to the UT Southwestern Health System Claims Review Committee. The booklet further states that the decision of the UT Southwestern Health Systems Claim Review Committee is "final." Given the current circumstances, "final" is an interesting term.
In any event, during the course of the hearing, the Defendants admitted that Dr. Rosenberg constituted a majority of the appeals procedure. He is the Alpha and the Omega. Rosenberg made the original denial as the Service Administrator and later denied the claim at the first, "informal" appellate level. He also serves as Chairman of the Claims Review Committee. Further, the Claims review committee is not a "standing committee" but rather an ad hoc committee put together on an as needed basis by its, you guessed it, Chairman. It is not unfair to suggest that this appeals procedure is more than a little bit suspect.
The story doesn't end here. When Miles asked where she should file her appeal, John Humanski, a representative of the Texas University Health Plan, informed Miles that the Employee Group Insurance ("EGI") in Austin is the proper party. This instruction was in clear contradiction to the policy manual. Miles and Boo's doctors each forwarded their documentation, letters and professional opinions to EGI. Then, in late September, 1999, Miles, attempting to determine the appeal's status, contacts Ms. Anne Wegner at EGI. Wegner informs Miles that she does not handle the appeal but will get someone to call her back. Miles again contacts Humanski and tells him that EGI does not have the appeal. Humanski calls Miles back the next day and informs her that Kathleen Pantalion at EGI is handling the appeal. Miles immediately calls Pantalion, leaving a voice message. The following day, an unidentified person calls Miles to inform her that EGI does not handle appeals for UTSHS. Whereupon Miles calls Vicki Heggen at UTSHS to determine the appropriate appeals process. Heggen informs Miles that there is no appeal because Dr. Rosenberg's decision is final. A grander case of "the run around" has never been seen. If this were a straight insurance rather than an ERISA case the stink of bad faith would be unbearable. The Defendants sheepishly concede that mistakes abound in the appeals process. Perhaps this is why they do not contest the filing of this suit on those grounds.
Regardless, courts recognize that the procedures requiring the exhaustion of administrative appeals prior to filing suit in federal court are intended to further significant legislative policies including: 1) avoiding interruption of administrative procedures; 2) allowing the appropriate factual background to be developed by the agency or organization with expertise; 3)allowing the agency to apply its discretion or expertise; 4) promoting increased agency efficiency; 5) conserving judicial resources; 6) allowing an agency or organization to realize and correct its own error and; 7)discouraging "end runs" around administrative procedure. Central States Southeast and Southwest Pension Fund, 826 F.2d at 328-29. "Like most judicial doctrines, the requirement of exhaustion of administrative remedies is subject to numerous practical exceptions which result from the efforts of the courts to balance the rights of the claimants against the substantial policy factors favoring the rule." Id. However, these exceptions are applicable only in extraordinary circumstances. Id. (citing Republic Indus. v. Central Pa. Teamsters Pension Fund, 693 F.2d 290, 294 (3rd Cir. 1982); see also Turner v. Fallon Comm. Health Plan, Inc. 127 F.3d 196, 200 (1st Cir. 1997); Watts v. Organogenesis, Inc. 30 F. Supp.2d 101 (D.Mass. 1998). Such an exception applies where the remedy is either inadequate or creates a risk of serious injury. Id. at 329; Watts, 30 F. Supp. at 104.
Applying this rule is certainly warranted here. Boo Searcy is a quadriplegic. He requires substantial care to live. Terminating round the clock health care clearly creates a risk of serious injury — death. Additionally, given the incompetent manner in which Boo's appeal was handled, combined with Dr. Rosenberg's position of power and authority throughout the appellate process, this Court also finds that the appeals process utilized by the plan in this case was fatally flawed and utterly inadequate. Consequently, Plaintiffs' failure to exhaust their administrative remedies is excused and this Court has jurisdiction to decide the controversy before it.
STANDARD OF REVIEW
In their pleadings and at oral argument, the parties hotly contested the appropriate standard of review. Plaintiffs contend that a de novo standard applies while Defendants contend the proper standard is abuse of discretion. To find a de novo standard appropriate, the Court must find that the plan does not grant the plan administrator discretion to interpret the plan. See Wildbur v. ARCO Chem Co., 974 F.2d 631 (5th Cir. 1992). Although the Court has deep reservations as to the discretion conferred by the plan, the outcome of this case is equal regardless of the standard applied. The Court reviews the administrators decisions, both factual and interpretive, under an abuse of discretion standard. See Vega v. National Life Insurance Services Inc., 188 F.3d 287, 295 (5th Cir. 1999).
ANALYSIS
Although the parties contested many issues at the hearing, the only decision Rosenberg actually made during the course of his review was that Boo's care is custodial. Custodial care is not covered by the plan. Plaintiffs, of course, dispute that Boo's care is custodial. Additionally, although there was some confusion at the hearing as to whether Boo's care required the services of a skilled nurse, Rosenberg freely admits during his deposition testimony that in at least "some specific" instances, skilled nursing care is required. Rosenberg clearly abused his discretion, both in determining the facts and in interpreting the plan. The Court reviews each issue in turn.
Factual Determinations
Factual determinations are always reviewed under an abuse of discretion standard. See Meditrust Fin. Servs's. Corp. v. Sterling Chems, Inc., 168 F.3d 211, 213 (5th Cir. 1999) ("Regardless of the administrator's ultimate authority to determine benefit eligibility, however, factual determinations made by the administrator during the course of a benefits review will he rejected only upon a showing of an abuse of discretion."). In reviewing for an abuse of discretion in factual conclusions, the Court must uphold the Plan administrator if the determination was "supported by substantial evidence." Meditrust, 168 F.3d at 215. Further, the court should overrule the plan administrator only where the decision was "made without a rational connection between the known facts and the decision or between the found facts and the evidence." Id. Dr. Rosenberg's decision that the requested benefits constitute "custodial care" is a factual determination because it involves a review of the facts contained in the medical records submitted to the administrator and a determination of whether or not there was factual support for this claim.
Dr. Rosenberg's determination that Boo's requirements were custodial in nature was an abuse of discretion. Dr. Rosenberg, a internist specializing in rheumatology, testified that he reviewed the records submitted by Miles as part of her original claims process for a total of 15-20 minutes before making the decision to deny her claim based on the custodial care provision contained in the plan. Rosenberg Depo. at 30. The documents reviewed by Rosenberg consisted of (1) his review form, (2) several fax cover sheets, (3) a computer printout, (4) a "Home Health Care certification and Plan of Care", (5) a five year old evaluation of Searcy by his former physician and; (6) a copy of several Plan pages. Deft's Ex. 16. Based on these six documents, three of which had nothing to do with Boo's medical care or needs, Dr. Rosenberg concluded that Boo's care was custodial. Confronted about this limited review, Dr. Rosenberg stated that the claimants submit additional evidence through the appeals process. Specifically, Rosenberg said: "The appeals process is a way to get additional information from all professionals caring for the patient. . . . [and] if there [was] additional information, it could come forward in [the appeals process]. Rosenberg Depo. at 67. Of course, in this case, there was no appeal. Dr. Rosenberg, by practically admitting that he knew there was additional evidence he failed to review, made his decision "without a rational connection between the known facts and the decision. . . ." Meditrust, 168 F.3d at 215. Had an appeal been properly administered, the result may have been different. Rosenberg abused his discretion.
It is interesting to note that a comment contained in the computer printout includes the statement that "[i]f[Searcy's claim] is denied. . . . medicaid will pay for custodial issues." Deft's Ex. 16, at 4.
Significantly, a recent determination, also made by a health care maintenance organization administrator, that the requirements of a ventilator dependent patient are custodial in nature resulted in the Texas Board of Medical Examiners suspending that administrator's license to practice medicine. United Healthcare v. Levy, No. 3:00-CV-569-M (N.D. Tex. March 15, 2000). If such a decision can result in the Board suspending a doctor's license, surely it constitutes an abuse of discretion.
A. Custodial Care
Having decided that the Plan Administrator abused his discretion, this Court now examines for itself the correct interpretation of "Custodial Care." The Plan defines Custodial Care as
care which is not primarily for therapeutic value in the treatment of a Sickness or Injury and is: (I) provided primarily for the maintenance of the Covered Person; and (2) which is essentially designed to assist the Covered person in the activities of daily living.
Plan at 8. This is a two part test. First the court must determine if Boo's medical treatment is primarily therapeutic. If it is, the analysis turns to consider whether or not the care primarily provides maintenance or assistance in daily living activities. If Boo's care meets these two tests, it falls outside the bounds of Custodial Care.
Therapeutic
"Therapeutic" is not defined in the Plan. STEADMAN'S MEDICAL DICTIONARY defines therapeutic as: "Relating to therapeutics or to the treatment, remediating, or curing of a disorder or disease." STEADMAN'S MEDICAL DICTIONARY, (26th ed. 1995), It is also useful to acknowledge Dr. Rosenberg's own personal definition: "Therapeutic would be the treatments or Intervention that is designed primarily to improve — cure or improve the patient's condition. In other words, there's anticipation that the condition can be improved upon." Rosenberg Depo. at 41.
Searcy suffers from quadriplegia. It is stipulated that, at this time, his condition is incurable. Defendants contend that the disputed services cannot be expected to improve Searcy's underlying condition — quadriplegia — and therefore they are not therapeutic. Plaintiffs argue that quadriplegia is not the injury they seek coverage for. As noted above, Boo's medical problems are numerous, including autonomic dysreflexia and being ventilator dependent. It is these conditions Plaintiffs assert can be remediated, if not cured, by treatment. Plaintiffs are correct.
Dr. Wuermser is Boo Searcy's treating physician. She is a specialist in spinal cord injuries. Even a short conversation with Dr. Wuermser would have provided Dr. Rosenberg with a considered medical opinion by a treating physician as to the therapeutic value of Boo's medical care:
Q. The treatment of autonomic dysreflexia and the treatment for Boo's inability to breathe are two of the major components of his treatment plan, are they not?
A. They're the two that I consider to be of the most importance because they are life threatening.
Q. In the context of his whole care plan, those are the two major components?
A. Correct.
Q. Given that those are therapeutic-
A. From a skilled standpoint. Obviously, everything else is very, very important . . . but from a medical standpoint, yes.
Q. Given that those are the two major components of this care plan, wouldn't you say that his entire care plan is primarily therapeutic?
. . . .
A. Yes.
Wuermser Depo. at 117-118.
Further, Dr. Rosenberg's own words spell doom for the Defendants' position:
Q. And assume with me that [Boo] goes into respiratory distress and requires medical attention, and he recovers from his respiratory distress. Now, would you call the medical attention he received primarily therapeutic?
A. The care did not have to be administered by a nurse. I mean, it could have been provided by whoever provided it, given that someone provided it. It improved his condition temporarily and that would be therapeutic.
. . . .
Q. . . . lets say that Boo Searcy's toes get cramped up in his shoe and causes his blood pressure to rise and that, in turn, leads to an emergency situation for Boo. Now, if the person who is caring for him, whether it be a nurse or somebody else, recognizes the situation and remedies it, would the care that they provided be therapeutic?
A. Again, this is hypothetical to Boo, but if that happens, whoever is the primary care giver is there to assist him would be therapeutic. There are many examples of that: a child with bad asthma, severe asthma, on multiple medications, if they get into trouble, they need someone to assist them with their medications and an evaluation, usually done by a parent. And if that helps, I guess it is therapeutic.
Rosenberg Depo. at 42-43 (emphasis added).
It is laughable to contend that the care given to Boo Searcy, that is, ventilator assisted breathing and monitoring and treatment of autonomic dysreflexia, is not therapeutic. Without a ventilator, Boo will die. A ventilator keeps him alive. The ventilator remediates Boo's inability to breathe. Similarly, without someone to monitor Boo for dysreflexia, Boo is at a significantly increased risk of stroke and heart attack. Treating dysreflexia requires someone to recognize the onset and act to treat the stimulus, be it a sharp object, an impacted bowel or a urinary tract infection. Failure to render this treatment could result in death. Clearly treatment for dysreflexia is therapeutic in nature. It does not cure it, but it certainly remediates it. Although some of Boo's other problems may be custodial in nature, the majority of his care is primarily for therapeutic value in the treatment of a sickness or injury.
Maintenance and Activities of Daily Living
Having determined that the primary purpose of Boo's home health care regimen is therapeutic, the Court now examines whether that care is provided primarily for maintenance and is essentially designed to assist him in the activities of daily living. The Court concludes that Searcy's regimen is not essentially designed to maintain and assist him in the activities of daily living.
It is unquestionable that some of the services currently performed for Searcy are custodial in nature. Feeding, bathing, and getting in and out of bed each clearly fall into that category. However, the only way that his primary care, particularly that of ventilation and dysreflexia treatments, could be considered maintenance care is if keeping Searcy alive is considered maintenance. Dr. Wuermser testified credibly about the dangers to Boo's health if this care is terminated. Boo's "life span will be shortened dramatically." Wuermser Affidavit, at 2. Consequently, although these procedures and treatments allow Boo to continue to live, they are not "activities of daily living." As such, Boo's care is not Custodial in nature.
B. Skilled Nursing Care
Much like "Custodial Care," "Skilled Nursing Care" is a factual determination that is always reviewed under an abuse of discretion standard. Meditrust Fin. Servs. Corp. v. Sterling Chems, Inc., 168 F.3d 211, 213 (5th Cir. 1999). In other words, determining whether Searcy requires Skilled Nursing does not require a Wildbur analysis, see Wildbur v. ARCO Chemical Co., 974 F.2d 631 (5th Cir. 1992) (discussing the requirements to find that a Plan Administrator abused his discretion in interpreting the plan), but requires only a finding that the determination that Boo did not require skilled nursing was supported by "substantial evidence." Meditrust, 974 F.2d at 213.
Not only was there not substantial evidence, there was no evidence on this issue at all, Having concluded that Searcy required Custodial care, Dr. Rosenberg never evaluated Searcy's nursing needs to determine if the needs constituted skilled care. Rosenberg Depo. at 44. Rosenberg does admit, however, that at least some functions of Searcy's care "need to be performed by a skilled nurse." Rosenberg Depo. at 50. Given that Rosenberg committed an abuse of discretion in determining the Custodial Care issue, it necessarily follows that his failure to consider Searcy's skilled nursing needs is also an abuse of discretion. At least one other court found that the exact conditions from which Searcy suffers require skilled nursing care, See Watts v. Organogenesis, 30 F. Supp.2d 101 (D.Mass. 1998) (finding that the treatment of autonomic dysreflexia and the bodily processes which might cause an onset, including waste functions, necessitated the presence of a skilled nursing professional to deal with those occurrences). Further, Dr. Wurmser, through both testimony and affidavit, asserts that "[v]entilatory care is a skilled need which requires the assistance of a trained professional such as an experienced nurse, . . . . [that] treatment of autonomic dysreflexia is beyond the scope of treatment provided by a custodial caregiver . . . [and] if Mr. Searcy does not receive skilled nursing care, the cost will be high, both financially and in terms of morbidity and mortality. [Further,] [i]f Mr. Searcy does not receive skilled nursing care, he will undoubtedly suffer frequent complications resulting in greater medical expense." Wuermser Affidavit, at 1-2. Therefore, it is the finding of this Court that Searcy does indeed require skilled nursing care.
It is worth noting that the patient in Watts suffered from an almost constant series of autonomic dysreflexic injuries. Although Searcy does not appear to suffer from the same severity of attacks, that fact does not make the life threatening reality of those attacks he does suffer from any less life threatening.
Applicable Provisions
As Searcy's care is not custodial and his needs require skilled nursing, the Court now considers which, if any, provisions of the plan apply to the Plaintiff's condition. Again, Rosenberg testified that he never considered what, if any, provisions of the plan applied to Searcy because he ended his analysis at the custodial care threshold. Plaintiffs advance several provisions they believe apply. The Court addresses each in turn.
A. Home Health Care
Searcy is eligible for care under this provision of the plan. The Home Health Care Services provision states that:
Home Health Care services for skilled nursing visits by qualified licensed Nurses or therapists are limited to a maximum of 120 per benefit year. These services are limited to intermittent visits of a frequency, duration and level as approved for the covered Sickness or Injury. A written individual treatment plan must be approved by UM for HMO benefits or by UM for Out-of Network benefits before Home Health Care is rendered or benefits are payable. Home Health Care services do not include Custodial Care.
In conjunction with Home Health Care services, infusion therapy and injectable medications, biologicals and fluids and oxygen ordered by a Physician are covered if Medically Necessary. Medical Supplies in conjunction with Home care will also be covered if approved.
UM is defined in the Plan: " UM or Utilization Management Program means the program administered by the Service Administrator, or its designated agent, to review the medical Necessity of Services. It provides Pre-Admission review, Elective Surgery review, Mental Illness and Chemical Dependency treatment for purposes of the UM program determining Medical Necessity." Plan at 21 (emphasis in original).
Even the Defendants concede that this provision applies. See Deft's Resp. at 20. Having determined that Searcy's care is not custodial and that he requires skilled nursing care, this provision is clearly applicable.
B. Private Duty Nursing
This provision could also apply to Searcy but the evidence presented in Court failed to establish entitlement at this time. The Plan states that
Private Duty Nursing charges are limited and available only for services performed on an Outpatient basis. The person providing Private Duty Nursing services must not live with or be related to the Covered person or to his or her spouse.
Plan at 51 (emphasis in original).
Plaintiffs assert that this provision looks to the needs of a patient confined to their home following an outpatient procedure. This is the only plain meaning reading of the contractual clause. The Private Duty Nursing provision is clearly intended to provide care and monitoring when medically necessary to ensure the patients health during recovery from an outpatient procedure. The Defendants' assert that this clause provides a professional "hand-holder" during "in-facility" recovery from an outpatient procedure. At best this is a severely strained reading and one this Court chooses not to adopt.
Further bolstering this finding is Rosenberg's own testimony that the clause was intended to prevent private duty nurse charges levied against insurance companies by mothers providing professional services in a health care facility-- a "concerned mothers brigade." A more strained reading of this clause is difficult to imagine.
A plain meaning reading suggests that this clause is simply designed to save the Plan money when a patient can go home after an outpatient procedure-- incurring only the cost of a private duty nurse, rather than the full charge for a hospital stay. This reading is a more plausible construction of the clause. The Court accepts that some relative or other person living in the home might attempt to be compensated which explains the restrictive language regarding who can provide the services, that is, a real private duty nurse.
The applicability of this clause is different than the Home Health Care Provision. The Private Duty Nursing provision provides for doctor ordered, outpatient specific care, for specific, discrete procedures. The Home Health Care coverage provides for intermittent visits for covered sicknesses or injuries.
Finally, it is important to realize that nothing in this opinion should be interpreted to show that private duty nursing care is currently available to Boo. Plaintiffs presented no evidence that any of his needed treatment was subsequent to an outpatient procedure triggering the availability of private duty nursing care. However, should his doctors believe that private duty nursing is warranted following outpatient procedures this clause is certainly applicable.
C. Case Management Program
Finally, Plaintiffs offer the Case Management Provision. This argument fails. The Case Management Program provision states that:
Case Management services provided by the Service Administrator is a program which identifies Covered Persons with a serious or chronic Sickness or Injury and presents them with the most cost effective and professionally acceptable setting and location of treatment. Covered persons who have been identified as needing Case Management will be requested to follow the individual Treatment Plan presented.
Plan at 40, This provision is contained in the section of the plan entitled REQUIREMENTS FOR RECEIVING OUT-OF-NETWORK BENEFITS. Plan at 40.
Cathey v. Dow Chemical Co. Medical Care Program, 907 F.2d 554 (5th Cir. 1990) proves instructive. In that case the plaintiff, a patient stricken with multiple sclerosis, contended that her insurance plan provided "two separate avenues for compensation of home nursing care." Id. at 560. The plan limitations included a provision that covered "100% of the reasonable and customary charges for a maximum of 50 home health care visits to any covered individual in any calendar year," Id. at 560 n. 7, which the defendant acknowledged applied. Plaintiff asserted that the "Personal Physician" provision also covered the requested expenses. That provision stated that: "the Plan will pay 80% of the reasonable and customary charges for such services as . . . . [r]egistered nurses that are prescribed by a physician." Id. at 561. In addressing the argument that this provision provided for unlimited nursing visits, the Fifth Circuit stated:
The Cathey's invite us to interpret the instrument so as to eviscerate the separate fifty-visit "Home Health Care" restriction, holding that two separate avenues for compensation of home nursing care are available. The Catheys ignore the fact that the prescribed services outlined under the "Personal Physician" section are plainly directed at non-home medical care, such as doctor or hospital visits. The Catheys, we conclude, offer a strained interpretation of the relevant portions of the instrument and we decline to interpret such provisions contrary to their plain meaning or in a manner rendering certain "obstructive" language inoperative.Id. at 561. Although the Court is not without sympathy for the Plaintiffs' position, much like the Catheys, Plaintiffs invite the Court to adopt a strained reading of the plan and "eviscerate" the separate 120 visit Home Health Care restriction. The Court is not inclined to do so. Searcy is entitled to home health care up to the 120 visit limitation. The Case Management Plan provides nothing additional.
Plaintiffs' Waiver Argument
Plaintiffs assert that because "Defendants never informed Susan Miles or any of her representatives that the benefits requested were not covered services under the Plan" Defendants waived any objections to that coverage. Pltf's Trial Brief at 2-3. This argument, although innovative, fails to establish a contractual right to round the clock home health care. To support their contention Plaintiffs direct the Court to Pitts v. American Sec. Life, Ins. Co., 931 F.2d 351 (5th Cir. 1991). While Pitts does indeed acknowledge the availability of a waiver argument it is not the full story. This Court's exhaustive research failed to uncover any case in which the doctrine of waiver created coverage where there is none, which logically one would expect. Significantly, the issue in Pitts is not the creation of coverage, but rather the failure to "assert a defense to liability under the policy." Id. at 357. The Defendant in Pitts waived a condition precedent to liability under the policy — not a substantive limitation on the type of benefits afforded by the policy. Id. Fifth Circuit law on this subject is crystal clear:
It is well settled that the [doctrines of waiver and estoppel] will not operate to create coverage in an insurance policy where none originally existed. The reason underlying this rule is that the insurer should not be held liable for a risk which goes beyond the contractual agreement and for which no premium was collected. While waiver or estoppel may preclude an insurer's policy defense arising out of a condition or forfeiture provision, these doctrines do not normally operate to prevent the assertion of a defense of noncoverage.Pacific Indem. Co. v. Acel Delivery Serv. Inc., 485 F.2d 1169, 1173 (5th Cir. 1973) (internal citations omitted). Waiver does not apply.
CONCLUSION
This Court is cognizant of Boo Searcy's situation and the burden this ruling places on him and his mother. Nevertheless, Justice Harlan's words are true. This Court cannot be swayed by emotion to provide the Plaintiffs with something their insurance plan does not. Therefore, the Plaintiffs, with the exceptions noted in this opinion, cannot demonstrate a likelihood of success on the merits.
Finally, this Court agrees with some of the cautionary statements set forth by the Watts court and advises the Defendants to heed those words.
[W]hile bowel and bladder care and personal hygiene, and even keeping clothing and bedding neat and the like, are mere activities of daily living or custodial or domestic activities for most people, including most disabled persons who require assistance with those activities, they are not for [Searcy]. As explained in detail above, all of these tasks, the technical and the non technical, are part of the medically required management of [his severe medical condition]. The fact that they are routine, "domestic" tasks for the majority does not diminish the health care significance of their being performed with the utmost care and skill for [Searcy] . . . . [J]udicial notice may be taken of the fact that most nurses in all sorts of setting spend at least some of their time doing unskilled tasks such as helping patients move, get comfortable, eat, clean themselves, etc. They accomplish these tasks in and around their more technical, skilled duties. Presumably, this arrangement contributes to efficiency, and, more importantly provides extensive patient contact, which in turn facilitates the nurses more technical, medical functions. Moreover, in [Searcy's] case in particular, the nurse's role is to monitor and control dysreflexic responses to a whole host of environmental factors. It can be inferred from the evidence discussed above that this requires attention to all that is happening to [Searcy's] body . . .Watts, 30 F. Supp.2d at 109-110.
For the foregoing reasons, Plaintiffs' application is GRANTED as to the Home Health Care provision of the Plan. In all other things, Plaintiffs' application is DENIED in part and this Court's Temporary Restraining Order is VACATED in part, consistent with this opinion. Should the Parties decide that a bench trial is warranted, that request must be submitted in writing to the Court.
SO ORDERED this 17th day of May, 2000.