Opinion
No. CV-00-1095-HU
February 12, 2001
Albert C. Freitag Scappoose, Oregon Plaintiff Pro Se.
Kristine Olson UNITED STATES ATTORNEY District of Oregon Craig J. Casey ASSISTANT UNITED STATES ATTORNEY Portland, Oregon Attorneys for Defendant.
OPINION ORDER
Plaintiff Albert C. Freitag brings this action against defendant challenging defendant's denial of plaintiff's request for a referral to a chiropractor outside of his Medicare plan. Generally, plaintiff contends that because the plan approves other requests for treatment by non-plan medical practitioners, to deny him the same is illegal.
Defendant moves for a protective order and for summary judgment. For the reasons explained below, I grant the motion for protective order and grant the motion for summary judgment.
DISCUSSION
I. Motion for Protective Order
At this point in the case, plaintiff has sought and obtained data from non-party Portland Clinic, regarding its referrals to non-plan practitioners for the relevant time period. Specifically, in a response to a subpoena by plaintiff, Portland Clinic has revealed that from June 1, 1999 through October 16, 2000, there were 15,022 referrals for services outside of plaintiff's Secure Horizons Health Maintenance Organization (HMO), of which 14,417 were approved and 605 were denied. Additionally, of the 14,417 approved requests, none were for chiropractic services, and of the 605 denied requests, one was for chiropractic services. Plaintiff wants the court to consider this information in its determination as to whether the denial of plaintiff's referral to a non-Secure Horizons chiropractor, was in violation of the law.
Defendant moves for a protective order seeking to prevent any additional discovery and the return of the previously discovered information. Defendant argues that, as in other social security cases seeking review of a determination by an Administrative Law Judge (ALJ), my review of the ALJ's decision in this case is limited to the administrative record.
In his Complaint and the accompanying civil cover sheet, plaintiff states that jurisdiction of this action is based on 42 U.S.C. § 1395mm(c)(5)(B) and 42 U.S.C. § 1320c-4. Generally, 42 U.S.C. § 1395-1395ccc is known as "the Medicare Act." See Ardary v. Aetna Health Plans of Calif., 98 F.3d 496, 498 (9th Cir. 1996) ("Medicare Act" found in Title XVIII of the Social Security Act, 42 U.S.C. § 1395 et seq.).
Section 1395mm falls under Part C of Title XVIII which governs "Miscellaneous Provisions." Section 1395mm is entitled "Payments to Health Maintenance Organizations and Competitive Medical Plans." Section 1395mm(c)(5)(B) provides that
A member enrolled with an eligible organization under this section who is dissatisfied by reason of his failure to receive any health service to which he believes he is entitled and at no greater charge than he believes he is required to pay is entitled, if the amount in controversy is $100 or more, to a hearing before the Secretary to the same extent as is provided in section 405(b) of this title, and in any such hearing the Secretary shall make the eligible organization a party. If the amount in controversy is $1,000 or more, the individual or eligible organization shall, upon notifying the other party, be entitled to judicial review of the Secretary's final decision as provided in section 405(g) of this title, and both the individual and the eligible organization shall be entitled to be parties to that judicial review.42 U.S.C. § 1395mm(c)(5)(B).
Section 405(g), reads in relevant part:
Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Commissioner of Social Security may allow. Such action shall be brought in the district court of the United States for the judicial district in which the plaintiff resides. . . . As part of the Commissioner's answer the Commissioner of Social Security shall file a certified copy of the transcript of the record including the evidence upon which the findings and decision complained of are based. The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive[.]42 U.S.C. § 405(g).
In addition, judicial review is further limited by section 405(h) which applies through 42 U.S.C. § 1395ii (applying 42 U.S.C. § 405(h) to "this subchapter.").
Under section 405(h),
The findings and decision of the Commissioner of Social Security after a hearing shall be binding upon all individuals who were parties to such hearing. No findings of fact or decision of the Commissioner of Social Security shall be reviewed by any person, tribunal, or governmental agency except as herein provided. No action against the United States, the Commissioner of Social Security, or any officer or employee thereof shall be brought under section 1331 or 1346 of Title 28 to recover on any claim arising under this subchapter.42 U.S.C. § 405(h); Ardary, 98 F.3d at 499 (noting that under section 405(h), section 405(g) is sole avenue for judicial review for all claims "arising under" the Medicare Act).
Clearly, section 405(g) applies; the question is whether section 405(g) limits the scope of discovery and judicial review. In an October 1999 decision by the Western District of Washington, the court noted that although section 405(g) does not explicitly preclude discovery in federal court, the general rule is that the court's review is limited to the administrative record. M.D. Medical Supplies, Inc. v. Shalala, No. C98-1548L, Order at p. 2 (W.D.Wa. Oct. 2, 1999) (citing Higbee v. Sullivan, 975 F.2d 558, 561-62 (9th Cir. 1992)). In Higbee, the court noted that under section 405(g), "a reviewing court may consider only the Secretary's final decision, the evidence in the administrative transcript on which the decision was based, and the pleadings." Higbee, 975 F.2d at 562.
It does not appear that plaintiff's citation to 42 U.S.C. § 1320c-4 as a basis for jurisdiction, is accurate. This section is found in Subchapter XI of the Social Security Act which is entitled "General Provisions and Peer Review." It is not a Medicare benefits subchapter. Part A of the Subchapter is called "General Provisions." Part B, which includes section 1320c, is called "Peer Review of Utilization and Quality of Health Care Services." Section 1320c-4 is entitled "Right to hearing and judicial review." It provides that "[a]ny beneficiary who is entitled to benefits under XVIII of this chapter [e.g. the Medicare Act] . . . who is dissatisfied with a determination made by a contracting peer review organization in conducting its review responsibilities under this part. . . ." 42 U.S.C. § 1320c-4. Here, since no peer review organization was involved in the decision to deny plaintiff's request for a referral to an outside chiropractor, this section does not apply.
In a recent case, the Ninth Circuit again has stated that under section 405(g), "judicial review in cases under the Social Security Act is limited to a review of the administrative record for a determination of whether the Commissioner's decision is supported by substantial evidence in the record." Harman v. Apfel, 211 F.3d 1172, 1177 (9th Cir.), cert. denied, 121 S.Ct. 628 (2000).
In M.D. Medical Supplies, the court noted that generally, exceptions to the limitation to the record were confined to those instances where a party is able to show that there is new evidence or a new avenue of investigation that was not, for good cause, presented to or considered by the Commissioner. M.D. Medical Supplies, Order at p. 2. Under such circumstances, a remand to the Commissioner, not discovery under the federal rules, would be the appropriate course. Id. The court also noted that discovery may be appropriate where the procedural fairness of the administrative proceeding itself is called into doubt after the agency has issued its ruling. Id.
Here, I agree with defendant that the court's review is limited to a review of the administrative record to determine if there is substantial evidence in that record to sustain the Secretary's decision. This is not a situation where plaintiff challenges the fairness of the underlying administrative proceedings and there is no suggestion that the discovery obtained from the Portland Clinic is new evidence or a new avenue of investigation that, for good cause, was not previously submitted.
I note, however, that even if plaintiff made a showing as to why the evidence was just discovered and demonstrated good cause for failing to present it earlier in the case, I would not be inclined to remand the action to the Secretary for two reasons: (1) plaintiff contends the evidence and the issue raised by the evidence is already in the record in some form; and (2) even assuming this exact evidence were in the record, as can be seen from the discussion below, it makes no difference to the outcome of the case.
I grant defendant's motion for protective order.
II. Motion for Summary Judgment
A. Standards
Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party bears the initial responsibility of informing the court of the basis of its motion, and identifying those portions of "`pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56(c)).
"If the moving party meets its initial burden of showing `the absence of a material and triable issue of fact,' `the burden then moves to the opposing party, who must present significant probative evidence tending to support its claim or defense.'" Intel Corp. v. Hartford Accident Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991) (quoting Richards v. Neilsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987)). The nonmoving party must go beyond the pleadings and designate facts showing an issue for trial. Celotex, 477 U.S. at 322-23.
The substantive law governing a claim determines whether a fact is material. T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). All reasonable doubts as to the existence of a genuine issue of fact must be resolved against the moving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986). The court should view inferences drawn from the facts in the light most favorable to the nonmoving party. T.W. Elec. Serv., 809 F.2d at 630-31.
If the factual context makes the nonmoving party's claim as to the existence of a material issue of fact implausible, that party must come forward with more persuasive evidence to support his claim than would otherwise be necessary. Id.; In re Agricultural Research and Tech. Group, 916 F.2d 528, 534 (9th Cir. 1990); California Architectural Bldg. Prod., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987).
B. Discussion
1. Procedural History
On September 6, 1997, plaintiff's then Primary Medical Group (PMG), the Portland Clinic, acting on behalf of Secure Horizons, denied plaintiff's request for a referral to a chiropractor outside of his health plan. Admin. Rec. (AR) at p. 68. On September 22, 1997, plaintiff appealed the PMG's decision to Secure Horizons. Id. at p. 70. On October 14, 1997, Secure Horizons upheld the denial of the chiropractor referral. Id. at p. 76. On October 23, 1997, Secure Horizons's denial was appealed to the Center for Health Dispute Resolution (CHDR). Id. at pp. 78-80. The CHDR, under contract with the federal Health Care Financing Administration (HCFA), conducted a reconsideration review of Secure Horizons's decision. Id. at pp. 83-84. The CHDR upheld Secure Horizons's denial of the chiropractor referral. Id. at p. 84.
Pursuant to plaintiff's request, an Administrative Law Judge held a hearing on October 14, 1998. Admin. Rec. Vol. II at pp. 2-45. Plaintiff and an orthopedic surgeon, appearing as a medical expert, testified at the hearing. Id. The ALJ found that the denial of plaintiff's request for a referral to a nonplan chiropractor was not improper. Id. at p. 25. Upon review, the Appeals Council upheld the ALJ's determination. Id. at pp. 3-4. Thus, the ALJ's decision became the final decision of the Secretary.
2. Factual History
From the record, it appears that plaintiff became a member of Secure Horizons, a "Medicare + Choice" HMO, in about August 1996. Id. at p. 268. The record shows that before his membership in Secure Horizons, plaintiff suffered back pain caused by moderate generalized spondylosis, moderate degenerative disc disease, and moderate facet arthrosis. Id. at p. 107. Plaintiff had been treated by chiropractor Daniel DeLapp since at least May 1992. Id. at p. 28.
When he joined Secure Horizons, plaintiff chose Cascade Medical Group as his PMG and Dr. Steven M. Losli as his primary care physician. Id. at p. 268. On his first visit to Dr. Losli, on August 6, 1996, plaintiff reported his history of low back pain, but reported no pain at that time and that he had been stable for the last eight months. Id. at p. 202. Dr. Losli noted that plaintiff would probably see a chiropractor if there was exacerbation of the pain because that had been the most successful treatment in the past. Id. at p. 203.
Sometime between August 6, 1996, and September 19, 1996, Dr. Losli made a referral for plaintiff to receive lifetime chiropractic care. Id. at p. 58. Cascade Medical Group, which apparently had no chiropractor or osteopath on staff, denied the request as not medically necessary. Id. Upon appeal, the Medical Director, Dr. Glenn S. Rodriguez, M.D., determined that x-rays from 1993 and 1996 demonstrated a "subluxation" under Medicare definitions, entitling plaintiff to chiropractic treatment. Id. at p. 304. On October 28, 1996, Secure Horizons informed plaintiff that his appeal was granted and that he should contact Cascade Medical Group to make arrangements with an appropriate chiropractor. Id. at p. 61. Secure Horizons stated that this was a "one time authorization" as a "gesture of good will and a symbol of [its] commitment to [plaintiff's] satisfaction." Id.
Plaintiff was referred to Dr. DeLapp. Id. at p. 62. The authorization was valid from October 30, 1996, through February 28, 1997. Id. The referral indicated that a treatment plan must be sent to Dr. Losli before any further authorizations could occur. Id.
In March 1997, plaintiff changed his PMG from Cascade Medical Group to Healthfirst. Id. at p. 268. His new primary care physician was James Ritzenthaler, M.D. Id. Dr. Ritzenthaler first saw plaintiff on March 11, 1997. Id. at 201. Dr. Ritzenthaler noted plaintiff's chronic back pain and plaintiff's report that he had been experiencing symptoms in recent weeks. Id. He also noted plaintiff's chiropractic treatments. Id. Dr. Ritzenthaler prescribed a course of muscle relaxants and ibuprofen as an anti-inflammatory for plaintiff's back symptoms. Id.
On April 28, 1997, Dr. Ritzenthaler participated in a conference call with plaintiff and Secure Horizons, initiated by plaintiff's request for chiropractic treatment. Id. at p. 200. Dr. Ritzenthaler recommended not pursuing chiropractic care at the time because his opinion was that therapy with medication was appropriate. Id. In May 1997, Dr. Ritzenthaler talked with plaintiff regarding plaintiff's refusal to follow Dr. Ritzenthaler's recommendation to try the medication. Id. at p. 199. Dr. Ritzenthaler was unwilling to continue as plaintiff's primary care physician if plaintiff was unwilling to "even attempt a trial of medical therapy[.]" Id. On May 29, 1997, Healthfirst formally denied plaintiff's request for a chiropractor referral. Id. at p. 63.
Plaintiff then switched his PMG to the Portland Clinic and chose Dr. Robert Epstein as his primary care physician. Dr. Epstein first saw plaintiff on July 22, 1997. Id. at p. 126. Dr. Epstein noted plaintiff's low back pain and previous success with twice monthly chiropractic visits. Id.
On August 19, 1997, Dr. Epstein referred plaintiff to Dr. Meredith Lowry, an osteopathic physician who works for the Portland Clinic, for treatment of plaintiff's chronic low back pain Id. at p. 122. Dr. Lowry saw plaintiff that same day and prescribed therapeutic exercises for plaintiff to perform at home on a daily basis in addition to the stretching plaintiff had already been doing. Id. at pp. 123-24. During the appointment, Dr. Lowry performed some manipulative treatments to plaintiff's back. Id.
Dr. Lowry saw plaintiff again on September 2, 1997. Id. at p. 121. Plaintiff indicated that although he had increased mobility, his stiffness and pain were not alleviated. Id. Dr. Lowry again performed manipulative treatments and showed plaintiff how to do self-treatment at home. Id. She indicated that if he was not better for some period of time after "this trial," the manipulative therapy may not be helpful to him. Id.
On September 11, 1997, plaintiff wrote to Dr. Epstein to complain that he was not achieving relief from Dr. Lowry. Id. at p. 67. He requested that Dr. Epstein make a referral to Dr. DeLapp. Id.
On September 15, 1997, Dr. Epstein initiated a referral to Dr. DeLapp for plaintiff's back pain. Id. at p. 120. He indicated that plaintiff was requesting chiropractic treatment and was unhappy with Dr. Lowry's treatment. Id. On September 16, 1997, the request was denied because adequate treatment existed within the clinic. Id. The Portland Clinic suggested that the patient be referred to Dr. Sacon, another osteopath associated with the Portland Clinic. Id.; see also AR at pp. 301-02.
Plaintiff appealed the denial to Secure Horizons. Id. at p. 300. In response to an inquiry from Secure Horizons, the Portland Clinic indicated that it offered plaintiff an appointment with Dr. Sacon and that the Portland Clinic believed this to be superior to chiropractic treatment. Id. at p. 299.
On October 14, 1997, Secure Horizons denied plaintiff's appeal. Id. at pp. 296-98. M.S. Rowland, M.D., noted that although plaintiff had documented subluxation which qualified him for manipulative therapy with an appropriate physician specialist, the authorization to the osteopath met the treatment requirement. Id. at p. 198. In accordance with Secure Horizons's contract with HCFA, Secure Horizons forwarded plaintiff's appeal to the CHDR for further review.
As indicated above, the CHDR denied plaintiff's appeal. Id. at pp. 83-84. CHDR noted that HMOs have the flexibility to choose the appropriate physician specialty or non-physician practitioner to furnish a specific service, and thus, the HMO could choose a chiropractor, orthopedic specialist, or osteopath, or perform manual manipulation of the spine. Id. at p. 83. CHDR determined that because a contracted provider, Dr. Sacon, was available and capable of providing appropriate care to plaintiff, the health plan was not obligated to refer plaintiff to a non-contracted physician. Id. at p. 84. CHDR also noted that plaintiff agreed to have all non-emergency/non-urgent care coordinated by his health plan as a condition of coverage. Id. Because the in-plan osteopath was available, Dr. Epstein's requested referral did not meet the Medicare criteria for coverage outside of the prepaid health plan. Id.
After a hearing, the ALJ affirmed the denial of the referral. Id. at p. 25. The ALJ found that plaintiff was entitled to "spinal manipulation." Id. He found that the services were available from his primary care provider, specifically from the two licensed osteopathic physicians under contract with his provider. Id. He found that the amount of benefits in controversy exceeded $100 and that plaintiff's request for a referral to a chiropractic physician outside his health plan was properly denied. Id.
3. Standard of Review
As indicated in the previous section addressing the motion for protective order, my review is limited to the administrative record. The Secretary's decision must be upheld if there is substantial evidence in the record to support it. As with disability claims, "substantial evidence" means "more than a mere scintilla" but "less than a preponderance[.]" Orteza v. Shalala, 50 F.3d 748, 749 (9th Cir. 1995). It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. The court must weigh "both the evidence that supports and detracts from the Commissioner's conclusions." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). However, if the evidence adduced in the administrative record can support more than one rational interpretation, the ALJ's decision must be upheld. Orteza, 50 F.3d at 749.
4. Legal Analysis
Under 42 U.S.C. § 1395w-21, a person who is entitled to Medicare Part A benefits and who is enrolled under Medicare Part B, is entitled to elect to receive benefits either through the original medicare fee-for-service program under Medicare Parts A and B as regulated by 42 U.S.C. § 1395-1395ccc, or through a "Medicare + Choice" plan regulated under 42 U.S.C. § 1395w-21-1395w-28. Secure Horizons is a "Medicare + Choice" plan. See 42 U.S.C. § 1395w-21(a)(2)(A) (including health maintenance organizations). Statutory provisions governing the relationship between HCFA and the eligible "Medicare + Choice" organization are found at 42 U.S.C. § 1395w-21-1395w-28. Generally, each "Medicare + Choice" plan must provide those items and services for which benefits are available under Medicare Parts A and B, to its enrolled members. 42 U.S.C. § 1395w-22(a)(1).
Under 42 C.F.R. § 410.20, Medicare Part B pays for physicians' services, including those of a chiropractor who meets the qualifications specified in section 410.22. 42 C.F.R. § 410.20(a), (b)(5). The qualifications for chiropractors are set forth in section 410.22(a). The regulations limit the nature of the services a chiropractor can provide under Medicare Part B: "Medicare Part B pays only for a chiropractor's manual manipulation of the spine to correct a subluxation if the subluxation has resulted in a neuromusculoskeletal condition for which manipulation is appropriate treatment." 42 C.F.R. § 410.22(b).
"Medicare + Choice" organizations are allowed to specify the network of providers from whom enrollees may obtain services if the "Medicare + Choice" organization ensures that all covered services contracted for (or on behalf of) Medicare enrollees are available and accessible under the plan. 42 C.F.R. § 422.112. The "Medicare + Choice" organization must furnish the benefit directly, or through another arrangement, or pay for the benefit. 42 C.F.R. § 422.100(a). The "Medicare + Choice" organization must make timely and reasonable payment to or on behalf of the plan enrollee for services obtained from a provider that does not contract with the organization if they are emergency or urgently needed services, or for services for which coverage has been denied by the "Medicare + Choice" organization and found to be services the enrollee was entitled to have furnished, or paid for, by the organization. 42 C.F.R. § 422.100(b)(1).
Thus, if one is enrolled in a "Medicare + Choice" plan, the plan must provide all the services one is entitled to under Medicare Parts A and B, but the plan may do so through its own provider network. The plan must allow the enrollee to seek certain emergency or urgent care outside of that network and it must make arrangements for the enrollee to be treated by a practitioner outside of the plan if the plan itself does not provide the treatment to which the enrollee is entitled.
Under HCFA's "Health Maintenance Organization/Competitive Medical Plan Manual," a "Medicare + Choice" plan may choose the appropriate physician specialty or non-physician practitioner to furnish a specific service. The specific example given in the Manual to illustrate this point is directly relevant: "For example, [the HMO] may choose the appropriate physician specialist to perform manual manipulation of the spine: chiropractor, orthopedic specialist, or osteopath." HCFA HMO/CMP Manual at § 2153.1. Thus, as the CHDR stated, manual manipulation of the spine may be provided for by a chiropractor, orthopedic specialist, or an osteopath.
Given the HMO's discretion to choose the particular physician specialty to provide spinal manipulation, the evidence obtained by plaintiff in discovery from the Portland Clinic regarding the number of referrals made by the clinic and the number refused, is irrelevant to whether in this case, the Secretary's decision is based on substantial evidence.
Although the regulations for Medicare Part B provide for chiropractic services for subluxations, plaintiff's HMO is allowed, consistent with the governing law, to choose the appropriate specialty to provide the treatment. Plaintiff contends that he is entitled to chiropractic service because that is the treatment method which is most effective for him. Medicare allows spinal manipulation as the treatment method. But, when plaintiff enrolled in a Medicare HMO, he effectively allowed the HMO to determine which physician speciality would provide that method. Perhaps plaintiff can receive the chiropractic care he desires through the traditional fee-for-service Medicare Part B scheme rather than through the HMO model. Under his "Medicare + Choice" plan, he does not have the right to receive his chosen chiropractic care as long as the plan offers the treatment method, spinal manipulation, by an appropriate physician specialist. Here, the plan has met its obligations.
Based on the record before me, the Secretary's decision is based on substantial evidence in the record and is affirmed.
CONCLUSION
Defendant's motion for protective order (#22) and defendant's motion for summary judgment (#19) are granted.
IT IS SO ORDERED.