Opinion
01 Civ. 685 (GBD)
October 1, 2001
MEMORANDUM OPINION ORDER
Defendants have moved for summary judgment pursuant to Fed.R.Civ.P. 56. Plaintiffs claims arise under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq. and the Americans With Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq. Plaintiffs ERISA claim is based on the allegedly arbitrary and capricious nature of defendant Empire's decisions to: (1) change its policy to deny coverage for high dose chemotherapy treatment ("HDCT") for breast cancer patients and (2) deny coverage for HDCT for Mr. Zervos. Plaintiffs ADA claim is based on Empire's alleged discrimination against breast cancer patients by denying coverage for this treatment. Defendant's motion to dismiss the ERISA claim is denied. After careful analysis, this Court grants defendants' motion for summary judgment on the ADA claim.
Background
Plaintiff suffers from metastic breast cancer and is seeking declaratory and injunctive relief to obtain health insurance coverage for HDCT. Plaintiff applied for coverage for this treatment in October 2000 and was denied. Defendant Empire presently provides coverage for conventional chemotherapy for breast cancer patients, but does not cover HDCT because it has determined it to be an Experimental/Investigational treatment. Under Empire's health plan ("the Plan"), coverage is not provided for treatments that are categorized as Experimental/Investigational, which are defined as treatments that are not of proven benefit or not generally recognized by the medical community as an effective treatment.
Prior to March 2000, Empire had provided coverage for HDCT to any person with breast cancer for whom the treatment was recommended. In 1999, Empire began to reevaluate its policy regarding HDCT as a result of conflicting evidence and opinions within the medical community concerning its effectiveness. In March 2000, Empire's Technology Assessment Committee ("TAC") convened to discuss the efficacy of HDCT. After a review of the then existing available medical literature, Empire concluded that HDCT was not effective in improving breast cancer patients' chances of survival, and therefore decided to change its policy and thereafter deny all future applications by breast cancer patients based on the determination that HDCT was investigational. Declaration of Steven Wolinsky, M.D., dated February 13, 2001 ("Wolinsky Dec.") PP 18-20.
Plaintiff exhausted his administrative and contractual remedies under his health care plan (the "Plan"). He then filed a charge of discrimination with the EEOC under the ADA and Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., along with its companion state and local anti-discrimination statutes, New York State Executive Law § 296(1)(a) and New York City Administrative Code Title 8, § 8-107(1)(a), and further requested that the EEOC issue an immediate right to sue letter. Thereafter, on January 29, 2001, plaintiff filed this action alleging that the health plan administrators who make decisions regarding the denial of benefits acted arbitrarily and capriciously in violation of his rights under ERISA and brought a motion for a preliminary injunction requesting that this Court enjoin defendants from refusing to pre-certify and provide insurance coverage to plaintiff for HDCT. That motion was denied by this Court in a detailed decision issued on March 14, 2001. The decision was affirmed by the Second Circuit Court of Appeals on June 5, 2001. Plaintiff has since withdrawn his Title VII claims, leaving the ERISA and ADA claims in this action.
Discussion
Summary judgment, pursuant to Rule 56, may be granted where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P.56(c). A genuine issue of material fact for trial exists if, based on the record as a whole, a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L.Ed.2d 202, 106 S.Ct. 2505 (1986). The Court must view the record in the light most favorable to the nonmoving party by resolving all ambiguities and drawing all reasonable inferences in favor of that party. Matsushita Elec. Indus, Co., v. Zenith Radio, 475 U.S. 574, 587-88, 89 L.Ed.2d 538, 106 S.Ct. 1348 (1986);Anderson, 477 U.S. at 255; Tomka v. Seiler Corp., 66 F.3d 1295, 1304 (2d Cir. 1995). The moving party bears the burden of demonstrating that no genuine issue of material fact exists. Anderson, 477 U.S. at 256; Tomka, 66 F.3d at 1304. Nevertheless, the party opposing the motion bears the ultimate burden of proving that there is evidence which creates a genuine issue of material fact for trial. Twin Laboratories v. Weider Health Fitness, 900 F.2d 566, 568 (2d Cir. 1990). The nonmoving party cannot meet this burden by simply relying on mere conclusory allegations, speculation, or conjecture. Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986).
Plaintiff alleges that Empire is discriminating against him because of his disability, namely breast cancer, in violation of the ADA. The crux of this claim is that Empire provides coverage for HDCT for other types of cancers, such as acute myeloid leukemia ("AML"), while denying coverage for HDCT for breast cancer. This claim cannot be sustained under current law.
The law in this circuit is clear regarding ADA claims for denial of benefits. In EEOC v. Staten Island Savings Bank, 207 F.3d 144, 150 (2d Cir. 2000) (citing cases), the Second Circuit Court of Appeals joined other circuits in holding that "[s]o long as every employee is offered the same plan regardless of that employee's contemporary or future disability status, then no discrimination has occurred even if the plan offers different coverage for various disabilities." It is undisputed that Empire provides the same health care plan to all employees. It is also undisputed that the Plan does not provide coverage for HDCT for breast cancer while providing the treatment for other cancers. However, this is not a violation of the ADA. As enumerated in Staten Island Savings Bank,
It is fully consistent with an understanding that the ADA protects the individual from discrimination based on his or her disability to read the Act to require no more than that access to an employer's fringe benefit program not be denied or limited on the basis of his or her particular disability."Id. at 151. Empire has provided access to its health plan to plaintiff, as well as all other breast cancer patients. Therefore, plaintiffs claim must fail on this front.
Empire is also protected by the "safe harbor" provision of the ADA. The safe harbor provision of Section 501(c) of Title V of the ADA states
Subchapters I through III of this chapter and title IV of this Act shall not be construed to prohibit or restrict-(1) an insurer, hospital or medical service company, health maintenance organization, or any agent, or entity that administers benefit plans, or similar organizations from underwriting risks, classifying risks, or administering such risks that are based on or not inconsistent with State law.42 U.S.C. § 12201(c). Plaintiff does not dispute that Empire's plan is in compliance with state law and would otherwise fall within the safe harbor provision of the ADA. However, plaintiff invokes the "subterfuge" clause and argues that Empire is not protected by the safe harbor provision because its appeal process is a "subterfuge" to avoid the prohibitions of the ADA. Plaintiffs Memorandum of Law In Opposition To Defendants' Motion For Summary Judgment at 30. The subterfuge clause provides that the safe harbor provision "shall not be used as a subterfuge to evade the purposes of [Titles] I and Ill of [the Act]." Id. The Second Circuit has interpreted the subterfuge clause as indicating that "notwithstanding compliance with state law, Titles I and III do apply to insurance practices where conformity with state law is used as a subterfuge to evade their purposes." Pallozzi v. Allstate Life Ins, Co., 198 F.3d 28, 32 (2d Cir. 2000). Plaintiff has proffered no evidence which indicates that Empire's compliance with state law is an attempt to evade Titles I and III of the ADA. Plaintiff acknowledges that he is required to prove subterfuge and requested that the evidence cited in his Rule 56.1 Counter-Statement of Facts be used to support his pleadings.Plaintiffs Memorandum of Law In Opposition To Defendants' Motion For Summary Judgment at 30-31, n. 24. Even if this Court accepts that those facts are true, they do not support his claim.
Plaintiff attempts to substantiate his subterfuge claim with evidence that Empire provides coverage for HDCT for other cancers such as AML while denying coverage for HDCT for breast cancer, although the treatment is similarly controversial regarding its effectiveness for both cancers. In Leonard F. v. Israel Discount Bank of New York. 199 F.3d 99, 104 (2d Cir. 1999), the court held "that the subterfuge clause in Section 501(c) of the ADA should be construed . . . to require an intent to evade . . . ." Plaintiffs conclusory argument regarding Empire's coverage for AML does not demonstrate the required intent necessary to sustain a subterfuge claim. As previously addressed in this opinion, the law permits different coverage for different disabilities as long as the same plan is available to all employees. Staten Island Savings Bank, 207 F.3d at 15 1-152; see also Saks v. Franklin Covey Co., 117 F. Supp.2d 318, 326-27 (S.D.N.Y. 2000). Plaintiff has proffered no evidence to support a reasonable conclusion that such a distinction is motivated by an intent to evade the purpose of the Act. Without more, varying coverage does not, by itself, raise an inference that there is an intent to evade the purposes of the ADA and invoke the subterfuge clause.
Finally, plaintiff cites Staten Island to support his argument that the safe harbor provision applies "only where, based on an analysis and uniform application of underwriting and classifying risks, a plan fiduciary makes a determination to exclude certain benefits and applies that determination uniformly to all members of the plan." Plaintiff's Memorandum of Law In Opposition To Defendants' Motion For Summary Judgment at 29. There is no reference in the Staten Island decision of a requirement of risk analysis in order for an insurance plan to be protected by the safe harbor provision, nor does the plaintiff point to any other cases to support this argument. Additionally, the text of the safe harbor provision does not lend support to this argument. In Leonard F., 199 F.3d 99, 104-5 (2d Cir. 1999), the court rejected plaintiffs argument that the subterfuge clause requires underwriters to base their decisions regarding disability benefits on "sound actuarial principles" stating "[n]either the subterfuge clause nor the safe harbor provision to which it belongs make reference to "sound actuarial principles."' Thus, Empire's lack of actuarial analysis does not sustain plaintiffs ADA claim.
For the foregoing reasons, defendants' motion for summary judgment, therefore, is
GRANTED.