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Quinones v. UnitedHealth Group Inc.

United States District Court, D. Hawaii

April 18, 2017

Juan Rios Quinones, Plaintiff,
UnitedHealth Group Incorporated; UnitedHealthcare, Inc.; UnitedHealthcare Insurance Co., Defendants.



         Before the Court are three motions for summary judgment, all filed on October 24, 2016. Defendants UnitedHealth Group Incorporated, UnitedHealthcare, Inc., and UnitedHealthcare Insurance Company (collectively “Defendants”) filed a Motion for Summary Judgment on Counts IV, VI, VII, and VIII (“Defendants' Summary Judgment Motion A”). [Dkt. no. 210.[1] Plaintiff Juan Rios Quinones (“Plaintiff”) filed a memorandum in opposition on November 7, 2016, and Defendants filed a reply on November 14, 2016. [Dkt. nos. 228, 233 (filed under seal).] Defendants also filed a Motion for Summary Judgment on Count X of Plaintiff's Supplemental Complaint (“Defendants' Summary Judgment Motion B”). [Dkt. no. 214.] Plaintiff filed a memorandum in opposition on November 7, 2016, and Defendants filed a reply on November 14, 2016. [Dkt. nos. 226, 235 (filed under seal).] Finally, Plaintiff filed a Motion for Partial Summary Judgment (“Plaintiff's Summary Judgment Motion”). [Dkt. no. 212.] Defendants filed a memorandum in opposition on November 7, 2016, and Plaintiff filed a reply on November 14, 2016. [Dkt. nos. 224 (filed under seal), 237.] All three motions came on for hearing on November 28, 2016. On December 28, 2016, the Court issued an Entering Order ruling on all three motions (“12/28/16 EO”). [Dkt. no. 262.] This Order supersedes the 12/28/16 EO. After careful consideration of the motions, supporting and opposing memoranda, the arguments of counsel, and for the reasons set forth below: Defendants' Summary Judgment Motion A is HEREBY GRANTED; Defendants' Summary Judgment B is HEREBY GRANTED; and Plaintiff's Summary Judgment Motion is HEREBY DENIED AS MOOT.


         The background of this case is well known to all parties, and is set forth in the Court's June 30, 2015 Order Granting in Part and Denying in Part Defendants' Motion for Judgment on the Pleadings as to Plaintiff's Allegations Relating to Medicare Benefits (“Medicare Act Order”). [Dkt. no. 49.[2] The Court will therefore only repeat the background that is relevant to the instant motions. In an Entering Order filed on September 12, 2016 (“9/12/16 EO”), the Court noted that the dispositive motions deadline had passed, but nevertheless granted the parties leave to file motions for summary judgment on the remaining claims. [Dkt. no. 192.] The 9/12/16 EO also outlined those claims: violation of Medicaid statutes and regulations, 42 U.S.C. §§ 1396-1396v and 42 C.F.R. § 435.930(a) (“Count IV”); [Complaint, filed 10/31/14 (dkt. no. 1), at ¶¶ 180-88;] bad faith (“Count VI”); [id. at ¶¶ 196-209;] negligent infliction of emotional distress (“NIED” and “Count VII”); [id. at ¶¶ 210-16; First Supplemental Complaint (“Suppl. Complaint”), filed 8/17/16 (dkt. no. 176), at ¶¶ 30-35;] intentional infliction of emotional distress (“IIED” and “Count VIII”); [Complaint at ¶¶ 217-25; Suppl. Complaint at ¶¶ 36-39;] and breach of the continuing duty of good faith (“Count X”) [Suppl. Complaint at ¶¶ 40-45].


         I. Defendants' Summary Judgment Motion A

         A. Count IV - Violation of Medicaid Statutes and Regulations

         The Complaint alleges that “Title XIX of the Social Security Act requires that Medicaid services be furnished to eligible individuals without delay attributable to administrative procedures, ” and that Defendants “denied and unreasonably delayed provision of medically necessary benefits to which Plaintiff was entitled under his Medicaid-Medicare dual eligible enrollment.” [Complaint at ¶¶ 182-83 (citing 42 U.S.C. § 1396a(a)(8);[3] 42 C.F.R. § 435.930(a)).[4] It is clear from the record, however, that any delay in Plaintiff's receipt of benefits was not caused by Defendants, and Defendants never denied a request for Medicaid coverage in the instant matter.[5]

         1. Plaintiff's PMD and Medicare Benefits

         It is undisputed that Plaintiff is eligible for both Medicare and Medicaid, commonly referred to as being “dual eligible.” [Complaint at ¶ 7; Def.'s Concise Statement of Facts in Supp. of Summary Judgment Motion A (“Defs.' Summary Judgment Motion A CSOF”), filed under seal on 10/31/16 (dkt. no. 241), at ¶ 1.] Plaintiff's benefits under both programs are coordinated by Defendants. [Complaint at ¶ 18; Defs.' Summary Judgment Motion A CSOF at ¶ 1.] It is also undisputed that, due to his medical conditions, Plaintiff uses a Personal Mobility Device (“PMD”). [Complaint at ¶ 8; Defs.' Summary Judgment Motion A CSOF at ¶ 2.]

         In the Medicare Act Order, the Court explained, “[s]ince Plaintiff's coordination of benefits theory is inextricably intertwined with a Medicare benefits decision, . . . his claims arise at least in part under the Medicare Act, and require Plaintiff to seek administrative review from the [United States Secretary of Health and Human Services (‘Secretary')] before raising them in federal court.” 2015 WL 3965961, at *7. Moreover, the Court reasoned:

The [United States] Supreme Court and the Ninth Circuit [Court of Appeals] have held that the test for whether a claim arises under the Medicare Act is broad. See, e.g., Heckler [v. Ringer], 466 U.S. [602, ] 615 [(1984)] (explaining that the Supreme Court has “construed the ‘claim arising under' language quite broadly” and applying the “broad test”); Ardary v. Aetna Health Plans of Cal., Inc., 98 F.3d 496, 500 (9th Cir. 1996) (recognizing that the Supreme Court “instructed [it] to read the term ‘arising under' broadly” (citing Heckler)). The result is no different even though: Plaintiff does not request a benefit or reimbursement for a benefit; some of his remedies are injunctive rather than monetary; or the lawsuit challenges the process by which Defendants denied the benefit rather than purely the substance of the denial.

Id. at *6 (some alterations in Medicare Act Order).[6] Plaintiff did not move for reconsideration of the Medicare Act Order.

         Defendants seek dismissal of any part of the remaining claims that relate to: the repair and/or maintenance of Plaintiff's PMD; and the provision of or refusal to provide Plaintiff with a loaner PMD. [Mem. in Supp. of Def.'s Summary Judgment Motion A at 29-30.] Specifically, Defendants argue that paragraphs 36, 73, 76-77, 79, 83, 148-49, and 206 of the Complaint, as well as paragraphs 2-3, 9-18, 30-35, and 40-45 of the Supplemental Complaint, relate to PMD repair and maintenance, as well as the provision of a loaner PMD. [Id.] Likely in an effort to preempt this argument, the Supplemental Complaint states, “[t]o be absolutely clear, Plaintiff's claims are not asserted herein, nor have they ever been asserted herein, against his Medicare Advantage Special Needs Plan which [United Healthcare (‘UHC')] Defendants operate in Hawaii.” [Suppl. Complaint at ¶ 2.] David W. Heywood (“Heywood”), Defendants' Health Plan Chief Executive Officer for Hawai`i, submits:

Wheelchairs, repairs to wheelchairs, and the coordination of loaner wheelchairs during the repair process, are all benefits that are covered by Medicare for dual eligible members. Under these circumstances, the Medicare plan would need to pay as primary coverage, or deny coverage for those benefits, before the Medicaid plan would have any coverage obligation.

[Def.'s Summary Judgment Motion A CSOF, Decl. of David W. Heywood (“Heywood Decl.”) at ¶ 4.]

         Plaintiff does not directly address this argument in his opposition memorandum, but he does dispute it in his supporting documents. See Pltf.'s Concise Statement of Facts in Opp. to Def.'s Summary Judgment Motion A (“Pltf.'s CSOF in Opp. to Def.'s Summary Judgment Motion A”), filed 11/7/16 (dkt. no. 229), at ¶ 3.] First, Plaintiff submits an email that quotes language purportedly drafted by Heywood. [Id., Exh. 10.[7] That language, however, does not in any way dispute that Medicare would provide primary coverage for PMD maintenance or repairs, or that Medicare would have to deny such a claim before Medicaid would cover it. Next, Plaintiff cites two depositions, but neither the deposition of Dr. Ronald Fujimoto nor the deposition of Jack Sanders (“Sanders”) contradict Defendants' statement of fact. See Pltf.'s Concise Statement of Facts in Supp. of Pltf.'s Summary Judgment Motion (“Pltf.'s CSOF in Supp. of Pltf's Summary Judgment Motion”), filed 10/24/16 (dkt. no. 213), Decl. of Rafael Del Castillo (“Del Castillo Decl.”), Exh. 6 (9/15/16 Depo. Trans. of Ronald Fujimoto, D.O. (“Pltf.'s Fujimoto Depo.”)), at 88-89 (describing the condition of Plaintiff's PMD), 171 (describing the type of PMD requested under Medicare); id., Exh. 9 (9/15/16 Depo. Trans. of Jack Sanders (“Pltf.'s Sanders Depo.”)), at 67-68 (also describing the condition of Plaintiff's PMD).[8] Finally, Plaintiff cites 42 U.S.C. § 1396a(a)(8) and 42 C.F.R. § 438.210(d)(1), which similarly fail to contradict Defendants' position.[9] [Pltf.'s CSOF in Opp. to Defs.' Summary Judgment Motion A at ¶ 3.] The Court concludes that Defendants' statement of facts is undisputed on this matter. Given the Supreme Court's holding in Heckler, it is clear that Plaintiff's claims regarding maintenance and/or repair of his PMD, as well as issues related to a loaner PMD, are inextricably intertwined with a Medicare benefits decision, and must be dismissed. The Court FINDS that there is no question of material fact and Defendants are entitled to judgment as a matter of law. Insofar as they challenge an alleged failure by Defendants to provide maintenance and repair of Plaintiff's PMD, and/or the denial of a loaner PMD, paragraphs 36, 73, 76-77, 79, 83, 148, 149, and 206 of the Complaint, paragraphs 2-3, 9-18, 30-35, and 40-45 of the Supplemental Complaint, and any other part of the Complaint or Supplemental Complaint related to this matter are HEREBY DISMISSED.[10]

         2. Denial of Plaintiff's PMD Requests

         Defendants argue that Plaintiff's Medicaid plan never denied his PMD request. [Mem. in Supp. of Def.'s Summary Judgment Motion A at 26.] Plaintiff asserts that the Medicaid plan knew of his need for a PMD as early as February 5, 2013, and that, because the Medicaid plan did not confirm that the PMD was covered by Medicare, they had an obligation to provide him with a new PMD. [Mem. in Opp. to Def.'s Summary Judgment Motion A at 18.]

         It is clear from the record that Plaintiff's first request for a new PMD was effectively submitted on February 5, 2013 (“First Request”), and that it was denied by Plaintiff's Medicare plan on February 19, 2013 (“First Denial”).[11] [Heywood Decl., Exh. B at 875 (First Denial); id. at 877 (First Request).[12] The First Request included only Plaintiff's Medicare number. [Heywood Decl. at ¶ 11.] For dual eligible parties, pre-authorization forms are first sent to the primary insurer - in this case, Medicare. [Id. at ¶ 3.] Plaintiff never submitted the First Request to his Medicaid plan. [Id. at ¶ 12.] On May 28, 2013 Plaintiff submitted a second request for pre-authorization of a new PMD (“Second Request”), and it was denied on June 11, 2013 (“Second Denial”). [Id., Exh. E at 852 (Second Request); id., Exh. C at 850 (Second Denial).] The Second Request also used Plaintiff's Medicare number.

         After the Second Denial, the request was transferred to Plaintiffs' Medicaid plan for possible coverage. The Medicaid plan received the Second Request on June 11, 2013, and began to review it on June 12, 2013. [Id., Exh. F (Defendants' CareOne Notification notes regarding Plaintiff's PMD requests (“Defendants' Notes”)) at 767.] The Medicaid plan determined that it needed additional information, and requested an extension in making its decision on the Second Request. [Id. at 761-62.] On June 25, 2013, Defendants informed Plaintiff that they would need more time to make their decision, and that they would need to make a home visit (“6/25/13 Letter”).[13] [Heywood Decl., Exh. G.] On June 26, 2013, Dr. Fujimoto visited Plaintiff at home, along with Sanders, Defendants' Assistive Technology Professional, Sharon Skyward (“Skyward”), Service Coordinator, and Kirsten Hackworth, Service Coordinator Manager. [Id., Exh. H (Member Notes Report for Plaintiff from 6/26/13 to 1/9/14) at 34.] Because Dr. Fujimoto believed that Medicare would cover a new PMD for Plaintiff if the request were submitted properly, on July 5, 2013, Sanders and Dr. Fujimoto had a web conference with Plaintiff's physical therapist, Debra Horiuchi, D.P.T.[14] [Defs. Summary Judgment Motion A CSOF, Decl. of Ronald Fujimoto, D.O. (“Fujimoto Decl.”) at ¶ 6.] During the web conference, Dr. Fujimoto asked “Dr. Horiuchi to withdraw the request and submit a corrected request” in order to “expedite the approval process through Medicare and Medicaid, rather than going through the appeal process.” [Id. at ¶ 7.] Thereafter, Dr. Horiuchi withdrew the Second Request, no decision was made on the Second Request, and Defendants therefore did not provide Plaintiff with any notice of decision. [Id. at ¶¶ 7-9.]

         On July 26, 2013, Experea, the PMD vendor, was instructed to make changes to Plaintiff's Medicare PMD application, [Heywood Decl., Exh. S (9/26/16 Depo. Trans. of Liane Otake) at 153-55, ] and, on August 16, 2013, Experea confirmed that it did so [id., Exh. R (8/16/13 email from Kevin Phillips at Experea Healthcare to Liane Otake)]. However, Wheelchair Professionals, the PMD provider (“WCP”), did not submit the third PMD request until November 1, 2013 (“Third Request”). [Id., Exh. L.] On November 7, 2013, WCP informed Sanders that Plaintiff had told them that he would not accept any PMD that did not include everything that he had requested, and that they were retracting the quote. [Id., Exh. M (11/7/13 email from Hillary Duran, Manager of Central Order Processing at WCP, to Sanders).] On November 9, 2013, the Third Request was denied. [Defendants' Notes at 781; Heywood Decl., Exh. N (Medicare denial of Third Request).]

         Medicaid began reviewing the Third Request on November 11, 2013, [Defendants' Notes at 781, ] and approved coverage of the PMD on November 19, 2013 (“11/19/13 Authorization”) [Heywood Decl., Exh. O (11/19/13 Authorization)]. Because he had not received the PMD by December 12, 2013, Plaintiff submitted a grievance to his Medicaid plan (“12/12/13 Grievance”). [Id., Exh. P (1/10/14 response to 12/12/13 Grievance (“1/10/14 Response”)).] The 1/10/14 Response explained that WCP informed Defendants that it was waiting on additional items that needed to be added to the PMD, but approval of those items was only requested by WCP on December 30, 2013. [Id.] Because the 11/19/13 Authorization expired on 12/31/13, a new authorization had to be opened. [11/19/13 Authorization at 467 (showing expiration date of 12/31/13); Defendants' Notes at 792.] On January 10, 2014, Dr. Horiuchi conducted a new PMD assessment that removed certain accessories that had previously been requested (“1/10/14 Assessment”).[15] [Heywood Decl., Exh. Q.] On January 13, 2014, the Medicaid plan received a new request (“Fourth Request”), and it was approved the same day. [Defendants' Notes at 784.] Finally, in February 2014, Plaintiff received a new PMD. [Heywood Decl., Exh. A (6/10/16 Depo. Trans. of Juan Rios Quinones (“Quinones Depo.”) at 121.]

         Plaintiff's efforts to challenge this progression of events falls flat. First, Plaintiff argues that he did not receive the 6/25/13 Letter, and that he was not notified that any of his healthcare providers received it. [Pltf.'s CSOF in Opp. to Def.'s Summary Judgment Motion A, Decl. of Juan Rios Quinones (“Quinones Decl.”) at ¶¶ 3-4.] Plaintiff, however, does not assert that the 6/25/13 Letter was not sent, or that the request itself violated the relevant regulations.[16] Next, Plaintiff alleges that there was an ulterior motive to Dr. Fujimoto's suggestion that Dr. Horiuchi withdraw the Second Request. See, e.g., Pltf.'s CSOF in Opp. to Summary Judgment Motion A at ¶ 33 (“Purpose was to attempt, speculatively, to establish the liability of the Medicare Plan.”). Plaintiff does not cite any documents to support this allegation, likely because it is not supported by the record. Dr. Fujimoto believed that, although Medicare would not approve a “power elevating seat, ” he “intended to add that feature to the base wheelchair under Plaintiff's Medicaid coverage once Medicare had covered what it would cover.” [Fujimoto Decl. at ¶ 5.] To that end, Dr. Fujimoto suggested that Dr. Horiuchi withdraw the Second Request and submit a new one, which he believed would save time. [Id. at ¶ 7.] Further, any attempt by Plaintiff to establish that Dr. Fujimoto's communications with Dr. Horiuchi were misleading or ill-intentioned, see Pltf.'s CSOF in Opp. to Defs.' Summary Judgment Motion A at ¶ 32, is unfounded. In response to questions from Plaintiff's attorney at her deposition, Dr. Horiuchi explained how she came to the decision to withdraw the Second Request:

Q Yeah. You testified earlier that Dr. Fujimoto told you that in order to facilitate and get [Plaintiff's] wheelchair approved more quickly, it was best to withdraw the request. Is that an accurate restatement of what you said?
A It is an accurate restatement. I'm - I do want to go on record as saying that part of that is a little bit of a guess, because, again, I'm very fuzzy on what happened in those meetings.
Q Sure. Understood. And you did testify that you at least understood Dr. Fujimoto to the extent that [Plaintiff's wheelchair] would be delayed or denied further if you didn't withdraw the request. Is that an accurate restatement of what you said?
A I think - I think a better way to say that would be that withdrawing and resubmitting the request would be faster than allowing the current process to continue.
Q Okay. So from - do you have any memory whatsoever of having an understanding or having been given a reason why the process was stopped or slowed in the case that you had submitted?
A Yes, and I know that a reason was ...

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