Rai Care Centers of Maryland I, LLC v. United States Office of Personnel Management ( 2020 )


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  •                              UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA
    RAI CARE CENTERS OF MARYLAND I,
    LLC,
    Plaintiff,
    v.                                            Civil Action No. 18-3151 (TJK)
    OFFICE OF PERSONNEL
    MANAGEMENT,
    Defendant.
    MEMORANDUM OPINION AND ORDER
    This is an action for an order directing payment of benefits under the Federal Employees
    Health Benefits Act. RAI, a dialysis provider, alleges that the Office of Personnel Management,
    which sponsors a health insurance plan that covers federal employees, failed to pay over
    $2 million for services to patients covered by the plan. OPM has moved to dismiss, arguing that
    RAI—which is proceeding as an assignee of its patients—lacks standing and has failed to state a
    claim. For the reasons explained below, the Court will deny the motion.
    Background
    The Federal Employees Health Benefits Act (FEHBA), 
    5 U.S.C. §§ 8901
     et seq., “creates
    a subsidized health insurance system for federal employees.” Doe v. Devine, 
    703 F.2d 1319
    ,
    1321 (D.C. Cir. 1983). FEHBA authorizes the Office of Personnel Management (OPM) “to
    procure and administer health benefits for federal workers by contracting with private health
    insurance carriers,” selecting the benefits available, fixing premium rates, disseminating
    information about the plan to federal employees, and making determinations on claim disputes.
    Bridges v. Blue Cross and Blue Shield Ass’n, 
    935 F. Supp. 37
    , 39 (D.D.C. 1996). Congress’s
    goal in enacting FEHBA was to “protect federal employees against the high and unpredictable
    costs of medical care and to assure that federal employee health benefits are equivalent to those
    available in the private sector so that the federal government can compete in the recruitment and
    retention of competent personnel.” Am. Fed. of Gov’t Emps., AFL-CIO v. Devine, 
    525 F. Supp. 250
    , 252 (D.D.C. 1981). To accomplish its goal, FEHBA creates a “comprehensive
    administrative enforcement mechanism for review of disputed claims” within OPM. Bridges,
    
    935 F. Supp. at 42
    . After a plan beneficiary exhausts administrative remedies, she may bring a
    “judicial action against the OPM.” Id.; see 
    5 C.F.R. § 890.107
    (c), (d).
    RAI Care Centers of Maryland I, LLC (“RAI”) is a dialysis provider that treats patients
    covered by a health insurance plan for federal employees. ECF No. 1 (“Compl.”) at 1. OPM
    sponsors the plan, which is administered by CareFirst BlueCross BlueShield (“CareFirst”) and
    governed by FEHBA. 
    Id. ¶¶ 2, 10
    . RAI alleges that from 2012 onward, CareFirst “routinely
    told” it that, consistent with the plan’s governing document, CareFirst would pay 65% of RAI’s
    billed charges as an out-of-network provider. 
    Id. at 1
    , ¶¶ 11–15. CareFirst paid RAI at that rate
    until 2015, when it abruptly reduced payments for services to nine patients to between 0–11% of
    billed charges. 
    Id.
     ¶¶ 25–26, 33, 42, 51, 60, 69, 78, 87, 96, 105. RAI alleges that CareFirst
    ultimately paid 65% of billed charges for two other patients treated in 2015, but despite many
    calls, letters, and requests for reconsideration, neither CareFirst nor OPM ever remedied the
    underpayments for the nine patients at issue. 
    Id.
     ¶¶ 109–12.
    In December 2018, RAI sued for repayment as an assignee of these patients and alleged
    that it had either exhausted or “should be deemed to have exhausted” its administrative remedies.
    
    Id. ¶ 162
    . It seeks an order under FEHBA and 
    5 C.F.R. § 890.107
    (c) directing OPM to require
    2
    CareFirst to pay it the approximately $2.2 million allegedly owed. 
    Id.
     ¶¶ 173–74. RAI moved to
    dismiss. See generally ECF No. 12-1; ECF No. 16; ECF No. 17.
    Legal Standard
    To survive a Rule 12(b)(1) motion to dismiss for lack of standing, “a complaint must
    state a plausible claim that the plaintiff has suffered an injury in fact fairly traceable to the
    actions of the defendant that is likely to be redressed by a favorable decision on the merits.”
    Humane Soc’y v. Vilsack, 
    797 F.3d 4
    , 8 (D.C. Cir. 2015). And likewise, to survive a motion to
    dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as
    true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 
    556 U.S. 662
    , 678
    (2009) (quoting Bell Atl. Corp. v. Twombly, 
    550 U.S. 544
    , 570 (2007)). In considering the
    motion to dismiss, the Court will “accept the well-pleaded factual allegations as true and draw all
    reasonable inferences from those allegations in the plaintiff’s favor.” Arpaio v. Obama, 
    797 F.3d 11
    , 19 (D.C. Cir. 2015). But “[t]hreadbare recitals of the elements of a cause of action,
    supported by mere conclusory statements, do not suffice.” Iqbal, 
    556 U.S. at 678
    .
    Analysis
    A.      Rule 12(b)(1)
    1.      Standing
    OPM asserts that RAI lacks standing for two reasons. OPM first argues that, even if RAI
    can proceed as an assignee, it has failed to adequately plead that status. ECF No. 12-1 at 9–11.
    Because assignees have standing to sue based on the assignment, this defect in pleading would
    mean that RAI lacks standing. See Sprint Commc’ns Co. v. APCC Servs., Inc., 
    554 U.S. 269
    ,
    284–86 (2008); cf. Belize Soc. Dev. Ltd. v. Gov’t of Belize, 
    5 F. Supp. 3d 25
    , 35 (D.D.C. 2013)
    (addressing the argument that a valid assignment was required for a plaintiff to enforce an
    arbitration award). OPM argues that RAI does not “allege any facts about the purported
    3
    assignments, identifying their nature, their limitations, or their duration.” ECF No. 12-1 at 10.
    “By failing to identify the assignors or provide any details of the assignments,” OPM says, “RAI
    has not adequately pleaded the existence of assignments.” 
    Id.
     This argument comes up well
    short.
    RAI alleges that “[a]t the outset of each Patient’s treatment at a Plaintiff facility, each
    Patient signed an agreement assigning his/her rights and benefits under the Plan to Plaintiff,” that
    “[t]hrough these Assignments, each Patient provided written consent for Plaintiff to pursue and
    receive benefits due under the Plan for dialysis treatments provided by Plaintiff,” and that as a
    result, it may act as the patients’ personal representative and “pursue legal remedies afforded to
    them.” Compl. ¶¶ 18–20. RAI also claims that each patient “assigned [their] rights and benefits
    under the Plan and consented to Plaintiff’s pursuit and receipt of benefits owed to [the patient],”
    and RAI details the month and year of each assignment. 
    Id. ¶¶ 29, 38, 47, 56, 65, 74, 83, 92, 101
    . Thus, the complaint identifies specific patients, the approximate dates they executed
    assignment agreements, and that they “assigned [their] rights and benefits under the Plan” to
    RAI. 
    Id.
     Taking these allegations as true, RAI has plausibly alleged that it is the assignee of the
    nine patients at issue.
    OPM, citing several unpublished district court cases from outside this Circuit, faults RAI
    for failing to allege more details about the assignments, such as their “nature, their limitations, or
    their duration.” ECF No. 12-1 at 10; see, e.g., Progressive Spine & Orthopedics v. Empire Blue
    Cross Blue Shield, No. 16-cv-1649, 
    2017 WL 751851
    , at *5 (D.N.J. Feb. 27, 2017) (finding that
    a healthcare provider lacked standing as an assignee under ERISA because it failed to either
    plead the language of the assignment in the complaint or attach the assignment document to it,
    although it alleged that the patients had signed contracts assigning their benefits to the provider).
    4
    But RAI faces no heightened pleading standard to allege a valid assignment, and the Court
    declines to impose one. See N. Cypress Med. Ctr. Operating Co. v. CIGNA Healthcare, 
    782 F. Supp. 2d 294
    , 301 (S.D. Tex. 2011) (rejecting the argument that a complaint that alleged each
    patient had assigned their rights under ERISA to the healthcare provider was too conclusory,
    because accepting it would “hold [Plaintiff] to a higher standard than the case law requires.”),
    aff’d, 
    781 F.3d 182
    , 191–92 (5th Cir. 2015). OPM also cites Spine Care Del., LLC v. State Farm
    Mut. Auto. Ins. Co., No. 17-cv-1816, 
    2018 WL 810112
     (D. Del. Feb. 9, 2018). But there, the
    court’s decision to dismiss the complaint with leave to amend turned on its wholesale failure to
    identify the patient-assignors in any way. 
    Id.
     at *3–4. Here, although the patients are identified
    with pseudonyms such as “Patient A” to protect their medical privacy, they are individually
    identified with more specificity. And RAI has since provided information to OPM to further
    identify them. See ECF No. 17-1. 1
    RAI has alleged that on or about certain dates, the specified patients signed contracts
    assigning their claims for healthcare benefits to RAI. Compl. ¶¶ 29, 38, 47, 56, 65, 74, 83, 92,
    101. At a later point in the litigation, RAI will need to prove the truth of those allegations, but it
    has adequately pled them.
    1
    OPM argues that this chart is insufficient to identify the patients, because while nine patients
    are identified in the complaint as Patients A through I, the chart includes two additional ones,
    referred to as Patients J and K. While the inclusion of these additional patients is somewhat
    confusing—perhaps they are those two whose claims were ultimately resolved and thus are not at
    issue for that reason, Compl. ¶ 112— there is no reason their inclusion should affect OPM’s
    ability to identify Patients A through I, the only patients whose claims apparently are at issue, to
    compile the administrative record. Thus, because the complaint is not “so vague or ambiguous
    that the [defendant] cannot reasonably prepare a response,” the Court will deny OPM’s request
    in the alternative for a more definite statement. Fed. R. Civ. P. 12(e); see Cheeks v. Fort Myer
    Const. Co., 
    71 F. Supp. 3d 163
    , 168 (D.D.C. 2014) (“Courts are reluctant to compel a more
    definite statement pursuant to Rule 12(e) and to prevent Rule 12(e) from becoming a substitute
    for discovery, courts will generally deny a motion for a more definite statement where the
    information sought may be obtained in discovery.” (cleaned up)).
    5
    OPM next argues that because the health insurance plan documents require CareFirst to
    pay benefits to the patients, RAI lacks standing because the Court cannot redress its injury. ECF
    No. 12-1 at 11–13. But it is far from clear that the Court cannot order payment directly to RAI.
    
    8 C.F.R. § 890.107
    (c) states that recovery in this kind of suit is “limited to a court order directing
    OPM to require the carrier to pay the amount of benefits in dispute,” but it says nothing about
    whom the carrier must pay. OPM correctly notes that according to the governing plan document,
    CareFirst pays benefits for out-of-network treatment to the patient, who then “must” pay the
    provider, but it is unclear whether the plan document binds the Court. 2 ECF No. 1-1 at 14.
    Ultimately, though, this uncertainty does not matter for purposes of resolving whether RAI has
    standing. Even if the Court were to order OPM to direct CareFirst to pay the patients, according
    to RAI, the patients’ assignments require them to turn that judgment over to RAI. ECF No. 16 at
    10; Compl. ¶¶ 29, 38, 47, 56, 65, 74, 83, 92, 101. That would redress RAI’s injury, although in a
    roundabout way.
    OPM rejoins that this chain of events is too “speculative” to show redressability, because
    a patient could be deceased, bankrupt, or otherwise legally prohibited from transferring an award
    to RAI. ECF No. 12-1 at 12 & n.6. But a plaintiff must show only that it is “likely,” not certain,
    that a favorable decision will redress her injury. Lujan v. Defs. of Wildlife, 
    504 U.S. 555
    , 561
    (1992) (quotation omitted). And where “relief for the petitioner depends on actions by a third
    party not before the court, the petitioner must demonstrate that a favorable decision would create
    ‘a significant increase in the likelihood that the plaintiff would obtain relief that directly
    2
    Although OPM argues that “[t]his Court could not order non-party CareFirst to deviate from
    the Plan Brochure provisions and instead pay the amounts directly to RAI,” it cites no authority
    for that proposition, and RAI does not address at all whether the Court could order OPM to direct
    CareFirst to deviate from that document. ECF No. 12-1 at 12.
    6
    redresses the injury suffered.’” Klamath Water Users Ass’n v. FERC, 
    534 F.3d 735
    , 739 (D.C.
    Cir. 2008). Here, RAI has shown such a “significant increase.” It is of course possible that an
    unforeseen circumstance may prevent an individual patient from remitting any judgment to
    RAI—but that is OPM’s speculation, not RAI’s. For these reasons, OPM’s challenge to RAI’s
    standing fails. 3
    2.   Sovereign Immunity
    OPM also argues that RAI’s complaint must be dismissed because it is barred by
    sovereign immunity, which is properly considered under Rule 12(b)(1). Morrow v. United
    States, 
    723 F. Supp. 2d 71
    , 79 (D.D.C. 2010); ECF No. 12-1 at 17–18. Under 
    5 U.S.C. § 8912
    ,
    sovereign immunity is waived for claims “against the United States founded on” FEHBA. See
    Nat’l Treasury Emps. Union v. Campbell, 
    589 F.2d 669
    , 673 & n.6 (D.C. Cir. 1978). That
    provision operates as a “broad consent to all suits brought to enforce rights and obligations
    created by the Health Benefits Act.” 
    Id. at 674
    . Still, OPM contends that Congress did not
    explicitly waive suits for providers proceeding as assignees, noting that a waiver of sovereign
    immunity must be “strictly construed” in favor of the sovereign. Sossamon v. Texas, 
    563 U.S. 277
    , 292 (2011). But the broad language of 
    8 U.S.C. § 8912
    , which does not refer to any
    particular type of plaintiff, plainly covers this suit. OPM also argues that a different section of
    the statute, 
    5 U.S.C. § 8902
    (j), excludes assignees from the waiver of sovereign immunity. That
    section reads, “Each contract under this chapter shall require the carrier to agree to pay for or
    provide a health service or supply in an individual case if the Office finds that the employee,
    3
    The Court’s conclusion on this point is further bolstered by the Supreme Court’s decision in
    Sprint Communications Co. In that case, the plaintiff-assignees were contractually obliged to
    remit any award to the assignors, whereas here, the assignors must pay the plaintiff-assignee.
    Still, the Court held that such assignees “for collection” have standing to bring their assignors’
    claims, even when the assignee will ultimately receive no part of any judgment. 
    554 U.S. at 271, 275
    , 280–81, 284–85.
    7
    annuitant, family member, former spouse, or person having continued coverage under section
    8905a of this title is entitled thereto under the terms of the contract.” This provision has nothing
    to do with sovereign immunity. RAI seeks to require the carrier, CareFirst, to pay for services
    which it argues the patients, who had coverage under FEHBA, were entitled to under their plans.
    Nothing about this suit conflicts with § 8902(j). 4 For these reasons, this suit is not barred by
    sovereign immunity, and the Court will not dismiss it on that basis.
    B.      Rule 12(b)(6)
    1.      OPM’s Assignee Status Under FEHBA
    OPM argues that RAI fails to state a claim because it is not a proper plaintiff under
    FEHBA. As mentioned, RAI proceeds as the assignee of its patients, and in support alleges that
    each patient “provided written consent for Plaintiff to pursue and receive benefits due under the
    Plan for dialysis treatments provided by Plaintiffs.” Compl. ¶ 19. OPM argues that FEHBA
    does not permit such assignments, and that under OPM’s binding regulations, only a “covered
    individual” may sue for payment of benefits. 
    8 C.F.R. § 890.107
    (c); ECF No. 12-1 at 6–9. The
    regulations define “covered individual” to mean “an enrollee or a covered family member”
    which, OPM says, excludes assignees. 
    5 C.F.R. § 890.101
    .
    But this conclusion does not follow from the text of the regulation as neatly as OPM
    argues. 
    8 C.F.R. § 890.107
    (c) says that covered individuals “may” sue for denial of health
    4
    OPM also argues in several contexts that permitting assignees to bring FEHBA suits would run
    contrary to the purpose of the statute, which is to “protect federal employees against the high and
    unpredictable costs of medical care,” not to protect providers. Am. Fed. of Gov’t Emps., 
    525 F. Supp. at 252
    . But this suit is not necessarily contrary to that purpose, even if that
    consideration could override the statute’s text. Although there is no information in the record
    about whether the patients in this case have been required to make up for the alleged shortfalls of
    CareFirst and OPM, that may happen in some instances. See ECF No. 1-1 at 14 (“You must pay
    any difference between the amount Non-participating providers charge and our allowance
    (except in certain circumstances . . . ).”).
    8
    benefits, but it does not say that “only” such individuals can sue or specifically exclude
    assignees. And typically, “an assignee stands in the shoes of his assignor, deriving the same . . .
    rights and remedies [that] the assignor then possessed.” Fox-Greenwald Sheet Metal Co. v.
    Markowitz Bros., Inc., 
    452 F.2d 1346
    , 1357 n.69 (D.C. Cir. 1971); see also Psych. Inst. V. Conn.
    Gen. Life Ins. Co., 
    780 F. Supp. 24
    , 30 (D.D.C. 1992) (“Under federal common law, an assignee
    has the right to bring the claims of his assignor.”). Thus, an assignee brings claims that belong to
    another who is entitled to sue; it does not pursue its own, independent claims. Without an
    explicit exclusion of assignees under FEHBA, it is not clear why the assignee of a covered
    individual would be unable to sue to vindicate that person’s rights.
    OPM also asserts that the legislative history of 
    5 C.F.R. § 8901.107
     shows that the
    agency intended to prevent assignees from bringing a patient’s claims. ECF No. 12-1 at 6. This
    argument gets it no further. Even putting aside the problems with using legislative history as an
    interpretive tool, on balance, the document OPM cites suggests the opposite conclusion. That
    document is OPM’s response to comments submitted during notice-and-comment rulemaking:
    Three commenters suggested that we amend the regulations to
    clarify that the regulations apply to providers to whom the covered
    individual has assigned the right to pursue the claim. We have not
    accepted this suggestion because the right of access to the disputed
    claims process belongs to the covered individual. We have amended
    the interim regulations to clarify that another person or entity,
    whether or not a provider, can gain access to the disputed claims
    process only when acting on behalf of the covered individual and
    with the covered individual’s specific written consent.
    Federal Employees Health Benefits Program: Filing Claims; Disputed Claims Procedures and
    Court Actions, 
    61 Fed. Reg. 15,177
    , 15,177 (Apr. 5, 1996). To be sure, this response shows that
    OPM declined to go so far as to say that the “regulations apply” to assignees. But at the same
    time, it recognized that “another person or entity, whether or not a provider, can gain access to
    the disputed claims process . . . when acting on behalf of the covered individual and with the
    9
    covered individual’s specific written consent.” 
    Id.
     That is precisely RAI’s position. Moreover,
    it is unclear (at best) whether the “disputed claims process” referenced in this response includes
    access to judicial review, rather than referring solely to the administrative procedures that must
    be exhausted beforehand. Cf. ECF No. 17 at 8 (distinguishing between the “administrative
    disputed claims process” and the “judicial review provision” of the regulation).
    Finally, although no case from this Circuit has addressed whether an assignee may sue
    under FEHBA and 
    8 C.F.R. § 8901.107
    , the parties have identified no court anywhere that has
    concluded that assignees are prohibited from doing so. Without specifically addressing the issue,
    the Tenth and Fifth Circuits have permitted suits along these lines to proceed. See Weight Loss
    Healthcare Ctrs. of Am., Inc. v. OPM, 
    655 F.3d 1202
    , 1204 (10th Cir. 2011); Transitional
    Learning Cmty. at Galveston, Inc. v. OPM, 
    220 F.3d 427
    , 429 (5th Cir. 2000). And while OPM
    cites Cedars-Sinai Med. Ctr. v. Nat’l League of Postmasters, 
    497 F.3d 972
    , 976 (9th Cir. 2007),
    that case held merely that FEHBA’s administrative procedures do not apply to a provider’s own
    contractual claims against insurance carriers who administer health insurance programs for
    federal employees. 
    Id. at 976
    .
    Because nothing prohibits RAI from pursuing a patient’s claim as an assignee with her
    specific written consent, the Court will deny OPM’s motion to dismiss for failure to state a claim
    on those grounds.
    2.      Exhaustion of Remedies
    Finally, OPM claims that RAI has not properly pleaded that it has exhausted its
    administrative remedies because its allegations on this score are too conclusory to pass muster.
    An individual appealing the denial of a claim under FEHBA must follow a detailed series of
    administrative steps to request reconsideration by both the health insurance carrier and OPM
    before suing. See 
    5 C.F.R. §§ 890.105
    , 890.107. These include filing a request for
    10
    reconsideration with the carrier within six months after being notified that the claim has been
    denied and requesting OPM review within 90 days after the carrier denies reconsideration. 
    5 CFR §§ 890.105
    (b), (e)(1). Although RAI pleads that it has “diligently pursued, and exhausted
    or should be deemed to have exhausted, administrative remedies” and sets forth many allegations
    about communications it had with CareFirst and OPM as to each patient’s claim, OPM argues
    that it is unclear whether RAI has taken the steps required by 
    5 C.F.R. § 890.105
    . Compl. ¶ 162.
    But RAI must plead facts relating to exhaustion of administrative remedies only if that
    exhaustion is jurisdictional. And to the contrary, if exhaustion is merely a “claim-processing
    rule, the failure to pursue the required administrative remedies would be an affirmative defense,
    which the defendant would have the burden of pleading and proving.” T.H. v. District of
    Columbia, 
    255 F. Supp. 3d 55
    , 59 (D.D.C. 2017). Thus, under those circumstances, failure to
    plead exhaustion—as opposed to actually failing to exhaust—would not be grounds for
    dismissal. See Duffy v. Dodaro, No. 16-cv-1178 (RDM), 
    2020 WL 1323225
    , at *8 n.2 (D.D.C.
    Mar. 21, 2020). And critically, without a clear statement from Congress to the contrary, courts
    must treat statutory limitations as nonjurisdictional. Sebelius v. Auburn Reg’l Med. Ctr., 
    568 U.S. 145
    , 153 (2013). Here, no party has pointed to such a statement or argued that FEHBA’s
    exhaustion requirement is jurisdictional. 5 Indeed, FEHBA’s exhaustion regulations are just
    that—regulations—rather than statutes passed by Congress. See 
    5 C.F.R. § 890.105
    ; Pension
    5
    OPM does mention in a footnote in its reply that the Tenth Circuit found FEHBA’s exhaustion
    requirements to be jurisdictional in Bryan v. Office of Personnel Management, 
    165 F.3d 1315
    ,
    1318–19 (10th Cir. 1999). ECF No. 17 at 11 n.6. But that Circuit strongly questioned its
    holding in Bryan after the Supreme Court clarified in Arbaugh v. Y&H Corp., 
    546 U.S. 500
    (2006) that for an exhaustion requirement to be jurisdictional, Congress must clearly say so.
    Kansas ex rel. Kansas Dep’t for Children & Families v. SourceAmerica, 
    874 F.3d 1226
    , 1250
    (10th Cir. 2017).
    11
    Ben. Gar. Corp. v. Carter & Tillery Enters., 
    133 F.3d 1183
    , 1187 (9th Cir. 1998) (“[W]hen, as in
    this case, the exhaustion requirement is created by agency regulations, the decision whether to
    require exhaustion is a matter for district court discretion.” (quoting Kobleur v. Grp.
    Hospitalization & Med. Servs., 
    954 F.2d 705
    , 711 (11th Cir. 1992)). Because RAI did not have
    to plead exhaustion, OPM’s argument that the complaint should be dismissed for failing to do so
    is meritless. See Scholl v. QualMed, Inc., 
    103 F. Supp. 2d 850
    , 853 (E.D. Pa. 2000). Of course,
    OPM is free to file a motion for summary judgment, supported by the administrative record,
    arguing that RAI did not in fact exhaust its administrative remedies. 6
    6
    OPM also argues, more specifically, that RAI’s allegations in the complaint show that its
    claims were not exhausted with respect to Patient C. ECF No. 12-1 at 14–15. To be sure, when
    facts supporting an affirmative defense are apparent from the face of the complaint, the
    defendant may assert the defense in a motion to dismiss. Duffy, 
    2020 WL 1323225
    , at *8 n.2.
    But that is not the case here. When a carrier fails to respond to a request to reconsider a benefit
    decision, the regulations require a covered individual to submit a request for OPM review within
    120 days. 
    5 C.F.R. § 890.105
    (e)(1)(ii). RAI alleges that CareFirst failed to respond to RAI’s
    requests for reconsideration relating to Patient C that were submitted “at least” on four dates
    spanning from October 20, 2015 to November 14, 2016, and that it then submitted requests for
    OPM review on “at least” three dates, the earliest of which was March 31, 2016. Compl.
    ¶¶ 125–27. OPM points out that 163 days elapsed between October 20, 2015 and March 31,
    2016. But even assuming that the clock begins to run from the first request to the carrier if the
    covered individual files multiple requests, RAI’s allegation that it filed requests for OPM review
    on “at least” the dates specified leaves open the possibility that it also filed a request on an earlier
    date. Compl. ¶ 127. So at bottom, it is not apparent from the face of the complaint that RAI
    failed to exhaust administrative remedies as to Patient C.
    12
    Conclusion and Order
    For all these reasons, OPM’s Motion to Dismiss, ECF No. 12, is DENIED. In addition,
    because the Court did not require an administrative record to resolve this motion, OPM’s Motion
    for Relief from the Requirements of Local Civil Rule 7(n), ECF No. 13, is GRANTED.
    SO ORDERED.
    /s/ Timothy J. Kelly
    TIMOTHY J. KELLY
    United States District Judge
    Date: May 8, 2020.
    13
    

Document Info

Docket Number: Civil Action No. 2018-3151

Judges: Judge Timothy J. Kelly

Filed Date: 5/8/2020

Precedential Status: Precedential

Modified Date: 5/8/2020

Authorities (21)

North Cypress Medical Center Operating Co. v. Cigna ... , 782 F. Supp. 2d 294 ( 2011 )

Scholl v. QualMed, Inc. , 103 F. Supp. 2d 850 ( 2000 )

Cedars-Sinai Medical Center v. National League of ... , 497 F.3d 972 ( 2007 )

Lujan v. Defenders of Wildlife , 112 S. Ct. 2130 ( 1992 )

Bridges v. Blue Cross and Blue Shield Ass'n , 935 F. Supp. 37 ( 1996 )

Morrow v. United States , 723 F. Supp. 2d 71 ( 2010 )

Lorita Bryan v. Office of Personnel Management , 165 F.3d 1315 ( 1999 )

National Treasury Employees Union v. Alan K. Campbell, ... , 589 F.2d 669 ( 1978 )

Transitional Learnin v. US OPM , 220 F.3d 427 ( 2000 )

Arbaugh v. Y & H Corp. , 126 S. Ct. 1235 ( 2006 )

Bell Atlantic Corp. v. Twombly , 127 S. Ct. 1955 ( 2007 )

Ashcroft v. Iqbal , 129 S. Ct. 1937 ( 2009 )

Sossamon v. Texas , 131 S. Ct. 1651 ( 2011 )

Sebelius v. Auburn Regional Medical Center , 133 S. Ct. 817 ( 2013 )

patricia-m-kobleur-individually-and-on-behalf-of-her-husband-and-ward , 954 F.2d 705 ( 1992 )

John and Joan Doe v. Donald J. Devine, Director, Office of ... , 703 F.2d 1319 ( 1983 )

Klamath Water Users Ass'n v. Federal Energy Regulatory ... , 534 F.3d 735 ( 2008 )

21-employee-benefits-cas-2377-98-cal-daily-op-serv-238-98-daily , 133 F.3d 1183 ( 1998 )

Psychiatric Institute of Washington, D.C., Inc. v. ... , 780 F. Supp. 24 ( 1992 )

American Federation of Government Employees v. Devine , 525 F. Supp. 250 ( 1981 )

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