Conahan v. Sebelius

Medicare Advantage Plans are not required to reimburse a patient when she unilateraly seeks the surgical removal of a tumor, after chemotherapy was found to be “available, accessible, and adequate” by the healthcare provider.

Glaser was enrolled in the Kaiser Foundation Health Plan, Inc. (Kaiser) Senior Advantage plan, which is a Medicare Advantage plan. Under federal law, Medicare Advantage plans are required to make their services “available, accessible, and adequate,” and must cover “urgently needed services.” Glaser was diagnosed with liver cancer in 2006. Kaiser’s Tumor Board, recommended chemotherapy rather than surgery. When Glaser was told that surgery would not be covered, she had the tumor removed by a surgeon unaffiliated with Kaiser. Kaiser then denied her request for a $150,000 reimbursement. Glaser sought multiple administrative remedies and ultimately filed a complaint against the Secretary of Health and Human Services (HHS) in district court. The court affirmed the Medicare Appeals Council (MAC) decision that Medicare regulations do not require Kaiser to pay for the surgery. Glaser died in early 2011 and Conahan, the personal representative of Glaser’s estate, was substituted as the Plaintiff-Appellant for this appeal. The Ninth Circuit found that Kaiser’s services had been “available, accessible, and adequate” because they had created an appropriate treatment plan involving the shrinking of the tumor through chemotherapy and then revisiting the idea of surgery. The Court also found that the HHS did not consider denial of coverage an “unusual and extraordinary circumstance” which would authorize coverage for “urgently needed services.” Therefore, the district court was correct in upholding the MAC’s conclusion that Kaiser was not required to pay for the surgery. AFFIRMED