02-004561 June Slote vs. Department Of Management Services, Division Of State Group Insurance Status: Closed Recommended Order on Monday, February 17, 2003.

Summary: Magnetic Resonance Imaging examination was not a covered procedure under the state group health insurance plan.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JUNE SLOTE, )

)

Petitioner, )

)

vs. ) Case No. 02 - 4561

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF STATE )

GROUP INSURANCE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above - styled

matter was held on January 30, 2003, by vide o teleconference

between West Palm Beach and Tallahassee, Florida, before

Administrative Law Judge Claude B. Arrington of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: June Slote, pro se

423 Fourth Terr ace

Palm Beach Gardens, Florida 33418

For Respondent: Julia P. Forrester, Esquire

Department of Management Services

4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399 - 0950

STATEMENT OF THE ISSUE

Whether Petitioner's claim against her state group health

insurance company for services related to a Magnetic Resonance

Imaging examination (MRI) should be granted or denied.

PRELIMINARY STATEMENT

During a physical examination, Petitioner's physician

detected a suspicious mass in her right breast. The physician

thereafter ordered a series of diagnostic examinations,

including an MRI examination on Petitioner's right breast. At

issue is whether an MRI used as a diagnostic tool for breast

cancer is excluded from the state group health insurance

contract as being an "experimental or investigational" service.

There are two components of the MRI examination at issue in

this proceeding. The first is the professional services

component charged by the doctor who read the MRI. The second is

the facility fee charged by the facility at which the MRI was

performed. Petitioner's claim letter, Respondent's denial, and

the request for a formal hearing to challe nge the denial of the

claim pertain only to the first item. Respondent has paid the

second item and announced at the final hearing that it would

seek reimbursement, if it prevails in this proceeding.

Petitioner agreed that both items should be decided in this one

proceeding. With the consent of both parties, this Recommended

Order pertains to both items.

At the hearing, Respondent presented its case first to

expedite the proceeding. Respondent offered five sequentially

numbered exhibits, each of which was admitted into evidence.

Respondent presented the testimony of Melody Bartela (a

registered nurse employed by Respondent as a benefit

determination and appeal coordinator) and Dr. William S. Wood

(medical director of Blue Cross Blue Shield of Florida) .

Petitioner testified on her own behalf, but she presented no

additional testimony. 1/

No transcript of the proceedings has been filed.

Respondent filed a Proposed Recommended Order, which has been

duly considered by the undersigned in the preparation of this

Recommended Order. Petitioner did not file a proposed

recommended order.

FINDINGS OF FACT

1. At all times material hereto, Petitioner was employed

by the State of Florida and was a participant in the State of

Florida group health insurance p lan, which is a self - insured

plan administered by the State of Florida in conjunction with

the plan's third party administrator, Blue Cross Blue Shield of

Florida (BCBSF). This plan is frequently referred to as the PPO

Plan, an acronym for preferred provi der organization.

2. Prior to April 26, 2002, Petitioner's physician

detected a lump in Petitioner's right breast. Petitioner's

physician ordered mammography and ultrasound examinations to be

performed on Petitioner's right breast. Those examinations we re

performed on April 1, 2002. Following those tests, Petitioner's

physician ordered an MRI examination of the right breast, which

was performed on April 26, 2002, and is the procedure at issue

in this proceeding. Following that MRI, Petitioner had anoth er

mammography and ultrasound for the diagnosis and treatment of

breast cancer.

3. Respondent has paid Petitioner's claims for coverage of

the mammography and ultrasound examinations.

4. Respondent has denied payment for the professional fee

associat ed with the MRI in the amount of $215.00.

5. Respondent has paid the facility fee associated with

the MRI in the amount of $1,705.00. Respondent asserts that the

payment of that fee was in error and intends to seek

reimbursement for that payment if it prevails in this

proceeding.

6. The terms of coverage of the state group health

insurance plan are set forth in a document entitled "State

Employees' PPO Plan Group Health Insurance Plan Booklet and

Benefit Document" (Benefit Document).

7. The Benefi t Document (at page 31, paragraph 47 of the

section entitled "Services Not Covered By The Plan")

specifically excludes the following from coverage:

47. Services and procedures considered by

BCBSF to be experimental or investigational,

or services and proc edures not in accordance

with generally accepted professional medical

standards, including complications resulting

from these non - covered services.

8. The Benefit Document has a section entitled

"Definitions of Selected Terms Used By The Plan" beginning at

page 49. The definition of the phrase "experimental or

investigational services", found at page 51, includes, in

pertinent part, the following:

. . . any evaluation, treatment, therapy, or

device that:

* * *

is generally regarded by experts as

requiring more study to determine maximum

dosage, toxicity, safety or efficacy, or to

determine the efficacy compared to standard

treatment for the condition

has not been proven safe and effective for

treatment of the condition based on the most

recentl y published medical literature of the

U.S., Canada or Great Britain using

generally accepted scientific, medical or

public health methodologies or statistical

practices

is not accepted in consensus by practicing

doctors as safe and effective for the

con dition

is not regularly used by practicing

doctors to treat patients with the same or a

similar condition

9. The Benefit Document provides at page 51 that BCBSF and

the Division of State Group Insurance determine whether a

service is experimental or investigational.

10. The testimony of Dr. Wood established that an MRI of

the breast is experimental or inve stigational within the meaning

of the Benefit Document. 2/ MRI examinations of the breast are

not reliable diagnostic tools because such examinations result

in an unacceptable number of cases where an MRI produces false

negative findings that reflect the absence of cancer where

cancer is, in fact, present in the breast. According to

Dr. Wood, an MRI cannot be relied upon and should not be used to

avoid a biopsy of a suspicious mass because a patient would run

an unacceptable risk that the detection of ca ncer may be delayed

or missed.

11. Dr. Wood also testified that radiologists in Florida

performing services for the state group insurance health plan

have been informed of BCBSF's position. Petitioner's doctors

did not inform her prior to the examinat ion that the MRI

examination would not be covered by her insurance plan.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of these

proceedings pursuant to Sections 120.569 and 120.57 , Florida

Statutes.

13. Pursuant to Section 110.123, Florida Statutes, the

Division of State Group Insurance is created within the

Department of Management Services and is responsible for

administering the state group insurance program to which

Petition er subscribes.

14. Respondent has the burden of proving that the claimed

services are excluded from the state group insurance plan.

Comprehensive Health Association v. Carmichael , 706 So. 2d 319

(Fla. 4th DCA 1997). Respondent has met that burden in t his

proceeding.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED that Respondent

enter a final order denying coverage for the MRI claims

submitted by Petitioner.

DONE AND ENTERED this 17th day of February, 2003, in

Tallahassee, Leon Coun ty, Florida.

___________________________________

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fa x Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of February, 2003.

ENDNOTES

1/ Petitioner presented no expert testimony in this proceeding

and the opinions expressed by Respondent's witnesses were not

contradicted. Because the expert testimony was one - side d, the

findings and conclusions reached in this proceeding as to the

efficacy of MRI examinations of the breast should be limited to

this case only.

2/ In making the findings contained in this Recommended Order,

the undersigned has considered Respondent 's Exhibit 1, which is

a letter from Petitioner's physician. The letter is

inconsistent with the competent evidence presented in this

proceeding to the extent the letter infers that the subject MRI

was the diagnostic tool that detected the suspicious lump . The

letter is irrelevant to the extent that it argues that the

ultrasound examination was appropriate.

COPIES FURNISHED:

June Slote

423 Fourth Terrace

Palm Beach Gardens, Florida 33418

Julia P. Forrester, Esquire

Department of Management Services

4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399 - 0950

Simone Marstiller, Interim Secretary

Department of Management Services

4050 Esplanade Way

Tallahassee, Florida 32399 - 0950

Robert Hosay, Interim General Counsel

Department of Management Services

4050 Esplanade Way

Tallahassee, Florida 32399 - 0950

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions

t o this recommended order should be filed with the agency that

will issue the final order in this case.