Plaintiff, a periodontist, filed a putative class action against WellPoint Health Networks, alleging that it used a flawed method in determining the “usual, customary, and reasonable” amount of reimbursement to patients for dental services.
Before filing the lawsuit, plaintiff had received payment and an explanation of benefits from Wellpoint for services provided to a particular patient, for which the patient had received only a partial reimbursement. The EOB stated that the provider could file for reconsideration on a patient’s behalf.
Plaintiff wrote to Wellpoint requesting information about how it calculated its rates. Wellpoint responded with a letter explaining that payments were made in accordance with the Health Insurance Association of America fee schedule. Plaintiff did not contact Wellpoint again before filing the lawsuit.
Wellpoint filed a motion for summary judgment, asserting that plaintiff failed to exhaust his administrative remedies under ERISA. Plaintiff argued that his letter requesting information served as the administrative appeal.
The Eleventh Circuit upheld the district court’s award of summary judgment in favor of Wellpoint, noting that plaintiff’s letter did not challenge the partial denial of benefits or request that Wellpoint perform any kind of review. The court held that a “rear-guard attempt to turn a request for information … into a demand for administrative review must be rejected.”
The Eleventh Circuit also held that plaintiff failed to establish that pursuing Wellpoint’s administrative appeal process would have been futile. Because plaintiff failed even to initiate the administrative review process, the district court was left to speculate whether Wellpoint would have conducted a thorough and adequate review of a hypothetical administrative appeal. In short, “[m]ere speculation is not enough to fulfill the futility exception …,” the court said.
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