Conahan v. Sebelius
659 F.3d 1246
9th Cir.2011Background
- Glaser enrolled in Kaiser Permanente Senior Advantage (Medicare Advantage).
- Kaiser declined to cover liver resection after Tumor Board concluded significant liver removal risk; Dr Lin-Hurtubise performed the surgery anyway.
- Glaser underwent approximately 70% liver resection on Oct. 12, 2006 with post-operative complications.
- Glaser sought reimbursement of ~$150,000; Kaiser denied; Maximus affirmed Kaiser’s denial; ALJ reversed in 2007; MAC reversed in 2008.
- District court affirmed MAC; Glaser died in 2011 and Conahan substituted as plaintiff-appellant to continue the appeal.
- Regulations at issue include 42 C.F.R. § 422.112(a)(3) (available/accessible/adequate) and § 422.112(a)(9) with § 422.113(b)(1)(iii) (urgently needed services).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Availability/adequacy of services under §422.112(a)(3) | Conahan: Kaiser's refusal rendered services unavailable, inaccessible, or inadequate. | Kaiser: in-network care adequate; decision supported by Tumor Board; not required to cover. | Substantial evidence supports MAC; Kaiser not required to pay. |
| Urgently needed services under §422.112(a)(9) and §422.113(b)(1)(iii) | Conahan: denial rendered network temporarily unavailable; surgery was urgently needed. | Regulation not triggered by denial of coverage; agency reasonable interpretation. | Regulation not triggered by denial; Kaiser not required to pay. |
Key Cases Cited
- Richardson v. Perales, 402 U.S. 389 (U.S. 1971) (substantial evidence standard; credibility not controlling here)
- Thomas Jefferson Univ. v. Shalala, 512 U.S. 504 (U.S. 1994) (agency's interpretation receives deference unless plainly erroneous)
- American Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490 (U.S. 1981) (administrative deference to agency rulemaking; administrative interpretation afforded deference)
- Pogue v. United States Dep't of Labor, 940 F.2d 1287 (9th Cir. 1991) (credibility of ALJ findings; distinguishable context; deference to MAC final decision)
- Heckler v. Ringer, 466 U.S. 602 (U.S. 1984) (final decision of the Secretary; standard of review; deference to agency findings on regulations)
- Miller v. Heckler, 770 F.2d 845 (9th Cir. 1985) (deference to agency determinations; review of MAC decisions)