Taylor B. Theunissen, MD, LLC v. United States Office of Personel Management

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

TAYLOR B. THEUNISSEN, MD, LLC, CIVIL ACTION

Individually and as Assignee and Authorized Representative of

J.C.

Plaintiff,

VERSUS NO. 24-531

UNITED STATES OFFICE OF PERSONNEL

MANAGEMENT

Defendant. SECTION “A” (4)

ORDER AND REASONS

The following motions are before the Court: Defendant’s Motion to Dismiss (Rec. Doc.

6) and Defendant’s Motion to Dismiss State Law and Administrative Procedures Act Claims

(Rec. Doc. 11). Pursuant to Federal Rule of Civil Procedure 12(d), the motions have been

converted to motions for summary judgment.1 The converted motions, submitted for consideration

on November 13, 2024, are before the Court on the briefs without oral argument.

I. Background

i. Factual background

This matter arises out of an alleged underpayment by Government Employees Health

Association, Inc. (“GEHA”) for medical services rendered to Patient J.C. (“J.C.”) by Dr. Taylor

B. Theunissen, MD, LLC (“TBT” or “Plaintiff”).2 At all relevant times, J.C. was a beneficiary of

a health benefit plan (“Plan”) sponsored and administered by GEHA.3 The Plan was available to

1 See Rec. Doc. 18.

2 TBT identified Patient J.C. only by initials due to privacy concerns. See Rec. Doc. 1, at 1 n.1. Dr. Theunissen

is suing OPM in his individual capacity and as assignee and authorized representative of J.C.

3 Id. ¶ 1; see also Rec. Doc. 21, at 2 n.1 (“Pursuant to its contract with OPM, GEHA makes payment to covered

providers and facilities with which it contracts, or in certain cases provides reimbursement directly to the

enrollee, for benefits covered under the terms of the applicable Plan brochure, which is a part of the OPM-carrier

contract.”) (citing 5 U.S.C. §§ 8902(a), 8903(1), 8907(b)); Rec. Doc. 1-1, at 1 (noting the Plan is “Sponsored

and administered by: Government Employees, Health Association, Inc.”). The Plan was attached to Plaintiff’s

J.C., who is an employee of the federal government,4 via a GEHA contract with Defendant, Office

of Personnel Management (“OPM”), as authorized by the Federal Employees Health Benefits Act

(“FEHBA”).5

In 2019, J.C. was diagnosed with breast cancer.6 She underwent bilateral mastectomies

(“mastectomy”) on February 13, 2019.7 Prior to her mastectomy, J.C. assigned her provider the

right to receive payment of benefits from the Plan and, if necessary, take legal action to recover

benefits on her behalf.8 Immediately following her mastectomy, Dr. Theunissen and Dr. Alireza

Sadeghi, working as co-surgeons, performed bilateral breast reconstructions with deep inferior

epigastric perforator flaps (“Reconstructive Procedure”).9

According to TBT, he requested a pre-authorization for the Reconstructive Procedure

before conducting J.C.’s mastectomy.10 But as his complaint makes clear, “[t]he Reconstructive

Procedure is directly covered by the Plan” and “the Plan specifically exempts from the

preauthorization requirement breast reconstruction [if it is] ‘immediate reconstruction for

Complaint and is properly before the Court. Internal citations to the Plan will refer to page listed on the CM/ECF

heading.

4 Rec. Doc. 1, ¶ 6.

5 Rec. Doc. 1-1, at 6.

6 Rec. Doc. 1, ¶ 16.

7 Id. ¶ 28.

8 Id. ¶¶ 14-15; see also Rec. Doc. 19-3 (“Assignment of Benefits/Designated Authorized Representative/Limited

Special Power of Attorney”). The Plan defines “Assignment” as “An authorization by an enrollee or spouse for

the Plan to issue payment of benefits directly to the provider.” Rec. Doc. 1-1, at 115. It is not uncommon for

patients to assign their benefits under the Plan to a provider. See, e.g., Transitional Learning Cmty., Inc. v. OPM,

220 F.3d 427, 429 (5th Cir. 2000).

9 Rec. Doc. 1, ¶ 17; see also Rec. Doc. 1-1, at 58 (listing the Reconstructive Procedure as a covered surgery

under the Plan).

10 Rec. Doc. 1, ¶ 19; see also Rec. Doc. 1-1, at 22.

diagnosis of cancer.’”11 Accordingly, preauthorization (or, as the Plan refers to it,

“precertification”) was unnecessary for the Reconstructive Procedure.12

But precertification was necessary under the Plan for J.C.’s in-hospital stay.13 And, as

evidenced by the February 6, 2019 letter from Conifer Health Solutions, she received the requisite

precertification.14 According to TBT, however, the February 6 letter is the basis for an alleged

“binding contractual agreement” between TBT and OPM for performance of the Reconstructive

Procedure.15

11 Rec. Doc. 1, ¶¶ 23, 25. Rec. Doc. 1-1, at 58 (listing the Reconstructive Procedure under “Benefits

Description”).

12 Plaintiff’s complaint refers to the letter as a “Preauthorization Letter,” but under the Plan, the letter is more

accurately described as a “Precertification Letter.” See Rec. Doc. 1-1, at 21 (“The pre-service claim approval

process for inpatient hospital admissions (called precertification) and for other services, are detailed in this

Section.”). The term “Preauthorization” does not appear in the Plan.

13 See Rec. Doc. 1-1, at 22–24 (Plan provisions regarding precertification).

14 Rec. Doc. 19-1 (Feb. 6, 2019 letter).

15 Rec. Doc. 1, ¶ 27. According to TBT,

Through correspondence dated on or about February 6, 2019

(“Preauthorization Letter”), GEHA, through Conifer Health Solutions,

authorized the Reconstructive Procedure and that both TBT and Dr. Sadeghi

would be providing services, referral number 450701. Through the

Preauthorization Letter, GEHA specifically determined that the

Reconstructive Procedure was medically necessary.

Id. ¶ 21-22 (paragraph numbering omitted).

The Court doubts the merits of this allegation for several reasons. First, as already discussed, precertification for

the Reconstructive Procedure was expressly exempted under the Plan. Id. ¶ 25 (quoting Rec. Doc. 1-1, at 25).

Second, the letter makes no reference to the medical necessity of the Reconstructive Procedure; instead, under

“Approval of Service,” it states: “Service Approved: 3: Inpatient Admission Med or Surg (excluding NICU),

DOA February 13, 2019 and LCD 2/15/19.” Rec. Doc. 19-1; see also Rec. Doc. 20-2, Affidavit of Kathryn

Peterson, OPM Program Manager (Disputed Claims), ¶ 7 (“This document confirmed the patient’s demonstrated

medical necessity for a three-day post surgical inpatient admission beginning February 13, 2019.”). Third, the

letter expressly stated:

This review is a determination of medical necessity for confinement. It is not

a verification of benefits. For benefit verification or an approval for associated

procedures, please contact GEHA.

Rec. Doc. 19-1. And finally, the letter notes that “this [letter] is not a guarantee of payment.” Id.

For these reasons and others, OPM argues that the precertification letter is not evidence of a contract for

performance of the Reconstructive Procedure and, thus, Plaintiff’s breach of contract and detrimental reliance

claims fail. Rec. Doc. 21, at 2; see Hornbeck Offshore Operators, LLC v. Cross Group, Inc., 16-0174 (La. App.

1st Cir. 10/31/16), 207 So.3d 1141, 1146 (“The existence of the contract and its terms must be proven by a

preponderance of the evidence, either direct or circumstantial.”), writ denied, 16-2095 (La. 1/9/17), 214 So.3d

The instant dispute began when TBT submitted a claim for the Reconstructive Procedure

to GEHA under the Plan and the claim was not reimbursed at the “reasonable and customary”

amount the parties allegedly agreed to in the February 6 letter from Conifer Health Solutions.16 In

response to the adverse determination, TBT (acting on behalf of J.C.) submitted first and second

level appeals to OPM via the FEHBA claim review process outlined in the Code of Federal

Regulations, thereby exhausting his administrative remedies.17 OPM ultimately issued a final

ruling denying TBT’s appeal on September 10, 2021, noting “Should [J.C.] wish to pursue this

matter, she must now file suit against [OPM] in Federal court.”18

ii. Procedural background

On March 1, 2024, TBT filed suit on behalf of J.C. and in his individual capacity.19 On

behalf of J.C., TBT sought judicial review of the final agency action and alleged violations of the

872. The Court notes the substantial lack of evidence supporting the existence of a contract, but declines to rule

on the merits of OPM’s argument because, as discussed infra, Plaintiff’s state law claims are preempted by

FEHBA.

The Court also notes that TBT is an experienced litigant who is well aware of the details that are ordinarily

included in precertification letters. See infra n. 19. In Taylor B. Theunissen, MD, LLC v. United Healthcare of

Louisiana, Inc., a case filed only a year before the instant case, TBT asserted similar state law claims for breach

of contract and detrimental reliance. No. 22-2820, 2023 WL 2913529, at *1 (E.D. La. April 12, 2023). Unlike

the case at hand, his state law claims there were based on a precertification letter that described in great detail

the procedure he was authorized to perform. See id. (“The March 5, 2018 pre-authorization request submitted to

UHC explicitly stated two surgeons, Dr. Sadeghi and Dr. Theunissen, would be performing the first

reconstruction procedure.”) (citing No. 22-2820, Rec. Doc. 20-5)).

16 Id. ¶¶ 27–32. It’s TBT’s position that the “reasonable and customary” amount it should have been reimbursed

under the Plan totals $129,969.98. Id. ¶¶ 27, 37.

17 Id. ¶¶ 41, 47; see also Rec. Doc. 9, at 4; Rec. Doc. 9-2, at 2; 5 C.F.R. § 890.105(e) (“OPM review”); 5 C.F.R.

890.107(d)(1) (“An action under paragraph (c) . . . [m]ay not be brought prior to exhaustion of the administrative

remedies provided in § 890.105.”).

18 Rec. Doc. 9-2, at 2.

19 See generally Rec. Doc. 1. This is not the first time Dr. Theunissen has raised claims for underpayment of

benefits for breast reconstruction surgery. It’s likewise not his first attempt to do so while asserting nearly

identical state law claims. He has filed at least four other lawsuits alleging similar claims against insurers, but

none, like here, against OPM. And the other lawsuits are based on ERISA plans, not, like here, on a FEHBA

plan. See Taylor Theunissen, M.D. LLC v. United HealthCare Grp., Inc., 365 F. Supp. 3d 242, 247–48 (D. Conn.

2019) (dismissing claims based on anti-assignment clause in ERISA plan and finding that that no basis for state

law promissory estoppel claim existed because the pre-authorization letters did not contain a clear and definite

promise to pay benefits); Sadeghi v. Aetna Life Ins. Co., 564 F. Supp. 3d 429, 470–72 (M.D. La. 2021) (granting

Administrative Procedure Act (“APA”). In his individual capacity, TBT asserted state law causes

of action against OPM for breach of contract and detrimental reliance.20 In turn, OPM filed two

motions to dismiss.21

OPM’s first motion attacked the timeliness of Plaintiff’s claim for judicial review, arguing

the claim prescribed on January 1, 2023—over a year before this lawsuit was filed.22 In response,

Plaintiff argued the three-year prescription period does not commence until all administrative

remedies are exhausted.23 Relying on OPM’s September 10, 2021 letter giving notice that a final

administrative review had been rendered, Plaintiff posited that the prescription period runs until

December 31, 2024, making the judicial review claim timely.24

Defendant’s second motion argued (1) TBT’s state law claims for breach of contract and

detrimental reliance are preempted by FEHBA; and (2) because FEHBA provides an adequate

remedy for judicial review, Plaintiff’s claims under the APA are precluded.25 Plaintiff

partial summary judgment and holding that letters granting an in-network exception to providers did not

constitute a separate contract or agreement between the insurer and provider), id. at 455–56 (agreeing with the

defendant’s contention that the lawsuit was “simply a continuance of the ERISA appeal procedures,” and noting

that TBT’s claims were “disingenuous at best”); Tamburrino v. United Healthcare Ins. Co., No. 21-12766, Rec.

Doc. 35, at 4–8 (D.N.J. April 25, 2022) (dismissing TBT’s claims due to anti-assignment provision in a patient’s

health plan); Taylor B. Theunissen, MD, LLC, 2023 WL 2913529, at *10 (dismissing state law claims for breach

of contract and detrimental reliance as preempted by ERISA).

20 Id. ¶¶ 72–73.

21 See Rec. Doc. 6; Rec. Doc. 11.

22 Rec. Doc. 6-1, at 4 (noting that both the Code of Federal Regulations and the Plan state that a cause of action

for judicial review must be brought no later than “December 31 of the third year after the year in which [the

patient] received the disputed services,” which, in this case, were administered on February 13, 2019) (quoting

5 C.F.R. § 890.107(d)(2) and Rec. Doc. 1-1, at 105).

23 Rec. Doc. 9, at 7 (quoting Gonzalez v. Blue Cross Blue Shield Assoc., 62 F.4th 891, 896 (5th Cir. 2023)

(quoting 5 C.F.R. §§ 890.105(a)(1), 890.107(d)(1))).

24 Rec. Doc. 9-2, at 2; Rec. Doc. 9, at 8.

25 See generally Rec. Doc. 11-1.

subsequently withdrew its claims under the APA, leaving only the preemption issue to be decided

by the Court.26

The Court reviewed the motions and exercised its discretion to convert the motions to

motions for summary judgment for two reasons.27 First, the complaint and responses in opposition

to the motions relied on certain extraneous documents that were not attached to the complaint or

the motions but were central to Plaintiff’s argument.28 This triggered the Court’s obligation under

Rule 12(d) to convert the motions if it opted to consider them. See Boateng v. BP, P.L.C., 779 F.

App’x 217, 219 (5th Cir. 2019) (“A district court converts a Rule 12(b)(6) motion to dismiss into

a motion for summary judgment when matters outside of the pleadings are presented to and not

excluded by the court. Such matters include evidence introduced in opposition to a 12(b)(6) motion

that provides some substantiation for and does not merely reiterate what is said in the pleadings.”)

(internal citations and quotations omitted)). Second, only two issues remained before the Court:

(i) whether Plaintiff’s claim for judicial review should be dismissed as untimely; and (ii) whether

Plaintiff’s state law claims are preempted by FEHBA.29

In exercising its discretion to convert the motions, the Court granted the parties twenty-six

days to file supplemental briefing and submit any additional evidence in support of their positions,

and an additional seven days to reply to the opposing party’s supplemental brief.30 See Hodge v.

26 See Rec. Doc. 14, at 2 n.2.

27 See Rec. Doc. 18, at 5–6.

28 These documents principally include the Preauthorization Letter, which is the basis for Plaintiff’s breach of

contract and detrimental reliance claims, and the September 10, 2021 correspondence between OPM and

Plaintiff’s counsel, which establishes the date of the final administrative review of the TBT Claim. See Rec. Doc.

1, ¶¶ 22, 27, 30, 34, 41–42, 65–68, 75; Rec. Doc. 9, at 2–4; Rec. Doc. 14, at 2–4; Rec. Doc. 9-2, at 2. Other

examples include: the Assignment and Designation document (Rec. Doc. 1, ¶¶ 14-15); the TBT claim (Id. ¶ 29;

Rec. Doc. 9, at 3–4; Rec. Doc. 14, at 2–5); and various referenced correspondences between GEHA and/or OPM

and counsel for TBT (see, e.g., Rec. Doc. 1, ¶¶ 30–32, 35–36, 39, 41–42, 45, 75; Rec. Doc. 9, at 3–4; Rec. Doc.

14, at 2–4).

29 Rec. Doc. 18.

30 Id. at 6.

Engleman, 90 F.4th 840, 844 (5th Cir. 2024) (“Parties must have at least ten days' notice before

the court's ruling that ‘the court could convert the Rule 12(b)(6) motion into a summary

judgment.’”) (quoting Holguin v. U.S. Dep't of Army, 98 F.3d 1337, 1996 WL 556767, at *2 (5th

Cir. 1996) (per curiam) (table) (unpublished) (“The only requirement is that the non-moving party

have at least ten days in which to submit its own evidence.”)). Each party filed supplemental

memoranda and the following evidence was submitted to the Court: (i) the Preauthorization Letter;

(ii) correspondence between GEHA and J.C.; (iii) the Assignment and Designation document

executed by J.C.; and (iv) the declaration of Kathryn Peterson, OPM Program Manager (Disputed

Claims).31

For the following reasons, Defendant’s converted motions for summary judgment are

GRANTED and Plaintiff’s claims are DISMISSED WITH PREJUDICE.

II. Legal Standard

Summary judgment is proper where there is “no genuine dispute of material fact” and “the

movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). That is, it is appropriate

where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with

the affidavits, if any,” when viewed in the light most favorable to the non-movant, “show that there

is no genuine issue as to any material fact.” TIG Ins. Co. v. Sedgwick James, 276 F.3d 754, 759

(5th Cir. 2002) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50 (1986)). A dispute

about a material fact is “genuine” if the evidence is such that a reasonable jury could return a

verdict for the non-moving party. Id. (citing Anderson, 477 U.S. at 248). The court must draw all

justifiable inferences in favor of the non-moving party. Id. (citing Anderson, 477 U.S. at 255).

Once the moving party has initially shown “that there is an absence of evidence to support the non-

31 See Rec. Doc. 19-1, Rec. Doc. 19-2, Rec. Doc. 19-3, Rec. Doc. 20-2.

moving party’s cause,” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), the non-movant must

come forward with “specific facts” showing a genuine factual issue for trial. Id. (citing FED. R.

CIV. P. 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986)).

III. The Federal Employees Health Benefits Act

Congress enacted FEHBA to create “a comprehensive program of health insurance for

federal employees.” Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677, 682 (2006);

see also 5 U.S.C. §§ 8901–14. FEHBA authorizes OPM to promulgate regulations and contract

with insurance “carriers” for the purpose of “negotiating and regulating health-benefits plans for

federal employees.” Empire, 547 U.S. at 682, 684; 5 U.S.C. §§ 8901(7), 8902–03, 8913. OPM

then carries out that duty by entering contracts with private insurers, like GEHA, who act as

carriers and provide health benefits to federal employees. Gonzalez v. Blue Cross Blue Shield

Ass’n, 62 F.4th 891, 895 (5th Cir. 2023) (quoting St. Charles Surgical Hosp., LLC v. La. Health

Serv. & Indem. Co., 935 F.3d 352, 356 (5th Cir. 2019) (citations omitted)).

Notably, carriers “never take[] on the risks of an insurer in [their] relationship with

OPM”—in other words, they operate more like a claims processor than an insurer. Id. at 896. So

it is OPM, not GEHA, who has the final say on the health benefits that an employee may receive

under the Plan. Id. Accordingly, if a dispute arises between an employee and GEHA under the

plan, OPM ultimately resolves the issue. Id. In Gonzalez v. Blue Cross Blue Shield Association,

the Fifth Circuit concisely summarized the dispute resolution protocol as follows:

The patient begins the process by submitting a claim to [the carrier].

If [the carrier] denies the claim, the patient can ask [the carrier] to

reconsider. If [the carrier] affirms the denial, then the patient can ask

for OPM's review. If OPM also denies the claim, then the patient

can then seek judicial review of OPM's denial.

OPM's regulations require a patient to exhaust both the carrier and

OPM review processes before seeking judicial review. The

regulations also say that a patient who wishes to challenge a denial

may sue only OPM, not [the carrier]. The recovery in such a suit

shall be limited to a court order directing OPM to require the carrier

to pay the amount of benefits in dispute. The Plan documents

describe all of these procedures.

62 F.4th at 896 (cleaned up).

When, as here, a patient has assigned her right to collect benefits under the Plan to her

provider, the provider may then stand in the shoes of its patient and bring suit against OPM. See

id. at 899 (“As relevant here, the district courts of the United States have original jurisdiction of a

civil action or claim against the United States founded on 5 U.S.C. §§ 8901–14, that is, FEHBA.

The government has thus consented to suits to vindicate rights or enforce obligations created by

FEHBA.”) (cleaned up); see also RAI Care Ctrs., LLC v. OPM, 459 F. Supp. 3d 124, 132 (D.D.C.

2020) (noting “[A]lthough no case from this Circuit has addressed whether an assignee may sue

under FEHBA and 8 C.F.R. § 8901.107 . . . . Without specifically addressing the issue, the Tenth

and Fifth Circuits have permitted suits along these lines to proceed” and collecting cases in support

of the proposition).

IV. Discussion

Two issues are directly before the Court on summary judgment: (i) whether Plaintiff’s

claim for judicial review should be dismissed as untimely; and (ii) whether Plaintiff’s state law

claims for breach of contract and detrimental reliance are preempted by FEHBA.

i. Plaintiff’s judicial review claim is untimely.

Under 5 C.F.R. § 890.107(c)–(d), a covered individual may seek judicial review of OPM’s

final action on the denial of a health benefits claim subject to three limitations: first, the claim may

not be brought prior to the exhaustion of the administrative remedies outlined in Section 890.105

of Code of Federal Regulations; second, and most relevant here, the claim may be brought no later

than December 31 of the third year after the year in which the care or service was provided; and

third, the claim will be limited to the record that was before OPM when it rendered its decision

affirming the carrier’s denial of benefits. Here, only the second limitation is at issue, and it is

undisputed that the “care or service” was provided to J.C. in February 2019. See FED. R. CIV. P.

56(a). As such, the Court must determine whether OPM is entitled to judgment as a matter of law.

Id.

OPM argues that a plain reading of the regulation unambiguously establishes that

Plaintiff’s claims are time-barred because the care was provided to J.C. in February 2019.32

Accordingly, its position is that the deadline to file this lawsuit was December 31, 2022.33

In opposition, Plaintiff argues that the three-year prescription period starts on the date of

the final agency decision, which was rendered September 10, 2021.34 Under this analysis, the

deadline to file this lawsuit is December 31, 2024.35 Plaintiff further argues that OPM’s reading

of the regulation results in the limitations period commencing before patients are even permitted

to file their lawsuit because the clock begins to run before administrative remedies are exhausted.36

Having considered both parties’ positions,37 the Court returns to the relevant question

before it, which is properly framed as follows: Where a patient has exhausted the administrative

32 Rec. Doc. 21, at 5–6.

33 Rec. Doc. 6-1, at 4.

34 Rec. Doc. 19, at 6; Rec. Doc. 9-2.

35 Rec. Doc. 9, at 8.

36 Rec. Doc. 19, at 7 (contending that “OPM’s own regulations are potentially inconsistent” because 5 C.F.R.

890.107 requires that a lawsuit be filed within three years of the care or service, but 5 C.F.R. 890.105 requires

the claimant to exhaust all administrative remedies before filing suit).

37 In support of its position, Plaintiff misguidedly relies on Hallman v. OPM, 5:19-516, 2021 WL 4458642 (N.D.

N.Y. Sept. 29, 2021). In Hallman, the Court declined to find the judicial review claim time-barred because there

was “conflicting evidence as to when Plaintiff received the letter and learned about OPM's final decision to deny

his claim (thereby exhausting his administrative remedies).” 2021 WL 4458642, at *3. Unlike the instant case—

where it is undisputed that Plaintiff received the OPM final decision more than a year before the limitations

remedies listed in § 890.105, when does the statute of limitations for judicial review under 5 C.F.R.

§ 890.107(d)(2) begin to run? Notably, this question has been addressed by few district courts,38

but the text of the regulation provides a clear answer39—“A legal action to review final action by

OPM involving denial of health benefits . . . . May not be brought later than December 31 of the

3rd year after the year in which the care or service was provided.” 5 C.F.R. 890.107(c)–(d).

Accordingly, Plaintiff’s claim for judicial review became untimely on January 1, 2023, over a year

before this lawsuit was filed. See Pellicano v. OPM, No. 3:17-698, 2018 WL 771362, at *6 (M.D.

Pa. Jan. 19, 2018) (recommending dismissal of two claims as untimely based on the limitations

period starting when the care or service was provided where the claims were filed more than a year

after the limitations period ended), report and recommendation adopted, No. 3:17-698, 2018 WL

798172 (M.D. Pa. Feb. 9, 2018).

period ended (see Rec. Doc. 9-2)—the Hallman plaintiff claimed that he did not receive a final decision from

OPM until three months after the limitations period passed. Id. Accordingly, the Hallman Plaintiff established

the existence of a genuine dispute of material fact, thus precluding summary judgment.

Plaintiff also misguidedly relies on Horvath v. Dodaro, 160 F. Supp. 3d 32 (D.D.C. 2015) to support his

proposition that “The date of that final agency decision is the relevant date for the purpose of applying the statute

of limitations because Plaintiff could have brought an action under [FEHBA] at that time.” Rec. Doc. 19, at 6.

But a close reading of Horvath shows that the case concerned a discrimination claim, not a claim for judicial

review. Horvath, 160 F. Supp. 3d, at 40 (“Plaintiff did not seek judicial review of the decision denying him

benefits. However, in light of the denial of benefits by the GAO, Plaintiff proceeded to pursue a discrimination

complaint, through both the GAO's Office of Opportunity and Inclusiveness and the GAO's Personnel Appeals

Board (“PAB”).”) (internal citations omitted)). And an even closer reading of the case shows that Plaintiff’s

proposition has been taken out of context. The Horvath court was considering whether the limitations period had

passed in the context of 28 U.S.C. § 2401(a) (“Time for commencing action against United States”), not 5 C.F.R.

§ 890.107(d)(2) (FEHBA “Court review”). Horvath, 160 F. Supp. 3d, at 43–44. As such, Plaintiff’s argument

carries no weight under these facts.

38 See, e.g., Hallman v. OPM, No. 5:19-516, 2020 WL 3035567, at *2 (N.D. N.Y. June 5, 2020) (“Scant caselaw

exists analyzing the relevant regulations. The parties–understandably–fail to cite authority central to their

contentions [regarding the issue of timeliness].”).

39 “The always primary, and here decisive, interpretive tool is the text itself.” Latiolais v. Huntington Ingalls,

Inc., 951 F.3d 286, 292 (5th Cir. 2020). Whether the rule is ambiguous is not directly at issue in this case, but

the Court notes that, “if the law gives an answer—if there is only one reasonable construction of a regulation—

then a court has no business deferring to any other reading.” Kisor v. Wilkie, 588 U.S. 558, 575 (2019). Here,

there is only one reasonable construction of the regulation.

ii. Plaintiff’s state law claims are preempted by FEHBA.

The Court dismisses TBT’s state law claims for breach of contract and detrimental reliance

because federal law expressly preempts them.

FEHBA contains a preemption clause:

The terms of any contract under this chapter which relate to the

nature, provision, or extent of coverage or benefits (including

payments with respect to benefits) shall supersede and preempt any

State or local law, or any regulation issued thereunder, which relates

to health insurance or plans.

5 U.S.C. § 8902(m)(1). The Supreme Court has recognized the expansiveness of FEHBA's

preemption clause, noting that “state law—whether consistent or inconsistent with federal plan

provisions—is displaced on matters of ‘coverage or benefits.’” Empire, 547 U.S. at 686 (quoting

5 U.S.C. § 8902(m)(1)); see also Coventry Health Care of Mo., Inc. v. Nevils, 581 U.S. 87, 96

(2017); Gonzalez, 62 F.4th at 903.

FEHBA preempts state law when “(1) the FEHBA contract terms at issue relate to the

nature, provision, or extent of coverage or benefits, and (2) the state law relates to health insurance

or plans.” Gonzalez, 62 F.4th at 903 (quoting Health Care Serv. Corp. v. Methodist Hosps. Dall.,

814 F.3d 242, 253 (5th Cir. 2016)). Both elements are met here.

First, the complaint expressly states, “[t]he Reconstructive Procedure is directly covered

by the Plan,” and both of Plaintiff’s state law claims seek damages based on a claim for benefits

related to the Reconstructive Procedure.40 See Gonzalez, 62 F.4th at 901 (“OPM's regulations

define ‘claim’ as ‘a request for (i) payment of a health-related bill[ ] . . . .’” (quoting 5 C.F.R. §

890.101)). For example, Plaintiff’s breach of contract claim states that, “Through the

40 Rec. Doc. 1, ¶ 23; see also Rec. Doc. 1-1, at 58 (listing and describing the Reconstructive Procedure under

“Benefits”); Rec. Doc. 1, ¶¶ 64-80; Rec. Doc. 19-1; Rec. Doc. 20-2, ¶ 7.

Preauthorization Letter, GEHA specifically determined that the Reconstructive Procedure was

medically necessary.”41 As a result of this alleged determination, Plaintiff asserts that “a meeting

of the minds was reached between TBT and GEHA where the Plan agreed that TBT would perform

the Reconstructive Procedure for J.C. and the Plan would pay to TBT the reasonable and customary

fee for such procedure.”42 Plaintiff’s detrimental reliance claim likewise asserts that “TBT changed

is position to its detriment based on said representations by, inter alia, undertaking the

Reconstructive Procedure for J.C.”43 Accordingly, the first prong is satisfied because each claim

necessarily “places ‘at issue’ Plan terms that ‘relate to the nature, provision, or extent of coverage

or benefits (including payments with respect to benefits).’”44 Id. (quoting 5 U.S.C. § 8902(m)(1)).

The second prong is also satisfied. In bringing his breach of contract and detrimental

reliance claims, TBT invokes Louisiana common law. These causes of action do not specifically

relate to health insurance, “but preemption reaches even a state’s general laws when their

application relates to the scope or administration of federal healthcare plans.” Id. at 904. As the

Fifth Circuit noted in Gonzalez,

41 Rec. Doc. 19, at 3.

42 Rec. Doc. 1, ¶ 68.

43 Id. ¶ 77.

44 OPM disagrees that the letter determined the Reconstructive Procedure to be medically necessary, arguing

instead that the letter (characterized by OPM as a “Precertification Letter”) “confirmed the patient’s

demonstrated medical necessity for a three-day post-surgical inpatient admission” and “satisfie[d] the

Precertification requirement for an inpatient hospital admission as stated on page 20 of the 2019 GEHA Plan

brochure.” Rec. Doc. 20-2, at 2.

The Court notes that, here, either party’s position suffices the first prong of the analysis in Gonzalez because

both positions place at issue Plan terms that relate to the nature provision, or extent of coverage or benefits. 62

F.4th at 903.

The key phrase, obviously, is “relates to.” The ordinary meaning of

these words is a broad one. The phrase means “to stand in some

relation; to have bearing or concern; to pertain; refer; to bring into

association with or connection with.” It is thus no surprise that the

phrase expresses a broad pre-emptive purpose. A state law may

“relate to” a benefit plan, and thereby be pre-empted, even if the law

is not specifically designed to affect such plans, or the effect is only

indirect.

62 F.4th at 904 (cleaned up).

TBT’s common-law claims seek to hold OPM liable for allegedly breaching a contract by

failing to pay what he believed to be “reasonable and customary” rates after TBT performed a

procedure covered under the Plan.** But as just discussed, and as TBT admits in the complaint,"

a contract or representation related to what TBT believes to be the reasonable and customary

amount owed for the covered Reconstructive Procedure indisputably “relates to” the scope or

administration of the Plan, and TBT’s claims thus “meet the criteria for preemption.” /d. at 904—

05 (quoting 5 U.S.C. § 8902(m)(1) and Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 48 (1989)).

Accordingly;

IT IS ORDERED that Defendant’s Motion to Dismiss (Rec. Doc. 6) and Defendant’s

Motion to Dismiss State Law and Administrative Procedures Act Claims (Rec. Doc. 11),

subsequently converted to motions for summary judgment (Rec. Doc. 18), are GRANTED and

Plaintiff's clams are DISMISSED WITH PREJUDICE.

November 26, 2024

Cc

Ge SA

JA EY

WITH STA DISTRICT JUDGE

Rec. Doc. 1, § 23.

46 Td.

14