STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF WATAUGE 08 INS 2251

______

GARY L. CHILDERS )

Petitioner, )

)

vs. )

)

NORTH CAROLINA TEACHERS’ ) DECISION

AND STATE EMPLOYEES’ )

COMPREHENSIVE MAJOR )

MEDICAL PLAN, )

)

Respondent. )

______

On June 8, 2009, the undersigned presided over an administrative hearing in this case in Charlotte, North Carolina. At the conclusion of the hearing, the undersigned ruled that Petitioner did not meet his burden of proof and upheld Respondent’s denial to process Petitioner’s claim for payment of a neuromonics noise device. Respondent filed a proposed decision with the Office of Administrative Hearings and the official record in this case is now closed.

APPEARANCES

For the Petitioner: Gary Childers

173 Leah Drive

Boone, NC 28607

For the Respondent: Lotta Crabtree

Assistant Attorney General

N.C. Department of Justice

PO Box 629

Raleigh, NC 27602-0629

ISSUE

Whether Respondent acted erroneously and denied Petitioner of property by denying coverage for a neuromonics noise device?


APPLICABLE LAW AND CONTRACT

N.C. Gen. Stat. 135-39.5, et seq; N.C. Gen. Stat. 150B-1, et seq.; and The North Carolina Teachers’ and State Employees’ Comprehensive Major Medical Plan Summary Plan Description 2004 (benefit booklet).

EXHIBITS ADMITTED INTO EVIDENCE

For the Petitioner: Exhibits 1, 2, and 3

For the Respondent: Exhibits A, B, C, D, E, F, G and H

WITNESSES

For the Petitioner: Gary Childers

For the Respondent: Michelle Overby (BCBSNC)

FINDINGS OF FACT

1.  Respondent is an agency of the State of North Carolina that offers health care benefits to eligible active and retired employees and their enrolled dependents in accordance with the applicable North Carolina General Statutes.

2.  At all times relevant to this matter, Petitioner was a member of the North Carolina Teachers’ and State Employees’ Comprehensive Major Medical Plan administered by Respondent.

3.  At all times relevant to this matter, Blue Cross Blue Shield of North Carolina (BCBSNC) was the claims processor (CPC) for Respondent.

4.  Michelle Overby is an appeals analyst employed by BCBSNC. Her position is dedicated to reviewing State Health Plan claims and she is responsible for reviewing claims submitted to the Office of Administrative Hearings for review.

5.  On May 22, 2008, Respondent’s CPC received a claim for Petitioner from Dr. Roger Ruth for CPT code V5299 described as: hearing service, neuromonics noise generator. The date of service for the claim was May 23, 2007. (Resp. exhibit B.)

6.  The CPC denied the claim as a non-covered service and an explanation of benefits was sent to Petitioner dated June 27, 2008. (Resp. Exhibit C.)

7.  Petitioner then appealed that decision. (Resp. Exhibit D, Pet. Exhibit 2.)

8.  The appeal was denied and a notice of denial dated August 25, 2008 was mailed to Petitioner. The letter did not clearly set forth the basis for denial but indicated that the neuromonics noise device was excluded from coverage. (Resp. Exhibit. F.)

9.  The neuromonics noise device is considered to be durable medical equipment. (Testimony of Michelle Overby.)

10.  Pursuant to the benefit booklet Durable Medical Equipment costing more than $1000 requires prior plan approval. Approval must be obtained before services are rendered. Retrospective review can be requested within six months (180 days) of service. If approval is not obtained in accordance with the benefit booklet then the member becomes responsible for the cost. (Resp. Exhibit A, pp. 41-2.)

11.  Petitioner did not request prior approval for the neuromonics noise device which is durable medical equipment with a cost of $4500. The claim for the device was not submitted until one year after the date of service.

12.  Benefit exclusion is a medical service that is clearly set forth as non-covered in the benefit booklet. Denial of a claim as a benefit exclusion does not afford the claimant any appeal rights. (Testimony of Michelle Overby, Resp. Exhibit A.)

13.  Respondent’s denial of Petitioner’s claim as a benefit exclusion was proper as the booklet clearly required prior approval for durable medical equipment costing more than $1000.

14.  Had Petitioner sought prior approval in a timely fashion and his claim was denied, then he would have been entitled to a second level appeal to determine medical necessity.

CONCLUSIONS OF LAW

1.  All parties are properly before the Court and the Court has jurisdiction to hear this matter.

2.  Petitioner has the burden of proof in this matter by the greater weight of the evidence regarding the issues presented in this contested case. N.C. Gen. Stat. 150B-34(a)

.

3.  The terms of Petitioner’s coverage are set forth in the benefit booklet.

4.  Petitioner has not met his burden of proof in that he has not shown that Respondent erroneously denied coverage for the neuromonics noise device where it was durable medical equipment costing more than $1000 requiring prior Plan approval and prior Plan approval was not requested.

DECISION

Based on the foregoing Findings of Fact and Conclusions of Law, the decision of the Respondent to deny Petitioner’s request for payment of a neuromonics noise device is AFFIRMED.

NOTICE AND ORDER

The agency that will make the final decision in this contested case is the Board of Trustees of the North Carolina State Health Plan (hereinafter “Agency”). The Agency is required to give each party an opportunity to file exceptions to and written arguments concerning this Recommended Decision. The Agency is further required to serve a copy of the Final Agency Decision on all Parties or their attorneys of record and on the Office of Administrative Hearings.

In accordance with N.C. Gen. Stat. § 150B-36 the Agency shall adopt each finding of fact contained in the Administrative Law Judge’s decision unless the finding is clearly contrary to the preponderance of the admissible evidence. For each finding of fact not adopted by the agency, the agency shall set forth separately and in detail the reasons for not adopting the finding of fact and the evidence in the record relied upon by the agency in not adopting the finding of fact. For each new finding of fact made by the agency that is not contained in the Administrative law Judge’s decision, the agency shall set forth separately and in detail the evidence in the record relied upon by the agency in making the finding of fact. The party aggrieved by the agency’s decision shall be entitled to immediate judicial review of the decision under Article 4 of this Chapter.

This 18th day of June, 2009.

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Selina M. Brooks

Administrative Law Judge