This is a contract claim by a government employee, Carolyn Arrington, who has been denied insurance benefits for a particular cancer treatment that she claims is covered under the Blue Cross/Blue Shield 1992 Government-wide Service Benefit Plan of the Federal Employee Health Benefits ("FEHB") programs. See 5 U.S.C. § 8903. The action comes before the Court on cross-motions for summary judgment which have been filed, briefed, and argued on an expedited schedule in view of the plaintiff's serious imminent health hazard.
There are no material facts in dispute. The Court has jurisdiction under 28 U.S.C. § 1331.
I. Factual Background
Plaintiff is under the care of an oncologist, recovering from a mastectomy. Since the cancer appears to have moved to the chest and lung area and continues to progress, her physician has strongly recommended high-dose chemotherapy with autologous bone marrow transplant ("HDC-ABMT"). This procedure would cost $ 150,000. If it were covered under her insurance plan, plaintiff would pay only $ 30,000 of this total.
Plaintiff's oncologist sought advance approval of coverage from defendant, as required under the plan, who denied coverage. That determination was immediately reviewed by the Office of Personnel Management ("OPM"), which considered plaintiff's request for approval of coverage under the authority of 5 C.F.R. § 890.104. OPM also denied coverage. After unsuccessfully making a further request for reconsideration, the administrative procedures were exhausted by October 27, 1992, and the complaint was filed.
The proposed course of treatment, bone marrow transplant accompanied by intense chemotherapy, is accepted by cancer research specialists and often appears to be successful. Known as HDC/ABMT, it involves withdrawing the patient's bone marrow and treating it while administering high-dosage chemotherapy. The removed bone marrow, which would otherwise have been destroyed, is then restored, thus reinstating the patient's immune and blood-forming systems to offset the chemotherapy's effect, which would otherwise be fatal.
II. The Contract
While there is no dispute as to the patient's need to attempt this treatment, in spite of its risks or the qualifications of the attending oncologist, the benefit plan contains a prominent denial of coverage. The following pertinent language appears at page 16 of the 1992 Plan:
Organ Transplants/ Donor Expenses
What is Covered The following human organ transplant procedures: . . .
* Autologous bone marrow (autologous stem cell support)
and autologous peripheral stem cell support, for (1)
Acute lymphocytic or non-lymphocytic leukemia, (2)
Advanced Hodgkin's lymphoma, (3) Advanced Non-Hodgkin's
lymphoma, (4) Advanced neuroblastoma, and (5)
Testicular, Mediastinal, Retroperitoneal and Ovarian
germ cell tumors. . . .
Limitations * Prior approval of the procedure and the facility is
required for bone marrow, heart, heart-lung, liver,
lung, and pancreas transplants. . . .
What is Not * Services or supplies for or related to surgical
Covered transplant procedures for artificial or human organ
transplants not listed as specifically covered.
Related services or supplies include administration
of high dose chemotherapy when supported by transplant
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