The plaintiff then raises several objections to Ms. Talento's
findings. Midpoint contends that the not-for-profit providers should be
eliminated because they can solicit funds from the public to mitigate
losses, while private companies are forced to pass their expenses along
to their consumers. (Wax Aff. at 5). Midpoint also urges that the
geographic scope of any survey be limited to Manhattan because providers
in other boroughs have differing prices. (Wax Aff. at 3-4).
Nevertheless, if only the for-profit agencies in Manhattan are counted,
the average cost for 150 gm of Gammagard in 1998 is $12,188.57, or
$36,565.71 for 450gm, which is still below that paid to Midpoint by
The plaintiff next argues that the paucity of providers included in
Ms. Talento's reports renders them "insignificant statistically."*fn10
(Wax Aff. at 3). The plaintiff relies on Florence Nightingale Nursing, 41
F.3d at 1482, where the court found that Blue Cross' survey of seven
agencies was "totally bereft of statistical significance." Blue Cross'
survey, however, was found to be insignificant because it did not include
agencies that provided services relevant to the disputed charge. Id. The
Eleventh Circuit made clear that the size of the pool of providers
contacted was not the focus of its determination, but rather whether the
providers in the pool rendered similar services to those at issue.
Indeed, the court rested its own decision on information from only two
agencies that provided nursing services comparable to those supplied to
the claimant. Id. at 1482-83.
Midpoint further contends that the defendant failed to gather the
proper information from the surveyed agencies. In particular, the
plaintiff claims that the defendant neglected to request invoices and to
disclose what questions were posed to the providers. (Pl. Memo. at 5).
However, the plaintiff has not produced any specific evidence that would
suggest that invoices from other providers would reflect billing
practices different from those quoted by Ms. Talento, nor has it
demonstrated that the precise questions asked of the providers had any
bearing on Ms. Talento's findings.
Finally, Midpoint complains that the defendant should have inquired
about whether the providers had agreements with Preferred Provider
Organizations ("PPOs"). (Wax Aff. at 6; Pl. Memo. at 5).*fn11 Yet, Ms.
Talento only asked for pricing information charged to insurance companies
that did not have contract or volume discounts. (Talento Decl. at 3). b.
Other Providers The plaintiff further alleges that there were
twenty-eight companies in 1996*fn12 that performed IV treatments but
were not contacted by the defendant or Ms. Talento. (Wax Aff. at 3; Pl.
Memo. at 5). This statement is simply erroneous. Ms.
Talento had included
in her first report fourteen of the twenty-eight agencies that the
plaintiff claims were not contacted. (1st Talento Rep.). Subsequently, the
defendant requested and received information from Ms. Talento about
thirteen of the remaining fourteen providers excluding only Midpoint
itself.*fn13 Her findings for all twenty-eight agencies are as follows:
three IV providers were already included on the list of IV providers in
her first report; two IV providers were added to the list; eighteen
agencies did not provide either the IV treatment or the drugs (i.e. the
agency only provided nursing services and contracted out with a
pharmacy); three agencies no longer had working phone numbers; and one
agency did not return a phone message. (Talento Decl. at 4-5, and
The plaintiff also argues that another healthcare agency — Healix
Healthcare — billed at the same rate for Gammagard did as
Midpoint. (Letter from Abraham Wax dated April 17, 2000 ("Wax Letter"),
included in Admin. Rec.). However, the invoice from Healix submitted by
the plaintiff is immaterial because it lists the cost for a different
drug.*fn15 Furthermore, even if Healix did charge more for Gammagard,
the standard focuses on what the majority of providers bill, not the
maximum amount ever charged. (Plan at 86). c. Plaintiff's Affidavits The
plaintiff has submitted four affidavits from individuals who have worked
for IV treatment companies to support its contention that providers
routinely charge two to three times the AWP for IV therapy drugs.
(Affidavit of Leda Sternberg dated Feb. 18, 2000, included in Admin.
Rec.; Watson Aff.; DeBoer Aff.; Farissier Aff.).*fn16 The affidavits,
however, do not specifically address the billing practices for Gammagard
by other providers of the therapy in 1998. For example, Arthur DeBoer
states that Coram Healthcare, a company included in Ms. Talento's
reports, charges "at least 3 times AWP on a national basis." But, Mr.
DeBoer, who has been employed by Coram Health Care since 1999, adds that
he is "not at liberty to disclose [Coram's] billing practices." (DeBoer
Aff. at 2). These vague allegations do not refute the concrete and
specific evidence compiled by Ms. Talento.
d. Remaining Arguments
Finally, the plaintiff maintains that Midpoint billed other consumers
at the same rate for Gammagard and that another insurance carrier paid
the charges for Gammagard in full. (Wax Letter).
The first argument goes to the issue of whether the charge for
Midpoint's "normal charge." However, the relevant inquiry
in this case involves a determination of the normal charge for most
providers. The second argument is equally unavailing. It is irrelevant
whether another insurance company fully reimbursed Midpoint for
Gammagard; the analysis turns on what providers charge, not what
insurance companies cover. (Plan at 86).
For the reasons set forth above, I find that Midpoint has not
demonstrated that its charges were reasonable and customary; rather CGLIC
adequately compensated the plaintiff for the services rendered in
connection with the treatment of Robert Paulson in 1998. Accordingly, the
Clerk of Court shall enter judgment in favor of CGLIC dismissing the