The opinion of the court was delivered by: John Gleeson, United States District Judge
Robert Noia suffers from primary pulmonary hypertension, a grave illness requiring expensive medical treatment. Fortunately, Noia is entitled to certain medical benefits from three welfare-benefit plans: (1) the Consolidated Edison Retiree Health Program ("the Con Ed Program"), a plan for certain retired employees of Consolidated Edison Company of New York, Inc. ("Con Ed"); (2) the Division 1181 A.T.U. -- New York Welfare Fund ("the Division 1181 Fund"), a plan for, among others, employees of participants in collective-bargaining agreements with the Division 1181 A.T.U., AFL-CIO; and (3) Medicare Part A and Part B. Unfortunately, the Con Ed Program and the Division 1181 Fund dispute which plan must provide primary coverage of Noia's claims. So while everybody agrees Noia is entitled to a certain amount of help paying his medical bills, he has obtained only a small fraction of that amount.
Noia and his wife, Evelyn Noia,*fn1 bring this action against the Con Ed Program and the Division 1181 Fund*fn2 pursuant to the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq. They ask principally for (a) benefits from the Division 1181 Fund pursuant to ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B), and (b) a declaration that one or the other defendant provides primary coverage of Noia's claims.*fn3 On October 26, 2006, with the consent of both defendants, I issued an order granting the plaintiffs' motion for a preliminary injunction, requiring the defendants to share primary coverage until the ultimate disposition of this case. See Docket Entry 41 ("On consent of the parties, [the Con Ed Program] will continue to provide coverage of plaintiff's Medicare Part D prescription drug expenses.
[The Division 1181 Fund] will provide plaintiff's other health benefits coverage, acting as primary carrier to that extent pending the outcome of this case.").
Before me now are three cross-motions for partial summary judgment -- from the plaintiffs, the Con Ed Program, and the Division 1181 Fund -- on the question which plan is primary. I heard oral argument on the motions on March 23, 2007. For the reasons set forth below, I conclude that the Division 1181 Fund must provide primary coverage of Noia's claims through June 23, 2006, but I cannot yet determine which plan must provide primary coverage after June 23, 2006.*fn4
Unless otherwise noted, the facts set forth below are not in dispute.
A. Noia's Medical Condition and Treatment
Noia suffers from primary pulmonary hypertension, also known as "IPAH," a disease that causes, among other symptoms, shortness of breath; fatigue; dizziness; fainting spells; swelling of the ankles, abdomen or legs; bluish lips and skin; and chest pain. Palevksy Decl. ¶ 3, July 26, 2006. Untreated IPAH results in an average life expectancy of 2.8 years from the first diagnosis; untreated advanced IPAH usually causes death in about six months. Id.
To treat his IPAH, Noia receives a drug named Flolan through an implanted in-dwelling catheter. Id. ¶ 5. Noia suffers vasculitis as an allergic side effect to Flolan, however, so to treat that condition he also receives methotrexate and prednisone, which, being immunosuppresants, make Noia vulnerable to catheter infections. Id. Noia also takes a daily oral medication named Tracleer to supplement and permit lower doses of Flolan. Id. ¶ 6. Flolan and Tracleer are Noia's principal medications. Id. ¶ 4. In addition to those and the methotrexate and prednisone, he also takes daily doses of Coumadin, spironolactone, Digitek, and folic acid, and when needed takes albuterol, Biaxin, and Benzonatate. Noia Decl. ¶ 9, Jan. 25, 2007.
Noia's doctor has recommended that he change to a different combination of drugs to mitigate the "risk of serious complications and infections," "discomfort," and the "likelihood or severity of [the] vasculitis" presented by Flolan. Palevksy Decl. ¶ 8, July 26, 2006. Specifically, the doctor has recommended Ventavis, which "has been proven in clinical studies to be effective and, indeed, to be synergistic with Tracleer." Id.
Noia regularly undergoes medical tests, requiring monthly blood tests and biannual echocardiograms. Noia Decl. ¶ 9, Jan. 25, 2007. Noia also visits an array of specialists, including quarterly visits to a pulmonologist and a rheumatologist. See id. ¶ 8.
B. Noia's Eligibility for Medicare Coverage After the Social Security
Administration determined that Noia's condition made him disabled, Noia became eligible for Medicare on September 1, 2002. Id. ¶ 6; see also Defendant Consolidated Edison Retiree Health Program's Statement of Undisputed Material Facts Pursuant to Local Civil Rule 56.1 ("Con Ed's Rule 56.1 Statement") ¶¶ 3-4; Defendant Division 1181's Statement of Disputed and Undisputed Facts Submitted in Compliance with Local Civil Rule 56.1 ("Division 1181's Rule 56.1 Response") 3. Noia enrolled in Medicare Part A, and then in the spring of 2003 purchased Medicare Part B coverage.*fn5 Noia Decl. ¶ 6, Jan. 25, 2007. Noia has not purchased a Medicare Part D prescription medication plan.*fn6 Id.
C. Noia's Eligibility for Benefits from the Con Ed Program
Noia worked for Con Ed for 28 years. Id. ¶ 2.
In March 2000, having become disabled with IPAH, he retired and enrolled in the Con Ed Program. Id. ¶¶ 2, 5; see also Defendant Consolidated Edison Retiree Health Program's Response to Plaintiffs' Statement of Undisputed Material Facts Pursuant to Local Civil Rule 56.1 ("Con Ed's Rule 56.1 Response to Plaintiffs") ¶ 3. The Con Ed Program is a self-insured single-employer welfare-benefit plan for certain retired Con Ed employees and their dependents, and is governed by ERISA. See The Consolidated Edison Retiree Health Program Summary Plan Description ("Con Ed SPD") 1, 103. Noia is covered by two components of the Con Ed Program: a hospitalization and medical-benefits plan administered by United HealthCare Service, LLC, and a prescription drug plan administered by Caremark Inc. See id. at 1; Matos Decl. ¶¶ 5-7, Jan. 26, 2006; see also Division 1181's Rule 56.1 Response 3-4.
There is no dispute that Noia has been and is currently covered by the Con Ed Program. See Noia Decl. ¶ 5, Jan. 25, 2007. In addition, there is no dispute that the Con Ed Program coordinates benefits with other plans in part pursuant to the following language:
Dependent Rule: If a plan covers you as an employee, member, subscriber, or retiree, then that plan is primary. . . .
There is a special exception to the dependent rule. If you are Medicare-eligible and Medicare is secondary to the plan covering you as a dependent, and Medicare is primary to the plan covering you as a retiree, then the order of benefits is reversed. In this case, the plan covering you as a retiree is secondary and the plan covering you as a dependent is primary.
Con Ed SPD 82; see also Con Ed's Rule 56.1 Statement ¶ 26; Division 1181's Rule 56.1 Response 4; Plaintiff's Statement Pursuant to Local Rule 56.1 ("Noia's Rule 56.1 Statement") ¶ 32.
The parties do dispute whether the Con Ed Program is "supplemental" to Medicare, however. The Con Ed Program's Summary Plan Description ("SPD") provides as follows:
If you're a Medicare-eligible participant, the Retiree Health Plan offers you a supplemental medical plan with UnitedHealthcare. The Plan works together with your Medicare coverage and automatically offsets Medicare approved charges for reimbursement. Con Ed SPD 46; see also Con Ed's Rule 56.1 Statement ¶ 25; Division 1181's Rule 56.1 Response 4-5; Plaintiffs' Opposition Statement of Material Facts Pursuant to Local Rule 56.1 ("Noia's Rule 56.1 Response") ¶¶ 16-18. Pursuant to this language, the plaintiffs characterize the Con Ed Program as providing "comprehensive benefits, with coordination of benefits when enrollees are eligible for benefits under Medicare." Noia's Rule 56.1 Response ¶ 16 (citing Con Ed SPD 46-50). But the plaintiffs claim that the Con Ed Program is not wholly Medicare-dependant -- they claim the plan covers some expenses not covered by Medicare, like private duty nursing, see Con Ed SPD 42-43, and Medicare covers expenses not covered by the Con Ed Program, like shoe orthotics, see id. at 62. They also suggest that the Con Ed Program has the discretion to cover payments over and above those covered by Medicare. Plaintiff's Reply Memorandum in Further Support of Their Summary Judgment Motion 4-5 n.6 (citing Scherzer Decl. ¶¶ 5.01(b)(iv), 4.01). The plaintiffs also claim the Con Ed Program is not authorized by the applicable statute for Medicare supplemental plans (so-called "Medigap" policies).*fn7 Noia's Rule 56.1 Response ¶ 16.
By contrast, the Con Ed Program characterizes itself as "a Medicare supplemental plan" that "pays, if at all, a percentage of approved Medicare Part A and B expenses that have not been fully paid for by Medicare." Con Ed's Rule 56.1 Statement ¶ 17 (citing Con Ed SPD 64-66) (emphasis added); see also Matos Decl. ¶ 7, Sept. 29, 2006 ("[T]he Con Edison Retiree Plan is designed to provide primary coverage to the non-Medicare-eligible participant and supplemental coverage to the Medicare-eligible participant. Medicare is the primary payer plan and the Con Edison Retiree Plan is the secondary payer plan for each Medicare-eligible particpant."); id. ("A Medicare-eligible participant cannot elect to be in the non-Medicare group.").
D. Noia's Eligibility for Benefits from the Division 1181 Fund
Evelyn Noia, Noia's wife, works as a bus matron on a school bus that transports disabled children, and is therefore an eligible participant in the Division 1181 Fund. See Noia Decl. ¶ 4, Jan. 25, 2007; D'Ulisse Decl. ¶ 7, Jan. 26, 2007. The Division 1181 Fund is a self-funded, multiemployer benefit plan for, primarily, employees of signatories to collective-bargaining agreements with the Division 1181 A.T.U., AFL-CIO. D'Ulisse Decl. ¶ 3, Jan. 26, 2007. The Division 1181 Fund covers Noia as a dependent of his wife. See D'Ulisse Decl. ¶ 9, Jan. 26, 2007.
Until June 23, 2006, Rules 2 and 3 of the coordination of benefits provision of the Division 1181 Fund plan read in part as follows:
2. If you are covered as an employee under one health plan and are covered as a dependent under the other health plan, then the health plan covering you as an employee is primary.
Examples of Rule 2 are as follows: If you are a Covered Employee and your spouse has active coverage under another health plan: For you: Your active coverage is primary and your spouse's coverage is secondary;
For your spouse: Your spouse's primary coverage is the other health plan and this Plan's ...