United States District Court, E.D. New York
HUMPHREY O. UDDOH, and PLAMEN KOEV, Plaintiffs,
UNITED HEALTHCARE, THE EMPIRE PLAN NYSHIP, GINGER W. WHISPELL, and JENNIFER JABLONSKI, Defendants.
MEMORANDUM DECISION & ORDER
M. Cogan, District Judge.
pro se are a same-sex, male couple who applied for
insurance benefits through their insurance plan in connection
with their desire to parent a child using in vitro
fertilization (“IVF”) and non-paid surrogacy.
After initially issuing a conditional pre-approval of
coverage based on the mistaken assumption that plaintiffs
were a heterosexual couple and thus it would be approving
female implantation procedures for one of the insureds, the
policy administrator reversed its position and denied
coverage on the ground that the policy does not cover
surrogacy, whether for heterosexual or homosexual insureds.
After further consideration, the policy administrator
modified its position and agreed to pay for medical
procedures necessary for the collection of sperm from both
plaintiffs, but not for the collection or implantation of
oocytes or surrogacy procedures.
that the insurer's change of position has caused them
damages, and that it constitutes illegal discrimination, and
that they were defamed in the process, plaintiffs have
brought this action alleging four claims for relief:
violation of the Equal Protection Clause under 42 U.S.C.
§ 1983; breach of contract; slander; and
“detrimental reliance” (i.e., promissory
estoppel). Defendants consist of plaintiffs' insurance
plan, sued as “The Empire Plan (NYSHIP)”
(referred to as “Empire”); the plan
administrator, United Healthcare (“United”); and
two United employees, Ginger W. Whispell and Jennifer
Jablonski (together with United, the “United
defendants have moved to dismiss on various grounds.
Defendants' motions to dismiss are granted and plaintiffs
are granted leave to file an amended complaint to the extent
set forth below within 14 days.
the complaint in the light most favorable to these pro
se plaintiffs, plaintiff Humphrey O. Uddoh is an
attorney for the New York City Transit
Authority. His employer provides health insurance
through the New York State Health Insurance Program (NYSHIP),
which offers a plan known as the Empire Plan, under which he
has been covered for almost a decade. He added his male
partner, plaintiff Plamen Koev, as an additional insured at
the same time he signed up. The application to add Koev
disclosed that Koev is a male.
the complaint treats Empire and United as a single entity, it
is clear from the over 90 pages of documents annexed to the
complaint, which are deemed part of the complaint for
purposes of defendants' motions, see Rothman v.
Gregor, 220 F.3d 81, 88-89 (2d Cir. 2000), that United
acts as the policy and/or claims administrator for Empire,
and that defendants Jablonski and Whispell are employed by
decided to start a family in early 2014. Plaintiff Uddoh
applied for pre-approval of certain IVF procedures - the
complaint does not set forth the specifics of the application
- which, in part, had to do with the fact that both
plaintiffs have conditions that required some fairly serious
surgery in order to collect the sperm necessary for IVF. On
May 16, 2014, plaintiff Uddoh received a letter from United
“confirming that the following qualified procedures for
you and Plamen Koev are a covered expense under your health
benefit plan: IVF, GIFT, ZIF, ICSI, Assisted Hatching, MESA,
TESE, sperm, egg or inseminated egg procurement, processing,
egg or embryo banking determined appropriate by your
physician.” The letter also stated: “Please note
that payment is subject to patient eligibility and Empire
Plan provisions at the time the health care services are
received.” The complaint acknowledges that at the time
it sent this letter, United was operating under the
misimpression that “Plamen Koev” was a female,
although plaintiffs believe that this was an unreasonable
misimpression in light of the disclosure in the insurance
application that Koev is a male, and perhaps - the complaint
is not entirely clear - the fact that Koev had submitted
prior insurance claims that confirmed this. In any event, the
matter apparently came to light when a United employee,
defendant Whispell, called one of Koev's medical care
providers to inquire whether he is male or female. After
finding out that Koev is a male, Whispell allegedly told the
provider to immediately cancel the procedure.
learning about this exchange, plaintiff Uddoh contacted
Whispell's supervisor, defendant Jablonski. At that
point, Jablonski accused Uddoh of insurance fraud and
threatened to seek recoupment of the surgical costs that had
already been paid for Uddoh's two surgical procedures. In
addition, the complaint alleges that defendants Jablonski and
Whispell, made similar accusations of fraud to
plaintiffs' health care provider.
complaint does not allege the date when this mistake was
discovered, but on November 4, 2014, United sent a letter to
plaintiff Koev disclaiming coverage for his portion of
“infertility services.” The letter stated that
We have completed a request for infertility services for you.
Your condition is not consistent with the Plan benefit for
infertility services. You do not qualify for the benefit
because your condition is not the reason a pregnancy cannot
be achieved. In addition the plan does not provide benefits
in connection with services for surrogacy.
Under the terms of the Empire Plan, “For the purposes
of this benefit, infertility is defined as a condition of an
individual who is unable to achieve a pregnancy because the
individual and/or partner has been diagnosed as infertile by
a physician.” In addition, “Medical expenses or
any other charges in connection with surrogacy” are
excluded from coverage under the Plan. Accordingly any
charges or expenses for services related to your infertility
or in connection with surrogacy are not covered.
these communications, Uddoh demonstrated to United that Koev
had always been identified as a male, both in the policy
application and in claims that he had previously submitted.
United thereupon agreed to modify its rejection letter. It
agreed to cover the surgical procedures for the harvesting of
the sperm from both plaintiffs, its storage, and
it did not agree to “[p]rocurement of oocytes” or
“[s]ervices rendered to a surrogate.” The basis
for this denial was that the Empire Plan expressly excludes
“[m]edical expenses or any other charges in connection
with surrogacy”; “[a]ny donor compensation or
fees charged in facilitating a pregnancy”; and
“[a]ny charges for services provided to a donor in
facilitating a pregnancy.” The complaint alleges that
in reliance on the initial pre-approval letter, plaintiffs
spent $150, 000 that is not covered under the revised
approval letter. Plaintiffs have not clearly explained why
not. As best I can tell from the complaint and
plaintiffs' memoranda in opposition to defendants'
motions, plaintiffs originally had a volunteer (non-paid)
surrogate willing to assist them when they received the
pre-approval, but the revocation of approval ...