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Uddoh v. United Healthcare

United States District Court, E.D. New York

February 10, 2017



          Brian M. Cogan, District Judge.

         Plaintiffs 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.

         Claiming 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[1] and Jennifer Jablonski (together with United, the “United Defendants”).

         All 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.


         Construing 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.[2] 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.

         Although 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 United.[3]

         Plaintiffs 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.

         After 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.

         The 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.

         After 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 fertilization.

         However, 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 ...

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