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If you have an unpaid air ambulance claim, you may be interested in the recent decision in Lubinski v. CVS Health Welfare Benefit Plan, Case No. 20-cv-89, 2020 WL 6870822 (N.D. Ill. Nov. 24, 2020).

While on vacation in the Dominican Republic, Plaintiff Renatta Lubinski, who had a history of acute leukemia, developed multiple conditions that compromised her respiratory system and kidney function. Doctors determined Lubinski should be transported by air ambulance to receive lifesaving treatment in the United States. Because of her complicated diagnosis and medical history, Lubinski was taken to her local hospital in Illinois, where her own doctors, who cared for her regularly and were familiar with her medical condition, could treat her.

Aerocare Medical Transport System Inc., a company that provides highly specialized international air ambulance transportation services for patients in critical care, flew Lubinski from the Dominican Republic to Miami, Florida, and then from Miami to Evergreen Park, Illinois.

Aerocare charged $242,500 for the first flight and $284,250 for the second flight and submitted two claims for payment to Lubinski’s employee benefit plan, CVS Health Welfare Benefit Plan (CVS Plan), which was administered by Blue Cross and Blue Shield of Illinois (BCBSIL). BCBSIL initially denied Aerocare’s claim.

Aerocare appealed, and BCBS concluded that the first trip from the Dominican Republic to Miami was medically necessary and covered under the plan, but that the second trip from Miami to Evergreen Park was not. Aerocare was reimbursed $30,000 out of $242,500 and its second appeal for more money was denied. Under Lubinski’s employee benefit plan, air ambulance transportation was covered at a rate of 80% minus a deductible.

Aerocare initiated this lawsuit, seeking to recover payment for both trips, pre-judgment interest, and attorney’s fees. Defendants filed a motion to dismiss arguing (1) that the anti-assignment clause in the plan document precluded Aerocare’s claim and (2) that Aerocare failed to state a claim for relief. In response to the first argument, Lubinski replaced Aerocare as the plaintiff. This left defendants’ second argument for review.

As is typical in claims relating to air ambulance transport, the dispute usually revolves around the plan’s definitions of “eligible” or “allowed” charges to determine the rate of reimbursement for the services provided. Here, Lubinski alleged her benefit plan covered air ambulance transportation at a rate of 80% minus a deductible. But the Court objected to Lubinski not specifically alleging what the 80% applied to.

The plan document stated that benefits for ambulance transportation would be provided at 80% of the “Eligible Charge” or 80% of the “Maximum Allowance.” For out-of-network providers, “Eligible Charge” and “Maximum Allowance” meant the lesser of the provider’s billed charges or a rate determined by BCBS based on Medicare. If there were no facilities in the local area, coverage for ambulance transportation was limited to the closest facility that could provide the necessary service.

Interestingly, it does not appear that Plaintiff had obtained a copy of the plan prior to filing the operative allegations in the Complaint Therefore, the Court relied on Defendants’ submission on its motion to dismiss, to the Summary Plan Description which defined these key provider reimbursement provisions.

The Court dismissed Plaintiff’s Complaint without prejudice holding that Lubinski’s allegations of underpayment were insufficient. Lubinski had failed to meet her burden of showing that the closest hospital that could treat her was her local hospital in Illinois and not a hospital in the first major city the air ambulance took her—Miami.

This case highlights how difficult air ambulance claims can be especially when it does not appear that Plaintiff or the air ambulance provider had requested or obtained the applicable plan documents containing relevant and vital provisions pertaining to rate of reimbursement and air ambulance claims specifically. Most policies have provisions dealing with air ambulance travel.

What is most troubling about these cases is that air ambulance claims are often predicated on unanticipated emergency situations in which an insured is in vital need of immediate care and is stranded in a foreign jurisdiction. It is essentially an unforgiving proposition to be in this situation and to not know exactly what the long-term, downstream financial impacts of expensive air ambulance travel will end up being. As this case demonstrates, air ambulance travel provisions are very restrictive and can often leave consumers out of pocket or in debt six figures.

If your claims for air ambulance travel have been underpaid or denied outright, please feel free to call Kantor & Kantor for a free consultation or use our online contact form.