                                                          NOT PRECEDENTIAL


                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT

                              ___________

                              No. 12-3830
                              ___________


 PAIN & SURGERY AMBULATORY CENTER, P.C., as assignee and authorized
representatives of CHRISTINE DENOLA, CELIA GONZALEZ, IRENE PERCIA,
    ROBERT POST, DEIRDRE SCARPULLA, and SUSAN WILAMOWSKI,
                                            Appellants

                                      v.

       CONNECTICUT GENERAL LIFE INSURANCE COMPANY

                                  `

              On Appeal from the United States District Court
                        for the District of New Jersey
                    (District Court No.: 2-11-cv-05209)
              District Judge: Honorable Katharine S. Hayden



                Submitted under Third Circuit LAR 34.1(a)
                          on September 9, 2013


                   (Opinion Filed: September 10, 2013 )


    Before: RENDELL, JORDAN and GREENAWAY, JR., Circuit Judges
                                        OPINION


RENDELL, Circuit Judge:

       In a comprehensive and well–reasoned opinion, Judge Katharine Hayden of the

District Court for the District of New Jersey granted summary judgment in favor of

Connecticut General Life Insurance Company (“CGLIC”), rejecting Appellants’

arguments that Appellants’ bills for surgical procedures at Pain & Surgery Ambulatory

Center, P.C., (“PSAC”) should have been allowed as “facility fees” covered under the

policies issued pursuant to CGLIC’s benefit plan. For the reasons set forth below, we

will affirm.

       The parties are well aware of the factual setting so we will not discuss the facts

other than those necessary to our ruling.

       CGLIC’s denials were based on its conclusion that PSAC does not qualify as a

“Free-Standing Surgical Facility” under the terms and conditions of the CGLIC

administered “Open Access Plan” in question, and the policies issued pursuant thereto.

Appellants concede that PSAC is not a Free-Standing Surgical Facility – which would

require it to maintain at least two operating rooms and one recovery room. However,

they urge that it should be included as an “Other Health Care Facility,” defined as “a

facility Other than a Hospital or hospice facility. Examples of Other Health Care

Facilities include, but are not limited to, licensed skilled nursing facilities, rehabilitation

Hospitals and subacute facilities.” (App. 9).


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       PSAC’s facility consists of one room for use as an operating room and a separate

recovery area. Patients are charged “professional fees” and “facility fees.” The latter are

at issue here.

       Appellants urge that the District Court misapprehended the applicable standard of

review in its consideration of CGLIC’s denials, and also improperly failed to allocate the

burden of proof to CGLIC. As to the merits, they contend that the District Court erred,

specifically, in concluding that the term “Other Health Care Facilities” is implicitly

limited to inpatient facilities. We conclude that we need not address the issues of the

standard or the burden because, even under a de novo standard, and even putting the

burden on GLIC, the plain and unambiguous language of the policies, as analyzed

by the District Court, convinces us that the District Court’s reasoning was correct and

Appellants’ argument must fail.

       The District Court’s opinion provides a salient analysis of the policies before it:

                         These policies state that “[t]The term Other Health
                 Care Facility means a facility other than a Hospital or hospice
                 facility. Examples of Other Health Care Facilities include,
                 but are not limited to, licensed skilled nursing facilities,
                 rehabilitation Hospitals and subacute facilities.” (Denola Pol.
                 57.) Taken literally, the definition would mean that
                 absolutely any facility would qualify so long as it is neither a
                 hospital nor a hospice. Such a broad definition would be
                 patently absurd for two reasons. First, it would render
                 meaningless the definitions and provisions for coverage by
                 other, specific types of facilities, such as the aforementioned
                 Free-Standing Surgical Facilities. Second, it would make the
                 “examples” provided in the second sentence of the definition
                 mere surplusage; they would serve as nothing more than
                 randomly selected types of facilities other than hospitals and
                 hospices, placed in the list as a friendly reminder as to what
                 type of non-hospital and non-hospice facilities exist….

                                                3
                     CGLIC notes that the definition of “Other Health Care
             Facility” excludes hospitals and hospice facilities, which have
             specific definitions elsewhere in the plans. (CGLIC Moving
             Br. 17.) The result of double-inclusion of such facilities
             would have been inconsistent levels of coverage. (Id. at 18
             (citing Denola Pol. at 11).) The fact that the plan did not
             expressly exclude other already-covered facilities, such as
             Free-Standing Surgical Facilities, from coverage is a
             reflection of the fact that, CGLIC argues, “the Other Health
             Care Facility clause plainly deals with inpatient facilities.”
             (Id.) To support this interpretation further, CGLIC points out
             that the fee schedule’s only reference to Other Health Care
             Facilities establishes a sixty-day annual cap on coverage, as
             opposed to the apportionment of payment to surgical centers
             in terms of a percentage of cost rather than the span of time.
             (Id. (citing Denola Pol. at 16).) The Court finds that this
             explanation comprehensively utilizes each part of the “Other
             Health Care Facility” definition to demonstrate why the
             exclusion of hospitals and hospice facilities, and the inclusion
             of “licensed skilled nursing facilities, rehabilitation Hospitals
             and subacute facilities,” together lead to the conclusion that
             surgical centers do not fall within the scope of the definition.

                     Of course, the Court need not develop and the parties
             need not explain a comprehensive framework for what
             particular facilities do and do not fit within the “Other Health
             Care Facility” provision. The only question before the Court
             is whether PSAC qualifies. The core problem with PSAC’s
             argument is that the policies include a very thorough and
             carefully drafted definition of a Free-Standing Surgical
             Facility. PSAC would fit that definition if it were licensed
             and possessed a second operating room, but it is not and does
             not. For that reason, it is simply unreasonable for the Court
             to get around these restrictions and read the plans as including
             a catch-all “Other Health Care Facility” definition that is so
             broad that it renders meaningless the detailed limitations of
             other portions of the definition. (App. 9-11)

      We agree with the District Court’s reasoning and find that Appellants’ argument

that PSAC should be found to fit within the definition of “Other Health Care Facility” is

without merit.

                                            4
      Accordingly, we will affirm the order of the District Court granting summary

judgment in favor of CGLIC.




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