A 62-year-old kindergarten teacher in Oregon has sued Moda Health Plan and its benefits administrator, EviCore Healthcare, claiming the insurer denied her medically necessary neck surgery solely because she was two years past an age cutoff, The Lund Report reported.
The lawsuit, filed Nov. 3 in Multnomah County Circuit Court on behalf of Patricia Devine Jenson, seeks class-action status and more than $15 million in damages. Jenson, who is insured by Moda through the Oregon Educators Benefit Board, needed disc replacement surgery in her neck to prevent further nerve damage and potential paralysis, according to the suit.
Moda Cited an Age Limit of 60 in Three Denials
Moda denied Jenson’s coverage three times, each time citing her age, the suit states. In its first denial on July 10, Moda said it was relying on EviCore guidelines for the procedure but quoted language setting an age limit: “There is an age limit for this service. You must be between 18 and 60 years old. You do not fit the safety needs for this treatment.”
Jenson received a second denial on July 14 through what the suit describes as a robocall. Three days after her surgery, she received a final denial that again cited her age. The suit also states that Moda has yet to agree to pay for needed physical therapy.
Jenson Paid Nearly $30,000 Out of Pocket for the July 17 Operation
Jenson’s case dates to early July, when she saw a spinal orthopedic surgeon after four months of neck pain and tingling, burning or prickling sensations that other treatments did not help, the suit states. The surgeon concluded that replacing a damaged disc in her neck with an implant was the most appropriate treatment, and that alternatives such as spinal fusion could lead to further problems.
The surgeon proposed an artificial disc approved by the Food and Drug Administration for patients up to age 67. At 62, the suit states, Jenson was well within the FDA’s recommended guidelines, and the surgeon found her spinal health good with minimal degenerative changes. The operation was initially scheduled for July 8, then moved to July 17 while Jenson sought approval, which required prior authorization from the insurer.
In her appeal, Jenson wrote that delaying the operation could result in serious and permanent consequences, that her surgeon considered the surgery urgent, and that even a minor fall or car accident could result in paralysis. She asked for an expedited decision “as a person, not an age,” according to the suit. Her surgeon also wrote to Moda that the operation needed to be done soon to protect her from potential neurological damage.
Ultimately, Jenson obtained a loan from a family member and paid nearly $30,000 out of pocket for the July 17 surgery. The suit calls the operation a success: she experienced significant improvement and returned to work for the start of the school year.
The Suit Alleges Age Discrimination, Breach of Contract and Negligence
The complaint, brought by Portland-based firm Estok Young and Eugene firm Eiva Law, accuses Moda of breach of contract, negligence and age discrimination, and argues that denying treatment based on age is unlawful under Oregon’s insurance laws. It states that the insurer acted with “malice or a reckless and outrageous indifference to a highly unreasonable risk of harm” to people needing medical care.
The suit requests a jury trial and asks that the class action cover anyone denied the surgery by Moda because they were older than 60. It seeks to apply to similar Oregon plans regulated by the state rather than U.S. law, covering Nov. 1, 2020 to the present.
Union Defends Healthcare Rights for Members
A spokesperson for the Oregon Education Association told The Lund Report that “access to quality, affordable healthcare is a fundamental right for OEA members” and that no person should have care denied for “unlawful and discriminatory reasons.” The union said it was not aware of recent complaints about the alleged practice but would follow the case closely.
A spokesperson for the Oregon Department of Consumer and Business Services declined to comment on the case but said that in general, coverage decisions must be based on plan terms and medical necessity, and that state and federal law prohibit unfair discrimination in health coverage, including on the basis of age, though clinical criteria may take age into account where medically relevant. Whether any particular denial is lawful, the spokesperson said, depends on the facts and the plan involved.
The Oregon Educators Benefit Board, part of the Oregon Health Authority, said it cannot comment on lawsuits but added that it prioritizes centering equity in its health benefits and is pursuing further information on the matter.
What We Don’t Know Yet
Moda and EviCore representatives did not immediately respond to requests for comment. The suit also notes that EviCore’s guidelines lack stated justification for the age limit and say each decision is made on a case-by-case basis, which the complaint disputes given the repeated age-based denials.
Questions Readers Are Asking
Why did Moda deny the surgery if the implant is FDA-approved up to age 67?
The suit states that Moda relied on EviCore guidelines setting an age limit of 60 for the procedure, while the artificial disc Jenson’s surgeon proposed is FDA-approved for patients up to 67. The guidelines’ justification for the lower age limit is disputed in the complaint.
Who could join the class action?
The suit asks that the class include anyone denied this surgery by Moda because they were older than 60, under Oregon-regulated plans, for denials from Nov. 1, 2020 to the present.
What is the case seeking?
More than $15 million in damages, class-action status, and a jury trial in Multnomah County Circuit Court.
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