BEFORE THE ALASKA OFFICE OF ADMINISTRATIVE HEARINGS ON REFERRAL FROM THE DEPARTMENT OF ADMINISTRATION ORDER GRANTING SUMMARY ADJUDICATION
S E is a retiree under the Teachers’ Retirement System (“TRS”) and is entitled to benefits
of the AlaskaCare Retiree Health Plan (“Plan”). On September 26, 2007, Mr. E underwent
radical retropubic prostatectomy surgery at the Mayo Clinic. Mr. E’s urologist, Dr. Matthew
Gettman, prescribed “Cialis, 20 mg, one-half tablet on a therapeutic schedule of two times per
week for six weeks” and after six weeks as needed. Dr. Gettman’s medical opinion in this case
is that “.the regular use of Cialis following radical prostatectomy surgery promotes
rehabilitation of sexual function, an important quality of life issue. For this reason we
recommend that this prescription be considered a medical necessity and covered by insurance.”
Mr. E requested reimbursement from the plan for the cost of Cialis. His claim was
denied at all levels of appeal and reconsideration allowed by the plan. On March 19, 2008, the
Director of the Division of Retirement and Benefits declined Mr. E’s request for reimbursement:
Unfortunately, I am unable to accommodate your request.
The Retiree Insurance Information Booklet provides
on page 54 that services, therapy, drugs or supplies for sexual
dysfunction or inadequacies, including supplies for a prosthesis in
This exclusion applies regardless of the purpose for which the drug has been prescribed.
On April 21, 2008, Mr. E filed his appeal of the denial. The appeal was referred to the
Office of Administrative Hearings on May 2, 2008. The Administrator of the Public Employees’
Retirement System (“Administrator”) moved for summary adjudication on May 21, 2008. A
1 Mr. E is a retiree under TRS. Prior fillings in the case were identified as OAH No. 08-0214-PER. The case should have been identified as a TRS case from the onset. 2 Cialis is a prescription drug manufactured by Eli Lilly and Company and used to treat erectile dysfunction. Patient Information, Eli Lily and Company (2008) and Prescribing Information for Cialis, Eli Lily and Company (2008) 3 R. 53. 4 R. 5(emphasis added).
telephonic conference was held on May 30, 2008. Mr. E participated. Ms. Jessica Srader,
Assistant Attorney General, participated on behalf of the Administrator. During the telephonic
conference, the parties reached agreement that it would be best to address the pending motion for
summary adjudication early in this appeal. Mr. E timely filed his opposition to summary
The parties do not dispute that 2 AAC 64.250 (a) gives the Office of Administrative
Hearings (“OAH”) authority to grant summary adjudication if a genuine dispute does not exist
between the parties on an issue of material fact. To defeat a motion for summary adjudication,
the opposing party may not rely on mere denial and must show by affidavit or other evidence
that a genuine dispute exists on a material fact for which an evidentiary hearing is required.
Mr. E asserts that reimbursement for Cialis should be allowed by the Plan, particularly
when his doctor has prescribed the drug for therapeutic and healing purposes. The Administrator
may or may not share Mr. E’s reasonable opinion, but it is an immutable, material fact that Cialis
is a drug excluded from coverage under the Plan. Mr. E does not like the exclusion, but
rationally observes in his opposition that “(I)t is indeed clear that the Plan does not allow
payment for Cialis, Viagra or other drugs administered for erectile dysfunction.” The
Administrator’s denial of Mr. E’s claim does not give rise to a disputed material fact.
The Plan is a contract to which Mr. E is a party. The Plan must be interpreted in the same
manner as any other insurance contract. Mr. E now agrees with the Administrator that Cialis is
Mr. E is of the strong opinion that Cialis should be covered by the Plan because his
doctor prescribed it for him. Mr. E’s opinions and future actions may be the catalyst for changes
to the Plan. However, the Commissioner of Administration has the plenary authority to establish
Plan coverage. As noted above, it is very clear and not subject to interpretation that Cialis is
presently excluded from coverage under the Plan.
For the reasons set forth above, the Administrator’s motion for summary adjudication is
GRANTED, the Administrator’s decision of March 19, 2008 to deny coverage for Cialis is
5 2 AAC 64.250(b) 6 See State v. Arbuckle, 941 P.2d 181, 184 (Alaska 1997) (interpreting an insurance contract which cover a state employee). 7 Mr. E’s opposition dated June 4, 2008 and filed June 6, 2008. 8 AS 39.30.090 and .091 require that the Commissioner provide a group health plan for employees who have retired under the provisions of the TRS.
AFFIRMED, the formal hearing now set for August 5, 2008 is VACATED, and this appeal is
DISMISSED without prejudice to any other rights which Mr. E may have.
Certificate of Service: The undersigned certifies that on the 13th day of June, 2008, a true and correct copy
of this document was mailed to the following: S E; Jessica Srader, AAG.
[This document has been modified to conform to the technical standards for publication.]
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