Issued and entered January 21, 2003 by Frank M. Fitzgerald, Commissioner

ORDER

I
PROCEDURAL BACKGROUND

On August 15, 2002, XXXXXXXXXXXXX (Petitioner) filed a request for external review with the Commissioner of Financial and Insurance Services (Commissioner) under the Patient’s Right to Independent Review Act (PRIRA), MCL 550.1901 et seq. After a review of the material submitted, the Commissioner accepted the request and determined the issue required a medical opinion. On August 23, 2002, the Commissioner assigned the case to an independent review organization (IRO). On September 17, 2002, the IRO provided its recommendation to the Commissioner.

II
FACTUAL BACKGROUND

On December 16, 2001, Petitioner was admitted to XXXXXXXXXXXXXXXX after experiencing an anaphylactic reaction, probably caused by ingesting Ibuprofen. On December 27, 2001, Petitioner’s physician evaluated her and ordered allergy testing to determine the source of the allergen. Petitioner’s physcian had her return on January 14, 2002 at which time he performed an ”oral challenge with ibuprofen” allergy test. BCBSM denied payment for the oral challenge claiming it was not a covered benefit.

Petitioner believes BCBSM is required to pay for the oral challenge because it was medically necessary and allergy testing is a covered benefit under her Certificate of Coverage.

III
ISSUE

Whether BCBSM properly denied coverage for the “oral challenge with ibuprofen” allergy test?

IV
ANALYSIS

Petitioner’s Position

Petitioner argues that her BCBSM benefit book states allergy testing is a covered benefit. In fact, neither the Petitioner nor the doctor’s office staff foresaw any coverage problem.

During the oral challenge, Petitioner was given a dose of ibuprofen, but she had no reaction. When a second dose was administered she had an anaphylactic reaction. The doctor immediately administered medication to stop the reaction. The test results confirmed she had a severe reaction to ibuprofen and aspirin and must now carry an injection at all times and must wear a medical alert tag.

Petitioner’s doctor noted she is severely allergic to the two medications. If she had continued to take these medications, the reaction could have killed her. She argues that without the oral challenge test, the doctors would not have discovered this. Petitioner does not understand why BCBSM will pay for some allergy testing but are refusing to pay for a more conclusive test that ultimately saved her life.

Petitioner was informed by BCBSM that provocative antigen tests are covered under her Certificate. She claims that her ingestion allergy test falls within this class of allergy testing. She also claims this test was medically necessary to determine her allergy. Therefore, Petitioner argues this test is a covered benefit under her BCBSM Certificate.

BCBSM’s Position

Petitioner has coverage as a dependent under her husband’s contract with his employer. The Community Blue Group Benefit Certificate governs the coverage. This Certificate provides in pertinent part at page 4.10:

Allergy Testing and Therapy

We pay for the following allergy testing and therapy services performed by or under the supervision of a physician.

Allergy Testing.

-Survey, including history, physical exam, and diagnostic laboratory studies
-Intradermal, scratch and puncture tests
-Patch, photo, insufflate, and provocative antigen tests

In addition the Certificate states at page 6.2:

Experimental or Investigative Services

We do not pay for experimental or investigational drugs or services. Facility services and physician services, including diagnostic tests related to experimental or investigational procedures are also not payable.

BCBSM claims that the Certificate language clearly enumerates the different allergy testing and therapy services that are payable. Since ingestion challenge is not one of those listed, BCBSM claims it is not a covered benefit.

BCBSM also claims that the ingestion challenge test provided the Petitioner is investigational and is therefore excluded under the Certificate. BCBSM supports this claim BCBSM & BCN Medical Policy Manual on Allergy Testing and Treatment, which provides that ingestion challenge is investigational.

Based on these positions BCBSM claims it acted properly when it denied payment for the Petitioner’s ingestion challenge allergy test.

Independent Review Organization (IRO) Recommendation

The IRO found that an oral ingestion is well within the standard of care when attempting to rule out an allergic reaction to a food or medication. When skin or serological testing is negative, an oral ingestion challenge to the suspected allergen person in its usual and customary fashion is performed to rule out hypersensitivity to suspected food or allergen. The IRO specifically indicated that there are no accurate skin tests for allergy to ibuprofen or aspirin. As a result the IRO recommended overturning BCBSM’s final adverse determination.

Commissioner’s Review

The Certificate of Coverage controls the analysis in this matter. The Certificate language covers “provocative antigen tests.” However, the documentation submitted by BCBSM does not define the phrase “provocative antigen tests.” In the absence of any definition, the Commissioner is left to question the validity of the BCBSM denial.

The Commissioner finds the phrase “provocative antigen tests” to be ambiguous. Under Michigan law ambiguous contract terms are construed in favor or the insured. Auto Club Ins Ass’n v. DeLaGarza, 433 Mich 208, 444 N.W. 2d 803 (1989). The Commissioner therefore shall construe the ambiguity in favor of Petitioner and find BCBSM’s denial, which was based on the premise the oral challenge was not a provocative antigen test, is unsupported and without merit.

BCBSM’s second reason for denial alleged the oral challenge for Ibuprofen was investigational. In support of its proposition, BCBSM cited its BCBSM & BCN Medical Policy Manual on Allergy Testing and Treatment. Upon review of the case file, it appears this Manual is not part of the applicable Certificate of Coverage because it was not incorporated by reference into the Certificate. As a result, the Commissioner shall consider the Manual only for its relevance and weight as a source of medical authority involving the alleged investigational nature of the oral challenge for Ibuprofen test. The Manual indeed states, “The following allergy tests are considered investigational: Provocative testing or challenge testing.”

The Manual’s proclamation is made however without reference to studies, findings, medical documentation or objective medical opinion. Also, the BCBSM medical director reviewed the Petitioner’s grievance file and merely attached a copy of the Manual. The case file contains no statement from the medical reviewer explaining exactly why the oral challenge test is investigational.

The Manual’s proclamation also appears inconsistent with the coverage language in the Certificate. The Certificate expressly covers “provocative antigen tests.” In light of fact this term is ambiguous, it is difficult to determine whether a “provocative antigen test” is the same as “provocative testing or challenge testing.” Regardless of whether the definitions are congruent, the important point is that the Manual has questionable value as support for the BCBSM “investigational” argument.

Finally, the IRO concluded the oral challenge test is well within the standard of care to completely rule out an allergic reaction to a food or medication. Therefore, the Commissioner determines that this test is not investigational under the BCBSM Certificate of Coverage.

V
ORDER

The Commissioner ORDERS that the final adverse determination of BCBSM dated June 13, 2002, is reversed. BCBSM is required to pay for the oral ingestion challenge with ibuprofen provided the Petitioner on January 14, 2002. BCBSM shall pay for this claim within sixty days and shall provide the Commissioner proof of payment no later than seven days from the date of payment. To seek enforcement of this Order, Petitioner must report any complaint regarding payment to the Office of Financial and Insurance Services, Health Plans Division, toll free 877 999 6442.

This is a final decision of an administrative agency. Under MCL 550.1915 any person aggrieved by this Order may seek judicial review no later than sixty days from the date of this Order in the Circuit Court for the county where the covered person resides or in the Circuit Court of Ingham County. A copy of the petition for judicial review should be sent to the Commissioner of the Office of Financial and Insurance Services, Health Plans Division, Post Office Box 30220, Lansing, MI 48909-7720.