Should the FEHB Be Required to Cover Speech-Generating Devices for the Hearing Impaired?

A recent lawsuit unsuccessfully sought a ruling ordering OPM to require, rather than just encourage, FEHB insurers to cover certain equipment for the hearing impaired.

While raising an interesting issue, the lawsuit attempting to require OPM to in turn require FEHB health insurance companies to cover speech-generating devices for the hearing impaired failed because the court found there was no jurisdiction to entertain it. (Huron and U.S. Society for Augmentative and Alternative Communication v. Cobert, Director of U.S. Office of Personnel Management (C.A.F.C. No. 14-5042, 1/19/2016)).

The facts described here are taken from the court’s decision dismissing the lawsuit.

Most readers are aware that the Office of Personnel Management is in charge of the Federal Employee Health Benefits Program (FEHB). In this role, the agency contracts with many insurance companies on a year-to-year basis for plans to be served up to employees and retirees as part of the annual open season selection process.

Since 2008 OPM has “encouraged” rather than required the plans to cover speech-generating devices under their durable medical equipment coverage for FEHB. In response to this encouragement, some policies cover the devices and some do not. Of those that provide coverage, it varies in amount.

The plaintiffs are a non-profit society with interest in such issues, and Mr. Huron, who is both a member of the Society and a spouse covered through his wife’s FEHB insurance. Huron uses a speech-generating device that was previously covered by his private insurance. After switching to his wife’s GEHA policy through the FEHB, Huron’s $5000 device went kaput. However, GEHA provides no coverage for the device and Medicare reimburses only 80% of the cost for a new one.

Without going into the detailed legal analysis, essentially the court concluded there was no jurisdiction because Huron’s “injury” (no coverage for the device by GEHA) is not traceable to OPM’s actions, but rather to Huron’s decision to pick a plan that did not cover the device even though other FEHB plans did.

While the plaintiffs raised an issue of more than passing interest to those who rely on these devices, they will not get their day in court. The lesson perhaps is when selecting coverage during the annual open season, be careful to do your due diligence if you rely on particular medical devices or procedures that not all plans may cover.

Huron v. Cobert (14-5042)

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.