UnitedHealth Units Beat Claims of…

UnitedHealth Group Inc. and OptumRx defeated a health plan participant’s lawsuit claiming she was overcharged for prescription drugs, when a Minnesota federal judge determined that her lawsuit was based on a draft plan summary that contained a “scrivener’s error.”

Samantha Sohmer, who says she was overcharged by $130.53 for prescription drugs in 2016, failed to show that the draft summary plan description allegedly entitling her to a lower price was the operative document governing her health plan, Judge Joan N. Ericksen of the U.S. District Court for the District of Minnesota said in an opinion unsealed Thursday. And even if the 2016 draft relied on by Sohmer qualified as the operative document, the language in question is an unenforceable “scrivener’s error that does not reflect participants’ reasonable expectations of benefits,” Ericksen said.

The dispute turns on the correct method for charging health plan participants for prescription drugs under UnitedHealth plans. Previously, most plans used a “lesser-of-two” method in which participants paid the lesser of their applicable copayment and the amount charged by the pharmacy. In 2017, UnitedHealth shifted to “lesser-of-three” logic as the default method, requiring participants to pay the lesser of their copayment, the pharmacy charge, and the amount UnitedHealth agreed to pay the pharmacy.

Sohmer said she was wrongly overcharged for medication using the lesser-of-two method, even though a plan summary prepared by UnitedHealth in 2016 contained lesser-of-three language. But according to the defendants, there was no evidence Sohmer’s employer ever finalized or adopted this draft.

Ericksen sided with the defendants.

“Sohmer is attempting to enforce the terms of a draft summary plan description prepared by a claim administrator without any evidence that the plan sponsor failed to maintain a separate written instrument setting forth the terms and conditions of its plan and without any evidence that the plan sponsor adopted or otherwise intended the draft summary plan description to constitute the plan,” Ericksen said.

Ericksen also found the draft document’s lesser-of-three language was a scrivener’s error, and that it would be appropriate to reform the document under the Employee Retirement Income Security Act to correct the error.

Ericksen previously denied Sohmer’s request to have the case certified as a class action.

Sohmer is represented by Scott & Scott, Gustafson Gluek PLLC, Zimmerman Reed PLLP, Keller Rohrback LLP, Izard, Kindall & Raabe LLP, and Motley Rice LLC.

Dorsey & Whitney LLP represents the defendants.

The case is Sohmer v. UnitedHealth Grp., Inc., D. Minn., No. 0:18-cv-03191, opinion unsealed 2/3/22.

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