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E.R. v. UnitedHealthcare Insurance Co.

United States District Court, D. Connecticut

March 30, 2017

E.R., Plaintiff,


          Charles S. Haight, Jr. Senior United States District Judge.

         In this action, Plaintiff E.R. brings suit against her insurer for denying coverage of residential treatment for an eating disorder. Plaintiff asserts that the denial was both arbitrary and capricious because the treatment was "medically necessary" as defined in Plaintiff's insurance policy, which is governed by the Employee Retirement Income Security Act of 1974 ("ERISA"). Plaintiff argues the treatment was "medically necessary" given Plaintiff's medical history, record and condition at the time of the denial. Plaintiff and Defendant, UnitedHealthcare Insurance Company ("United"), have each moved for summary judgment. This Ruling resolves these fully briefed cross-motions.

         I. Factual Background

         On January 1, 2013, Plaintiff was enrolled as a beneficiary in a UnitedHealthcare Choice Plus Plan issued to a company called I.T. Xchange Corp. Doc. 34 ¶ 3. Pursuant to the Group Enrollment Agreement between United and I.T. Xchange, United issued a Certificate of Coverage to Plaintiff that set forth the terms, limitations, conditions, and exclusions of coverage under the policy (collectively the "Policy" or "Plan"). Ex. A at 003[1]; Doc. 34 ¶ 4.

         A. Plaintiff's Policy

         The Plan states that the Certificate of Coverage "is a part of the policy" providing benefits to "Covered Persons, subject to the terms conditions, exclusions, and limitations of the Policy." Ex. A at 004. The Certificate also states that the Policy includes, in addition to the Certificate, the Group Policy, Schedule of Benefits, Enrolling Group's applications, riders and amendments. Id. The Plan provides that United has "discretion" to "[i]nterpret Benefits and the other terms, limitations and exclusions set out in this Certificate, the Schedule of Benefits and any Riders and/or Amendments" as well as to "[m]ake factual determinations relating to Benefits." Id. at 008, 059. The Plan further provides that United "may delegate this discretionary authority [to determine benefits] to other persons or entities that may provide administrative services for this Benefit plan, such as claims processing" and that the "identity of the service providers and the nature of their services may be changed from time to time in [United's] discretion." Id. at 008, 059.

         The Plan covers "Mental Health Services" provided by out-of-network providers so long as those services are "Covered" under the terms of the Plan. Id. at 006, 008-10, 017, 030. Mental Health Services include "those received on an inpatient basis in a Hospital or Alternate Facility, and those received on an outpatient basis in a provider's office or at an Alternate Facility, " which includes "[s]ervices at a Residential Treatment Facility." Id. at 017. However, only services that are "Medically Necessary" are covered by the Plan. Id. at 012, 063, 066. A service is "Medically Necessary" if it is (1) "[p]rovided for the diagnosis, treatment, cure [sic] relief of a health condition, illness, injury or disease"; (2) "not for experimental investigational or cosmetic purposes, " except as provided under "GS 38-3-255"; (3) "[n]ecessary for and appropriate to the diagnosis, treatment, cure, or relief of a health condition, illness, injury, disease or its symptoms"; (4) "[w]ithin generally accepted standards of medical care in the community"; and (5) "[n]ot solely for the convenience of the Covered Person, the Covered Person's family or the provider." Id. at 066.

         The Plan also provides for a "Mental Health/Substance Use Disorder Designee" who is the individual or organization designated by United "that provides or arranges Mental Health Services" for which benefits are available under the Policy. Ex. A at 066. This person or organization "determines coverage for all levels of care" related to Mental Health Services. Id. at 017. The Plan encourages the policyholders to contact their Mental Health/Substance Use Disorder Designee "for referrals to providers and coordination of care." Id.

         United apparently designated United Behavioral Health ("UBH") as its Mental Health/Substance Use Disorder Designee. Ex. A at 017; Ex. B at 146, 1081. UBH made coverage decisions for Plaintiff in this case, determining the appropriate level of care. See, e.g., Ex. B at 146-47, 1081-82. In making such decisions, UBH informed Plaintiff that it applied its own internal guidelines ("UBH Guidelines") to determine whether the level of care was "medically necessary." Id. at 146, 1081. The UBH Guidelines provide that in order for residential treatment to be provided any one of the following criteria must be met by the insured: (1) the person must be "experiencing a disturbance in mood, affect or cognition resulting in behavior that cannot be safely managed in a less restrictive setting"; (2) "[t]here is an imminent risk that severe, multiple and/or complex pychosocial stressors will produce significant enough distress or impairment in psychological, social, occupational/educational, or other important areas of functioning to undermine treatment in a lower level of care"; or (3) the person "has a co-occurring medical disorder or substance use disorder which complicates treatment of the presenting mental health condition to the extent that treatment in a Residential Treatment Center is necessary." Id. at 1038. If one of the three criteria is met, then the insured must also meet seven other criteria for residential treatment to be necessary: (1) certain requirements for care must be met within 48 hours of admissions, (2) the person must not be at imminent risk of serious harm to self or others, (3) required psychiatric evaluations and consultations must occur at least twice per week, (4) the facility must have available all general medical services, (5) there must be collaboration to update the treatment plan so that the continued treatment "is required to prevent acute deterioration or exacerbation of the" person's current condition, (6) there must be collaboration to update a discharge plan, and (7) certain requirements exist for the discharge plan. Id. at 1038-1040.

         B. Medical History of Plaintiff

         Plaintiff is a nineteen-year-old woman who stated that her eating disorder began in sixth grade and that she had been diagnosed with Anorexia Nervosa. Ex. B at 667. Her family has a history of mental illness. Id. at 668, 1132. Various intake assessments for Avalon Hills Treatment Center ("Avalon Hills") detail Plaintiff's long history battling the eating disorder.[2] See, e.g., id. at 667-670. Plaintiff's disorder "took the form of severe restriction and overexercise, " she was a competitive athlete, excellent student and described herself as "very 'competitive and perfectionistic.'" Id. at 667. However, "socially [E.R.] has had very few close friends." Id. at 687. In 2009, at the age of twelve, Plaintiff's mother noticed that Plaintiff was restricting her caloric intake and by July of 2009 Plaintiff weighed just 75 pounds. Id. at 685. Plaintiff began the Maudsley family-based treatment program and some meals would take up to six hours to complete. Id. at 549.

         Between April and June 2011, Plaintiff participated in the intensive outpatient program ("IOP") at the Renfrew Center for three days per week. Ex. B at 685-86. Renfrew determined she was not making enough progress after three months of treatment as an IOP and referred her to its day program. Id. This surprised Plaintiff and after an outburst, in which she threw a phone at someone, she was informed she was no longer welcome at the facility. Id. She was subsequently admitted to Silver Hill Hospital in Connecticut for a one week period. Id. at 686. Upon discharge, Plaintiff worked with an outpatient therapist but her weight dropped again. Id..

         In December 2011, she began treatment at the Wilkins Center for Eating Disorders in Greenwich, Connecticut where she was treated until May 2012. Ex. B at 686. During that time Plaintiff's mother noted that Plaintiff's behavior got "more bizarre and she became more rigid" and Plaintiff, although not allowed to play soccer or run track, found ways to go running by lying or sneaking out and would throw out food when her parents were not looking. Id. In May 2012, Plaintiff was admitted to a residential treatment program at Klarman Eating Disorder Center at McLean Hospital in Boston, but she tried to run away prior to admission and did run away after admission. Id. As a result, the hospital would no longer treat her. Id. She was subsequently admitted to the pediatric inpatient ward at Massachusetts General Hospital in Boston where she continued to hide food and hold urine to manipulate her weight. Id. She was placed on 24-hour supervision. Id.

         Upon discharge from Massachusetts General Hospital, Plaintiff was admitted to New York Presbyterian Hospital for an eighteen-day stay as an inpatient. Ex. B at 686. At one point during this stay she needed a nasogastric tube placed, which she resisted, requiring that she be sedated for insertion. Id. Once she reached 94 pounds, she was discharged and continued treatment at Timberline Knolls Residential Treatment Center in Illinois. Id. After five weeks of treatment, benefits were denied to her and she was discharged on July 25, 2012. Id. Plaintiff thereafter returned to treatment as an outpatient at Renfrew Center from August 1, 2012 until September 14, 2012. Id. She returned to school, including playing soccer but was soon injured and could not play, which devastated her. Id.

         C. Plaintiff's Admission to Avalon Hills Treatment Center

         On November 14, 2012, Plaintiff was admitted to Avalon Hills in Logan, Utah for inpatient residential treatment of Anorexia Nervosa and Generalized Anxiety Disorder. Ex. B at 548, 1088-95. Upon admission, Plaintiff weighed 94.4 pounds, reached 60.5 inches in height, had a BMI of 18.13 and suffered from bradycardia (abnormally slow heart rate) and orthostatic hypotension (low blood pressure which causes dizziness). Id. at 548-49, 669. She had suffered numerous side effects of her disorder, having not grown since she was twelve years old, not yet had a menstrual cycle, and having impaired judgment and insight. Id. at 549, 668. She refused psychiatric medication, reported being sad for many days in a row, constantly worrying and not sleeping, with a history of past suicidal ideation. Id. at 668.

         The psychiatric intake treatment team at Avalon Hills recommended long term residential treatment designed specifically to treat eating disorders at that time. Ex. B at 668-70. Goals for Plaintiff and her parents were for Plaintiff to reach an initial target weight of 102 to 112 pounds, Plaintiff to be educated and challenged on allowing all foods in moderation, moved through the program maintaining goal weight, and be provided individual and group therapy. Id. at 548-49. Plaintiff's first few months in treatment were met with resistance from Plaintiff and Plaintiff continued to try and over exercise, manipulate her meal plan, or refuse medication. Id. at 654-56, 693-99.

         D. Plaintiff's Treatment and Coverage Decisions by UBH

         When Plaintiff was admitted to Avalon Hills she was not insured by United, but by another insurer, which had approved benefits for residential treatment from admission on November 14, 2012 until December 31, 2012. Doc. 32 ¶ 46. On January 7, 2013, Mark Leudde, LPC (Licensed Professional Counselor) was assigned as Plaintiff's care advocate. Ex. B at 1088. Leudde conducted an Initial Facility-Based Review on behalf of UBH. Id. UBH is the entity responsible for making benefit coverage determinations for mental health and substance abuse services provided to United policyholders. See Id. at 1085. Leudde reported in his review that Plaintiff's height was 61 inches and weight was 107 pounds, 102% of her ideal body weight. Id. at 1091. He also reported that Plaintiff restricted food intake and over exercised but did not purge, binge, or have suicidal thoughts or depression. Id. at 1091-92. He further reported that Plaintiff had family issues, suffered from anxiety and impulsivity, and had to be supervised at meals. Id. Leudde approved coverage for Plaintiff at the residential treatment level of care ("RTC") from January 1, 2013 to January 7, 2013 on an administrative basis to allow an opportunity for a medical clinician to review the clinical information. Id. at 1094.

         On January 8, 2013, after Plaintiff had returned from a five-day pass at home with her family, Ex. B at 1103, Dr. Natalie Fitzgerald, a psychologist, performed a concurrent clinical review of Plaintiff's treatment records on UBH's behalf. Ex. B at 1096-1104, 1154-63. She noted that Plaintiff had sleep issues, waking 2-3 times per week where she would exercise and/or pace around the room, id. at 1102, and that Plaintiff was going to go on another 5-day pass to spend time with her family at the end of January. Id. Case notes from January 8, 2013 also reflected that Plaintiff had "poor impulse control" and had lost weight while on a home pass with family. Id. at 1156. Plaintiff's continued RTC treatment until January 10, 2013 was approved with an estimated stay of 2.5 weeks. Id. at 1161. The approval, as noted by Dr. Fitzgerald, was "per consumer's benefit plan and LOC [level of care] guideline." Id. at 1163.

         On January 11, 2013, Dr. Natasha Bosch, LCPC performed a concurrent facility-based review. Ex. B at 1163-71. She noted that Plaintiff attempted to over exercise at times, had poor body image, was working on improving insight and judgment, and was argumentative about her meal plan at times. Id. at 1166. Dr. Bosch approved further coverage for treatment at the RTC level until January 15, 2013, but recommended that Plaintiff could be stepped down to the partial hospitalization level of care. Id. at 1168-69. A later concurrent review notes that on January 11, Plaintiff was within weight range, her meal plan was continuously being decreased, and Avalon Hills was trying to find her maintenance weight. Id. at 1176. She was able to stick to a meal plan but only in a structured setting, had a negative body image, and panicked at swimming with male peers. Id. It further noted that on January 11, Plaintiff had an anxious mood and was over exercising due to anxiety about returning home. Id.

         On January 15, 2013, Dr. Fitzgerald conducted a concurrent facility-based review. Ex. B at 1179-87. She noted that Plaintiff was "highly anxious, but" has an "increasingly brighter affect" and that her "anxiety has decreased." Id. at 1182. She also noted, consistent with the prior reviews, that the barrier to discharge was that Plaintiff's symptoms were not yet manageable. Id. at 1183. The review stated that Plaintiff was scheduled to return on a home pass for a week in the end of January, and if she did well would be stepped down to partial hospitalization. Id. However, Plaintiff was doing a lot of over exercising with anxiety about returning home. Id. at 1184. The notes repeated the same concerns from the prior concurrent facility-based review by Dr. Bosch that Plaintiff was within weight range and trying to find a maintenance weight, but struggling to eat the required amount of food outside of a structured environment. Id. Coverage was approved until January 18, 2013. Id. at 1186.

         On January 18, 2013, Dr. Fitzgerald performed another concurrent facility-based review. Ex. B at 1188-96. Avalon Hills' Weekly Treatment notes reflected that on January 17, 2013, Plaintiff was making progress on primary treatment goals, beginning to have more freedom with meal planning, which came with increased anxiety, and that her over exercise behaviors were decreasing and awareness improved. Id. at 721. The notes reflected that the plan was to "[d]ecrease structure" and monitor slowly and closely. Id. Plaintiff was also observed under plating and closely watching others, body checking, over exercising (though she showed more awareness about these movements), and avoiding challenging foods. Id. at 721-23. Avalon Hills' Psychiatrist Progress Notes from January 17, 2013 reflected that Plaintiff failed to recognize her over exercising behaviors, such as doing cartwheels, standing, shaking her leg, and squeezing inner thighs. Id. at 675. In Dr. Fitzgerald's review, she noted that Plaintiff's mood was low, Plaintiff's home pass had been postponed due to her behavior, and Plaintiff had poor insight into her over exercising. Id. at 1190, 1192. Plaintiff was still orthostatic. Id. at 1190. The review notes also stated that a dietician was working with Plaintiff and Plaintiff was choosing her own foods and keeping a log for over exercising, which had been decreasing, but the log recently did not match a staff report. Id. at 1192. Coverage was approved until January 22, 2013. Id. at 1195, 1202.

         On January 22, 2013, Dr. Fitzgerald performed another concurrent facility-based review. Ex. B at 1197-1206. She noted that Plaintiff's anxiety had increased because of the home pass's cancellation and Plaintiff was not sleeping well. Id. at 1200. The review also reflected that Plaintiff was within her weight range, with her weight trending down as the dietician tried to find a maintenance weight and caloric intake for Plaintiff, and Plaintiff had made progress on eating desserts. Id. at 1202. However, Plaintiff had a rock fall out of her pocket on January 21, 2013 when she stood for vitals and was still having over exercising behaviors. Id. Avalon Hills' Nursing Progress Notes reflected that Plaintiff referred to it as her "worry rock, " she wanted to keep it, and admitted she was using it to try to manipulate her weight. Id. at 639. Coverage was approved until January 24, 2013. Id. at 1205.

         Plaintiff was able to go skiing for her birthday on January 24, 2013. Ex. B at 1060-61. She did well in the morning, but in the afternoon of her birthday she was pushing herself and boundaries and getting away from the group. Id. On the same day, Dr. Fitzgerald performed a concurrent facility-based review. Ex. B at 1116-25. The review reflected that Plaintiff was anxious about being unable to go home and processing putting the rock in her pocket. Id. at 1118. Avalon Hills' Weekly Treatment notes remarked that Plaintiff had a difficult week and, referred to the rock incident, noting that she had been trying to manipulate her weigh-in out of fear of having lost weight and being put on a higher meal plan. Id. at 729. Avalon Hills' Nursing Progress Notes also reflected that Plaintiff was called out for certain behaviors at meals during the week. Id. at 637. Plaintiff's weight had decreased to 105 pounds, 100% of her ideal body weight. Id. at 1117. Coverage was approved until January 28, 2013. Id. at 1122. Dr. Fitzgerald noted that the peer-to-peer review was postponed because they were determining an alternative treatment option and whether Plaintiff could stay with other family members while the family addresses eating behaviors in the home. Id. at 1124.

         On January 28, 2013, Dr. Fitzgerald conducted a final concurrent facility-based review. Ex. B at 1125-34. She noted that Plaintiff's weight was up to 106, id. at 1127, that Plaintiff was still anxious but seeing improvements and sleeping okay, id. at 1128. The review also reflected that on January 24, 2013, Plaintiff was trying to under measure fluids with meals, had been body checking in reflective surfaces, picking out cashews from mixed nuts thinking they have higher fat, and had been struggling with regular over exercise urges. Id. at 1131. However, the review noted that Avalon Hills felt Plaintiff was turning the corner mentally from contemplative to preparation. Id. The review concluded that the case would be sent for peer review as Plaintiff was not meeting the medically necessary criteria. Id. at 1133.

         On January 29, 2013, Dr. Lee Becker, a Medical Director for UBH, conducted a peer-to-peer review of Plaintiff's treatment, in part through a conversation with Dr. Sara Boghosian of Avalon Hills. Ex. B at 1135-37. In notes regarding the call and decision, Dr. Becker described Plaintiff's history at the facility in detail, noting that she tried to weigh in with a rock in the prior week but was "now more ready for change, " and that Plaintiff had a "cognitive understanding of the eating disorder but" had not "seen her over exercising as a problem." Id. at 1136. Plaintiff's family had initially resisted the treatment plan, but there had been improvements with the facility holding the line with Plaintiff and the family was learning from the facility. Id. He noted that Plaintiff had gained approximately 15 pounds with treatment, was highly monitored, still had orthostatic vital sign changes about 50% of the time, and still had urges to restrict as a reaction to negative feedback from others. Id. Plaintiff also had a visit with her mother in the coming week and if it went well, Dr. Boghosian indicated they would consider stepping Plaintiff down to partial hospitalization, which the facility has available. Id.

         Dr. Boghosian's notes for the peer-to-peer review with Dr. Becker reflected that she informed Dr. Becker of concerns about Plaintiff's frequent urges to restrict food intake and over exercise and Plaintiff's own poor mental image of herself as needing to tone up despite already having good muscle tone. Id. at 823. Plaintiff's weight was down 1.6 pounds that day, likely in response to feedback that her weight had slightly trended up and Dr. Boghosian believed that Plaintiff would be unable to maintain her weight with less structure. Id. Dr. Boghosian remarked that Plaintiff continued to articulate some ambivalence toward recovery, usually when having a negative body image or conflict within the group, and was often more focused on going home than recovery. Id. Dr. Boghosian stated that generalized anxiety preceded and served to maintain Plaintiff's eating disorder at times, and that Plaintiff refused medications for the disorder. Id. She also noted the problems with Plaintiff's family and that Renfrew, the only available step down program near Plaintiff's home, was unwilling to treat Plaintiff due to her past behavior. Id. at 824. Dr. Boghosian considered Plaintiff to soon be fit for a partial hospitalization program, but remarked that Renfrew would likely not take Plaintiff back and doing such a program at Avalon Hills may be better for her when she is ready. Id.

         Based on the above information and a review of Plaintiff's records, Dr. Becker determined that benefit coverage should be denied for January 28, 2013 forward. He concluded that Plaintiff was (1) more willing to work on joint recovery goals, (2) had very good weight gain, (3) improved in medical concerns, and (4) her recovery was not complicated by ongoing medical or other conditions requiring the intensity of structure and monitoring at the residential treatment center. Ex. B at 1136-37. Dr. Becker remarked that treatment could continue in a less intensive setting, which would initially be approved. Id. at 1137. Dr. Boghosian's call notes reflect that Dr. Becker concluded that Plaintiff "does not meet the UBH criteria (not APA) ...

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