United States District Court, D. Connecticut
RULING ON DEFENDANT'S AND PLAINTIFF'S CROSS
MOTIONS FOR SUMMARY JUDGMENT
Charles S. Haight, Jr. Senior United States District Judge.
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.
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
Doc. 34 ¶ 4.
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.
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.
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.
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
Medical History of 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. 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.
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..
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
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
Plaintiff's Admission to Avalon Hills Treatment
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
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.
Plaintiff's Treatment and Coverage Decisions by
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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) ...