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Stephanie C. v. Blue Cross Blue Shield of Massachusetts Hmo Blue, Inc.

United States District Court, D. Massachusetts

March 29, 2015

STEPHANIE C., individually and as guardian of MILES G., Plaintiff,
v.
BLUE CROSS BLUE SHIELD OF MASSACHUSETTS HMO BLUE, INC., Defendant.

MEMORANDUM AND ORDER

DENISE J. CASPER, District Judge.

I. Introduction

Plaintiff Stephanie C. ("Stephanie") individually and as guardian of Miles G. ("Miles") ("Plaintiff") has brought this action against Defendant Blue Cross and Blue Shield of Massachusetts HMO Blue, Inc. ("BCBS") under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §1132(a)(1)(B), challenging Blue Cross's partial denial of health insurance benefits for residential mental health treatment. D. 1. BCBS and Plaintiff have both moved for summary judgment. D. 24; D. 27. For the reasons stated below, the Court ALLOWS BCBS's motion for summary judgment, D. 24, and DENIES Plaintiff' motion for summary judgment, D. 27.

II. Factual Background

Unless otherwise noted, all facts are undisputed and are drawn from the administrative record (cited hereinafter as "AR"), which the parties jointly filed. D. 23.

A. Coverage Under the Plan

Miles's father is a participant in a group health benefit plan (the "Plan") sponsored by his employer, Harmonix Music Systems, Inc. ("Harmonix"), and insured by BCBS. D. 1 ¶ 1. Miles is a beneficiary of the Plan. Id . The terms of the agreement between Harmonix and BCBS are set out in their Premium Account Agreement ("PAA"). AR at 1-9. The PAA provides that:

Blue Cross and Blue Shield is the fiduciary to whom you have granted full discretionary authority to make decisions regarding the amount, form and timing of benefits; to conduct medical necessity review; to apply utilization management; to exercise fair and impartial review of denied claims for services; and to resolve any other matter under the benefits plan which is raised by a Member or identified by Blue Cross and Blue Shield regarding entitlement to benefits as described in the Subscriber Certificates for your benefits plan. All determinations of Blue Cross and Blue Shield with respect to any matter within its assigned responsibility will be conclusive and binding on all persons unless it can be shown that the interpretation or determination was arbitrary or capricious.

AR at 2. The policy under which Miles was insured was a Preferred Blue PPO Deductible Plan, the terms of which are set out in the Preferred Blue PPO Preferred Provider Deductible Subscriber Certificate ("Subscriber Certificate"). AR at 10-123. The Subscriber Certificate provides, in part, that "[t]o receive your health plan coverage, all of your health care services and supplies must be medically necessary and appropriate for your health care needs." AR at 31 (emphasis in original). Among other things, "medically necessary" services must be "[c]linically appropriate, in terms of type, frequency, extent, site, and duration" and must be "[c]onsistent with the level of skilled services that are furnished and furnished in the least intensive type of medical care setting that is required by your medical condition." AR at 32.

With respect to mental health treatment, the Subscriber Certificate provides that the "health plan covers medically necessary services to diagnose and/or treat mental conditions." AR at 57 (emphasis in original). As such, the Plan covers acute residential treatment and other intermediate levels of mental health treatment when they are the least intensive type of setting that is required. AR at 58-59. The Subscriber Certificate provides, however, that:

No benefits are provided for: psychiatric services for a condition that is not a mental condition; residential or other care that is custodial care; and services and/or programs that are not medically necessary to treat your mental condition. Some examples of services and programs that are not covered by this health plan are: services that are performed in educational, vocational, or recreational settings; and "outward bound-type, " "wilderness, " "camp, " or "ranch" programs. These types of non-covered programs may be in residential or nonresidential settings. They may include therapeutic elements and/or clinical staff services as well as vocational, educational, problem solving, and/or recreational activities. These programs may have educational accreditation. The staff may include some licensed mental health providers who may provide some therapy. No benefits are provided for any services furnished along with one of these non-covered programs. For example, no benefits are provided for therapy and/or psychotherapy furnished along with one of these non-covered programs.

AR at 58 (emphasis in original). Moreover, no benefits are provided for a service that is "furnished along with [a] non-covered [service]." AR at 58. The Subscriber Certificate further provides that if a member stays in the health care facility after being informed by BCBS that "inpatient coverage is no longer medically necessary, " BCBS will not provide additional coverage and the member "must pay all costs for the rest of that inpatient stay." AR at 43 (emphasis omitted). In fact, the Subscriber Certificate states that, in any event, "[t]o receive coverage for inpatient services for a mental condition, you and your mental health provider must receive approval from [BCBS] as outlined in this Subscriber Certificate before you enter a general or mental hospital or substance abuse treatment facility for inpatient care." AR at 58 (emphasis omitted).

To evaluate whether residential psychiatric care is medically necessary, BCBS conducts a utilization review applying "utilization review criteria" based on medical technology assessment criteria and medical necessity guidelines. AR at 82 (emphasis omitted). During this review, BCBS's "Behavioral Health Physician Psychologist Review Unit" uses the initial review InterQual Criteria ("InterQual Criteria"). See, e.g., AR at 400. The InterQual Criteria "is a nationally-recognized criteria set which is used to assess the level of care required by each individual." Id . The InterQual Criteria provides initial review guidelines that the physician reviewers use to determine whether the patient qualifies for admission to a treatment facility and the need for different levels of inpatient treatment. AR at 438-444.

When BCBS denies a claim, the Plan provides a grievance process which allows members to request a review of the decision. AR at 88. The Plan provides that once BCBS receives the request, it "will research the case in detail" and notify the member "in writing of the decision or the outcome of the review." AR at 89. When reviewing a grievance, BCBS will look at factors including "all of the provisions of [the] health plan" and "the policies and procedures that support [the] health plan." AR at 88. Under the Plan, "[a]ll grievances are reviewed by professionals" who did not participate in BCBS's prior decisions regarding the member's coverage. AR at 89. If after BCBS's internal formal grievance process is completed the member is denied coverage because it is determined the service was not medically necessary, the member has a right to external review by a review agency under contract with the Office of Patient Protection of the Massachusetts Department of Public Health, but such external review is not required under the Plan. AR at 91-92.

B. Miles's Mental Health History

Miles's mental health issues are long-standing. AR at 403. At the age of three, Miles's behavior was unpredictable, "[h]e was aggressive toward his younger brother, clingy, fearful, and highly irritable." Id . Two months after enrollment in preschool, his teacher requested a psychiatric evaluation of Miles. Id . Miles was subsequently evaluated by Dr. Kohlenberg at Children's Hospital, who recommended a behavioral chart. Id . At age four, Miles was evaluated by the Millis school system "and was put on a home program sensory diet to try to reduce his anxiety with other children and his difficulty transitioning and relating to the other children." AR at 404. This program had limited success. Id . After being nearly expelled from another preschool for "random aggression toward other children" and for biting the school director, Miles was evaluated by Mary Bamford, an occupational therapist, and enrolled in occupational therapy services at Exeter Hospital for "sensory integration disorder." Id . Miles received these services until the age of seven, but "continued to have anxiety, low mood, impulsivity, and behavioral dysfunctions." Id.

During this period, Miles received a neuropsychological evaluation with Dr. Martha Colette, who noted Miles's "high level of anxiety." AR at 405. Miles was also evaluated by the Center for Learning and Attention Deficit Disorders and was determined not to have attention deficit disorder, but a "difficult emotional temperament." Id . Miles was also seen by two psychiatrists around this time, Dr. Gear and Dr. Burger. Id . Dr. Gear prescribed the antidepressant celexa, which was effective for two weeks but ultimately "agitated" Miles. Id . Dr. Burger indicated that "biopolar disorder may be [Miles's] diagnosis." Id.

At age seven, Miles was accepted into the Massachusetts General Hospital Study on Pediatric Bipolar Disorder where he was prescribed the "atypical antipsychotics" zyprexa and risperdal. Id . Risperdal helped to regulate Miles's mood and aggression; however, Miles ultimately had to leave the study because his medical recommendation was to increase his risperdal dose above the study's protocol. Id . By third grade, however, Miles's medication became less effective, and Miles's doctor, Dr. Vance at Seacoast Mental Health Center ("SMHC"), added a prescription for abilify. Id . In fifth grade, a prescription for an antidepressant was also added. Id . In March 2009, at the age of thirteen, Miles's aggression increased, and Dr. Gelsomini at SMHC prescribed two new medications, geodon and depakote, but Miles suffered from side effects from the geodon and could not handle the blood draws required for depakote. AR 405-406.

In 2010, Miles was in weekly mental health therapy with Scott Brown at SMHC and saw Anita Freeman, a psychiatric prescribing nurse, who also prescribed depakote. AR at 406. Miles also sought treatment at the Health and Education Services Crisis Center in Haverhill, Massachusetts. Id . The Health and Education Services Crisis Center indicated that "Asperger's [disorder] should be considered as a diagnosis" and "recommended an intensive outpatient program." Id . On August 1, 2010, at age fifteen, Miles began attending Direction Behavioral Health IOP, but his aggression continued. Id . Miles was staying in bed all day, made inappropriate sexual comments and in September of 2010 was arrested for punching his mother. Id . Miles admitted that he had not been taking his depakote. Id . In October ...


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