United States District Court, D. Massachusetts
DAVID COTTEN, JAMES ROBINSON, and CAROLYN CAIN, individually and on behalf of himself and all others similarly situated
BLUE CROSS AND BLUE SHIELD OF MASSACHUSETTS HMO BLUE, INC. and BLUE CROSS AND BLUE SHIELD OF MASSACHUSETTS, INC.
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO
RICHARD G. STEARNS UNITED STATES DISTRICT JUDGE.
Cotten, James Robinson, and Carolyn Cain are plaintiffs in
this putative class action brought against Blue Cross and
Blue Shield of Massachusetts HMO Blue, Inc. and Blue Cross
and Blue Shield of Massachusetts, Inc. (collectively BCBS).
Plaintiffs allege that BCBS improperly denied claims for the
costs of treating their children's mental health issues
in wilderness therapy programs. The Second Amended Complaint
sets out three claims: plan enforcement under the Employee
Retirement Income Security Act of 1974 (ERISA) (Count I),
breach of protections under the Mental Health Parity and
Addiction Equity Act (Count II), and breach of fiduciary duty
under ERISA and the Parity Act (Count III). BCBS moves to
dismiss Counts I and III. For the reasons to be explained,
BCBS's motion to dismiss Counts I and III will be
facts, viewed in the light most favorable to plaintiffs as
the nonmoving party, are as follows. BCBS administered
employment- sponsored health insurance plans for plaintiffs
and their three children. The children have mental health and
substance abuse issues. On the advice of mental health
professionals, plaintiffs enrolled their children in
wilderness therapy programs. They sought but were denied
coverage from BCBS. The appeal of the denial was ultimately
disallowed. BCBS explained 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.
SAC ¶¶ 27, 40, 54. BCBS did not, however, question
the medical necessity of the treatment or the children's
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). Two basic principles guide the court's analysis.
“First, the tenet that a court must accept as true all
of the allegations contained in a complaint is inapplicable
to legal conclusions.” Iqbal, 556 U.S. at 678.
“Second, only a complaint that states a plausible claim
for relief survives a motion to dismiss.” Id.
at 679. A claim is facially plausible if its factual content
“allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Id. at 678. “If the factual allegations in the
complaint are too meager, vague, or conclusory to remove the
possibility of relief from the realm of mere conjecture, the
complaint is open to dismissal.” S.E.C. v.
Tambone, 597 F.3d 436, 442 (1st Cir. 2010).
provides a private right of action for a participant
“to recover benefits due under the terms of his plan,
to enforce his rights under the terms of the plan, or to
clarify his rights to future benefits under the terms of the
plan.” 29 U.S.C. § 1132(a)(1)(B). Plaintiffs argue
that their children's wilderness therapy is covered under
“a correct reading of the plans' language, using
the applicable rules of construction.” Opp'n (Dkt #
96) at 1. They also argue that the court must
“[c]onstrue all plan ambiguities against BCBS and in
favor of coverage.” Id. at 6; see Hughes
v. Boston Mut. Life Ins. Co., 26 F.3d 264, 268 (1st Cir.
1994) (“[I]n keeping with the rule of contra
proferentem, ambiguous terms should be strictly
construed against the insurer.”).
the plaintiffs' recitation of the rules of construction
is sound, their reading of the plans is not. The exclusionary
language cited by BCBS is unambiguous: it specifically
disclaims coverage for “residential or other care that
is custodial care, ” including “services
that are performed in educational, vocational, or
recreational settings; and ‘outward bound-type,'
‘wilderness,' ‘camp,' or
‘ranch' programs.” SAC ¶¶ 27, 40,
Plaintiffs contend, however, that the wilderness therapy
programs do not amount to “custodial care” in the
sense that “custodial” implies a confined,
prison-like setting where a “patient is not progressing
but nevertheless requires some sort of medical
intervention.” Opp'n (DKt # 96) at 11.
“Custodial care, ” however, has a broader
dictionary meaning of “relating to, providing, or being
protective care or services for basic needs.”
https://www.merriam-webster.com/dictionary/custodial. As the
plans make clear, this broader meaning is the one intended.
The plans define “custodial care” as, among other
things, “[c]are that is given primarily by
medically-trained personnel for a member who shows
no significant improvement response despite extended or
repeated treatment.” SAC, Exs. A at 11, B at 9, C at
10. This describes the three children's regimens: they
were each treated in a wilderness program by mental health
professionals after other therapies failed. SAC ¶¶
17, 20-21, 31, 33, 45, 47. BCBS's denial of coverage
under the plans was therefore proper. See Vorpahl v.
Harvard Pilgrim Health Ins. Co., 2018 WL 3518511, at *2
(D. Mass. 2018) (“The text of the exclusion does
unambiguously apply to the services provided by [the Outdoor
Youth Treatment program] Red Cliff.”); Roy C. v.
Aetna Life Ins. Co., 2018 WL 4511972, at *2 (D. Utah
2018) (“[T]he Plan at issue in this case expressly and
clearly excludes from coverage ‘[t]reatment in
wilderness programs or similar programs' . . ., and
therefore, Plaintiffs' claim for benefits for treatment
at Open Sky Wilderness Therapy is expressly and clearly
excluded from coverage.”).
authorizes a plan participant to bring an action “to
enjoin any act or practice which violates any provision of
this subchapter or the terms of the plan, or . . . to obtain
other appropriate equitable relief . . . to redress such
violations or . . . to enforce any provisions of this
subchapter or the terms of the plan.” 29 U.S.C. §
1132(a)(3). Plaintiffs allege that BCBS breached its
fiduciary duty under ERISA and the Parity Act “by
failing to act in accordance with the documents and
instruments governing plaintiffs' health benefit
plans.” SAC ¶ 146. BCBS asserts that this claim
fails as a matter of law on three grounds.
BCBS argues that the section 1132(a)(3) claim is duplicative
because adequate relief is available under section
1132(a)(1)(B) (Counts I and II). BCBS relies on Varity
Corp. v. Howe, in which the Supreme Court ruled that
section 1132(a)(3) is “a safety net, offering
appropriate equitable relief for injuries caused by
violations that §  does not elsewhere
adequately remedy.” 516 U.S. 489, 512 (1996)
(emphasis added); see also Id. at 515
(“[W]here Congress elsewhere provided adequate relief
for a beneficiary's injury, there will likely be no need
for further equitable relief, in which case such relief
normally would not be ‘appropriate.'”). In
the wake of Varity, the First Circuit has noted that
“federal courts have uniformly concluded that, if a
plaintiff can pursue benefits under the plan pursuant to
Section a(1), there is an adequate remedy under the plan
which bars a further remedy under Section a(3).”
LaRocca v. Borden, Inc., 276 F.3d 22, 28 (1st Cir.
2002); see also Shaffer v. Foster-Miller, Inc., 650
F.Supp.2d 124, 127 (D. Mass. 2009) (“[T]he First
Circuit has consistently held that the availability of
adequate relief under section 1132(a)(1)(B) to recover
benefits due under the terms of a plan bars a separate claim
for breach of fiduciary duty under section 1132(a)(3) as a
matter of law.”); Kourinos v. Interstate Brands
Corp., 324 F.Supp.2d 105, 107 (D. Me. 2004)
(“First Circuit caselaw is clear that equitable relief
under section 1132(a)(3) is inappropriate when a party is
entitled to pursue plan benefits or enforce plan rights under
section 1132(a)(1)(B).”); Turner v. Fallon Cmty.
Health Plan, Inc., 127 F.3d 196, 200 ...