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Fisher v. Harvard Pilgrim Health Care of New England, Inc.

United States District Court, D. Massachusetts

May 21, 2019

ADDIE FISHER, Plaintiff,


          F. Dennis Saylor, IV United States District Judge.

         This is an action under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001 et seq.

         Plaintiff Addie Fisher contends that defendant Harvard Pilgrim Health Care of New England, Inc. (“HPHC”) failed to pay her medical benefits that she was owed under her health plan. Specifically, she challenges HPHC's decision to stop paying for residential treatment for her eating disorder on the ground that it was not medically necessary.

         The parties have filed cross-motions for summary judgment.[1] For the following reasons, HPHC's motion will be granted and Fisher's motion will be denied.

         I. Background

         A. Factual Background

         The following facts are undisputed unless noted otherwise.

         1.The Plan

         At the times relevant to this case, Addie Fisher was a covered beneficiary under an employer-provided HMO health-care plan issued by HPHC. (Def. SMF ¶ 1). HPHC contracted with United Behavioral Health (“UBH”) to make initial coverage determinations for its beneficiaries. (Id. ¶ 2; Partial Record for Judicial Review 0052). UBH operated under the brand Optum. (Record 0126).

         Fisher's plan covered only medical services that were deemed to be “Medically Necessary.” (Record 0023). The plan defined “Medically Necessary” services as follows:

[t]hose medical services which are provided to a Member for the purpose of preventing, stabilizing, diagnosing or treating an illness, injury or disease, or the symptoms thereof, in a manner that is (a) consistent with generally accepted standards of medical practice, (b) clinically appropriate in terms of type, frequency, extent, location of service and duration, (c) demonstrated through scientific evidence to be effective in improving health outcomes, (d) representative of best practices in the medical profession, and (e) not primarily for the convenience of the enrollee or physician or other health care provider.

(Record 0020).

         The plan provided that HPHC (and UBH) would “use clinical review criteria” to “evaluate whether certain services or procedures [were] Medically Necessary.” (Record 0017).

         In 2015, UBH issued a “Level of Care Guidelines” that listed “Common Criteria and Clinical Best Practices for All Levels of Care.” (Record 0319). The first section provided nine “Admission Criteria, ” two of which, criteria 1.4 and 1.8, are particularly relevant. Criterion 1.4 provided:

1.4 The member's current condition cannot be safely, efficiently, and effectively assessed and/or treated in a less intensive level of care due to acute changes in the member's signs and symptoms and/or psychosocial and environmental factors (i.e., the “why now” factors leading to admission).
1.4.1 Failure of treatment in a less intensive level of care is not a prerequisite for authorizing coverage.

(Record 0319). Criterion 1.8 provided:

1.8 There is a reasonable expectation that services will improve the member's presenting problems within a reasonable period of time.
1.8.1. Improvement of member's condition is indicated by the reduction or control of the acute signs and symptoms that necessitated treatment in a level of care.
1.8.2. Improvement in this context is measured by weighing the effectiveness of treatment against evidence that the member's signs and symptoms will deteriorate if treatment in the current level of care ends. Improvement must also be understood within the broader framework of the member's recovery, resiliency and wellbeing.

(Record 0320).

         2. Fisher's Treatment

         Fisher first received treatment for bulimia nervosa in December 2014. On December 2, 2014, she was admitted to Walden Behavioral Care, a private psychiatric hospital in Waltham, Massachusetts. (Def. SMF ¶ 7). On December 29, she started Walden's “partial hospitalization program.” (Id.). On January 14, 2015, after being discharged from the partial hospitalization program, she was approved for an intensive outpatient program, but never actually received any outpatient treatment. (Id.).

         On May 26, 2015, Fisher's mother called UBH and sought permission for her to attend the Oliver Pyatt Center, an eating-disorder treatment center in Miami, Florida. (Id. ¶ 8). Later that day, Fisher was admitted to a hospital in New Hampshire after she expressed suicidal thoughts. (Id.). She was discharged from the New Hampshire hospital on May 28 and soon thereafter began receiving treatment at the Oliver Pyatt Center in Florida. (Id.). Although Oliver Pyatt was out of UBH's network, Fisher and UBH reached a “single case agreement” to cover her residential treatment, as there were no eating-disorder treatment centers “in geo-access” of Fisher's home in New Hampshire. (Id. ¶ 8-9, Record 0098).

         Fisher's residential treatment at Oliver Pyatt ended on July 31, 2015. (Id. ¶ 11). It appears that she began receiving treatment through Oliver Pyatt's partial hospitalization program on August 1. (Record 0126). On August 3, an Oliver Pyatt representative called a UBH “Care Advocate” named Stefanie Adzema and requested that UBH approve coverage for Fisher's treatment in its partial hospitalization program. (Id. ¶ 13). Adzema conducted a “Facility Based Review” and concluded that Fisher did not appear to “meet [the] medical necessity guidelines” for a partial hospitalization program. (Record 0174). Accordingly, she referred Fisher's case to a UBH Associate Medical Director, Dr. Melinda Privette, for a “peer-to-peer review.” (Id.).

         On August 4, 2015, Dr. Privette conducted a “very difficult” peer-to-peer review that included a morning telephone interview with Fisher's treating physician, psychologist, and social worker at Oliver Pyatt. (Def. SMF ¶ 16, Record 0176). According to Dr. Privette's notes of the call, the Oliver Pyatt representatives “stated that [Fisher] needed to stay” in the partial hospitalization program because (1) she had “just reached the point of stability” and still needed to “work on self-plating meals and going on more passes;” (2) she needed “more individual therapy to work on her anxiety about eating” and “want[ed] to connect with her birth parents;” and (3) neither Fisher nor her parents would be able to drive her to an outpatient program. (Record 0179).[2]

         Dr. Privette disagreed with that assessment. In her note of the review, apparently submitted at 12:40 p.m. on August 4, she concluded that Fisher could be safely and effectively treated with intensive outpatient treatment and thus that the requested partial hospitalization program at Oliver Pyatt did “not meet” the “level of care guideline required to be followed” under the plan. (Record 0099).[3]

         That same day, Dr. Privette sent Fisher a letter informing her that “the request by [Oliver Pyatt] for authorization for Mental Health Partial Hospitalization Treatment beginning on 08/01/2015 has been denied by Optum.” (Record 0126). The letter continued:

Under the terms of our agreement with Harvard Pilgrim, services must be medically necessary and otherwise covered under the plan. It is Optum's determination that services ...

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