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Doe v. Harvard Pilgrim Health Care, Inc.

United States District Court, D. Massachusetts

August 6, 2019

JANE DOE, Plaintiff,


          Denise J. Casper United States District Judge

         I. Introduction

         Plaintiff Jane Doe (“Jane”) has filed this lawsuit against Defendants Harvard Pilgrim Health Care, Inc., and the Harvard Pilgrim PPO Plan Massachusetts, Group Policy Number 0588660000 (collectively “HPHC”) under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1132(a)(1)(B), challenging HPHC's partial denial of health insurance benefits for residential mental health treatment. D. 1. This Court previously denied Jane's motion for summary judgment and allowed HPHC's cross-motion on her claims under the HPHC health insurance plan (the “Plan”) based upon the administrative record as of March 12, 2013. Doe v. Harvard Pilgrim Health Care, Inc., No. 15-cv-10672-DJC, 2017 WL 4540961 (D. Mass. Oct. 11, 2017) (“Doe I”). The First Circuit reversed in part, remanded in part and vacated Doe I, holding that the administrative record for judicial review included documents considered as part of HPHC's review of Jane's claim after the institution of this lawsuit and concluding in a denial of benefits on February 26, 2016 (the “post-filing review”). See Doe v. Harvard Pilgrim Health Care, Inc., 904 F.3d 1 (1st Cir. 2018) (“Doe II”). The Court now considers whether Jane's residential treatment, as opposed to treatment in other settings, during her first admission after February 12, 2013 was medically necessary in view of the administrative record as of February 26, 2016. For the reasons explained below, the Court concludes that Jane has not met her burden to show by a preponderance of the evidence that she was entitled to coverage of residential treatment during the period of February 13, 2013 through June 18, 2013 under the Plan. The Court, therefore, ALLOWS HPHC's renewed motion for summary judgment, D. 113, and DENIES Doe's motion for summary judgment and attorney's fees and costs, D. 104.

         II. Prior Rulings from the District Court and First Circuit

         On October 11, 2017, this Court concluded that Jane's residential treatment at the Austen Riggs Center (“Riggs”) was not medically necessary under the Plan after February 12, 2013 where Jane sought coverage for the full period of her first admission, from January 17, 2013 through June 18, 2013. Doe I, 2017 WL 4540961, at *11-13. The Court reviewed Jane's medical records and other documents up to and including March 12, 2013, when the Independent Medical Expert Consulting Services, Inc.'s (“IMEDECS”) expert reviewer upheld HPHC's denial of coverage for Jane's treatment as part of an independent external review initiated by the Massachusetts Department of Public Health's Office of Patient Protection (“OPP”). Id. at *10-11 (accepting “the March 12, 2013 OPP decision as the ‘temporal cut off point' for the administrative record”) (citations omitted). The Court also denied Jane's motion to expand the scope of the administrative record to include medical records and opinions that post-dated the March 12, 2013 decision and which HPHC had considered as part of the post-filing review culminating in a denial of Jane's claim on February 26, 2016. Id. at *9.

         On September 6, 2018, the First Circuit held, in relevant part here, that “the administrative record for purposes of reviewing the benefits decision in this case includes the documents submitted or generated as part of the post-filing review process as concluded on February 26, 2016.” Doe II, 904 F.3d at 9. The First Circuit vacated and remanded to this Court to consider whether Jane satisfied her burden to prove her treatment was medically necessary on the expanded administrative record. Id. at 11. Jane has now filed a renewed motion for summary judgment along with a request for attorney's fees and costs, D. 104, and HPHC filed a cross-motion for summary judgment, D. 113. The Court heard the parties on the pending motions and took the matters under advisement. D. 124.

         III. Standard of Review

         “Where, as here, the plan does not unambiguously provide the administrator with discretionary authority to determine benefit eligibility, the court's review of the administrator's determination is de novo.” Kamerer v. Unum Life Ins. Co. of Am., 334 F.Supp.3d 411, 420 (D. Mass. 2018) (citing Orndorf v. Paul Revere Life Ins. Co., 404 F.3d 510, 517 (1st Cir. 2005)). On summary judgment under ERISA, “the factual determination of eligibility for benefits is decided solely on the administrative record” and the “non-moving party is not entitled to the usual inferences in its favor.” Bard v. Bos. Shipping Ass'n, 471 F.3d 229, 235 (1st Cir. 2006) (quoting Orndorf, 404 F.3d at 517)). “[W]here review is based only on the administrative record before the plan administrator . . . summary judgment is simply a vehicle for deciding the issue.” Orndorf, 404 F.3d at 517.

         “In reaching its decision on the record, a district court on de novo review ‘may weigh the facts, resolve conflicts in the evidence, and draw reasonable inferences.'” Doe II, 904 F.3d at 10 (quoting Stephanie C. v. Blue Cross Blue Shield of Mass. HMO Blue, Inc., 852 F.3d 105, 111 (1st Cir. 2017) (“Stephanie II”)). “The district judge will be asking a different question as [s]he reads the evidence, not whether there is a genuine issue of material fact, ” but instead whether, as alleged here, Jane's treatment was medically necessary under the terms of the Plan. See Kearney v. Standard Ins. Co., 175 F.3d 1084, 1095 (9th Cir. 1999). The “ERISA beneficiary who claims the wrongful denial of benefits bears the burden of demonstrating, by a preponderance of the evidence, that she was in fact entitled to coverage.” Stephanie II, 852 F.3d at 112-13.

         IV. Factual Background

         Unless otherwise noted, all facts are undisputed and are drawn from the administrative record (“AR”), D. 109, and the parties' statements of fact, D. 108; D. 115; D. 117; D. 122. The Court previously recounted the facts in Doe I and will not repeat them all here, except as necessary for explaining the Court's analysis.

         During Jane's freshman year of college in 2012, she suffered from anxiety and depression and, subsequently, experienced hypomania, hallucinations and suicidal ideation. AR at 438. Jane's mental health deteriorated to the point that she was hospitalized on two occasions.[1] AR at 442. Jane's therapist, Audrey Rubin, M.D., referred Jane to Riggs, an out-of-network psychiatric residential treatment center in Stockbridge, Massachusetts. Id. Riggs admitted Jane on January 17, 2013. Id. She received treatment there until June 18, 2013 (“first admission”), when she was discharged for inpatient treatment at Berkshire Medical Center (“BMC”). AR 990. Riggs readmitted Jane on June 24, 2013; she remained there until her discharge in August 2013 (“second admission”). D. 115 ¶¶ 20, 23; D. 122 ¶¶ 20, 23.

         A. Residential Treatment at Riggs During the Relevant Time Period

         1. First Admission: January 17, 2013 through June 18, 2013

         David Flynn, M.D. conducted Jane's initial clinical assessment on January 17, 2013. AR 438-44. Jane was diagnosed with psychotic disorder NOS, mood disorder NOS and non-verbal learning disorder. AR 440. Jane denied “current suicidal ideation, intent, or plan at the time of admission.” AR 439. Her medication regimen at the time included Lamictal, Abilify and Seroquel. Id. As part of the criteria met for admission to Riggs, Dr. Flynn explained that Jane had experienced a “significant deterioration in functioning which has been unresponsive to . . . treatment at a less intensive level of care, ” AR 442; Jane possessed certain symptoms that “mitigate[d] against successful outpatient treatment, ” including suicidal behavior, self-destructive behavior, inability to live autonomously, anxiety, depression and mania/hypomania, id.; and she required support to a level that could not be accomplished in a less restrictive level of care, including psychotherapy in an integrated hospital environment and twenty-four-hour nursing observation and intervention, AR 443. Dr. Flynn, as a result, recommended Rigg's “IRP-G” treatment program, and noted Jane would undergo at least a “[s]ix week evaluation and treatment admission with longer term treatment possible.” AR 443.

         Jane initially experienced a difficult transition to residential treatment. AR 703 (reporting that Jane told nursing staff she was “having a difficult time transitioning to a ‘new place'”); AR 705 (explaining that Jane had two panic attacks shortly after her admission and describing Jane's concern that “intense” group therapy sessions may have caused “too much stimulation around her trauma issues”). As the month of January progressed, however, Jane engaged with peers at Riggs, AR 704, 706; left Riggs's campus to shop with her family, go out with friends and visited an art store, AR 704, 706, 709-10; and she also developed a close relationship with a male resident, AR 707. Although Jane appeared to be adjusting to her new environment, she experienced what her treating therapist, Sharon Krikorian, M.D., described as a “manic” episode in late January. AR 448; see AR 707. On or about January 24, 2013, Jane explained that, following a stressful phone conversation with her mother and brother, she saw “paper people coming out of the walls and dancing and then sticking knives in her ankles.” AR 448; see AR 708. When Jane described her hallucination to nursing staff, they noted that Jane stated that she was ready to be around other people after reporting the incident. AR 709. Jane told staff the next day “she was feeling better” and had made plans to go bowling with friends that evening. AR 709. Dr. Krikorian's monthly progress note for January indicates that Jane's “cognition [wa]s generally intact” and “[h]er thought process [w]as generally goal oriented, ” but that she can “quickly become overwhelmed.” AR 448. Dr. Krikorian also reported that Jane was responding “well” to an increase in her Seroquel dosage. Id.; see AR 466.

         In February 2013, Jane shopped with peers, AR 714, went “dumpster diving, ” AR 726-27, created a self-imposed art project, AR 711-12, and discussed her creative talent and the possibility of going to art school with nursing staff, AR 732. Staff noted on several occasions, however, that Jane was having a hard time with a male peer at Riggs with whom she had a romantic relationship. AR 714, 718, 722, 735. Jane also continued to experience hallucinations. Jane told nursing staff on February 10, 2013 that she “heard the voice of an older man telling her to hurt herself, ” but “was able to not give in to his words” and did not otherwise possess a suicidal “plan, means or intent.” AR 722. Jane mentioned prior to this hallucination that she struggled with family dynamics and her romantic relationship with a male peer, which she described as a “constant source of anxiety since her arrival.” Id. Nursing staff placed Jane in the PAS program, which involved moving her to a room in closer proximity to nurses and without a roommate. Id. Over the next couple days, Jane reported that “the voice was not there” and she was glad to be near the nurses. AR 722-23. She “negotiated to go out” with a friend to “buy something at Staples.” AR 723. Jane's “suicidal ideation and thoughts of cutting” were “manageable” at the time and she denied any plan or intent of self-harm or hearing any voices. AR 725.

         Jane reported another hallucination on February 25, 2013, when she approached nursing staff and stated she felt “snakes on [her] legs.” AR 733. Jane explained that, despite the hallucination, she knew she was safe and she had no intention of harming herself. Id. Later that day, she was observed interacting with peers and reported “doing better . . . than she was earlier in the day.” Id. Dr. Mintz posited that Jane's hallucinations of snakes on her body might relate to experiences of akathisia from her Seroquel prescription. AR 1046. Dr. Mintz also worried that Jane's psychotic symptoms related to a seizure disorder, which could be exacerbated by Seroquel's lowering of her seizure threshold. AR 476. By this time, Riggs had revised Jane's diagnosis from “bipolar to schizoaffective disorder” and “added hysteria and partial complex seizures to the differential, particularly given the atypical nature of [Jane's] hallucinations . . . and a dramatic quality to some of her symptomatic displays, which increased in the context of interpersonal experiences of loss or rejection.” AR 1046. On February 27, Jane told nursing staff she was “experiencing delusions around people outside of Riggs, hiding in bushes, watching her and waiting to hurt her.” AR 734-35. Dr. Krikorian's monthly progress note for February suggests that Jane's mental health may have been impacted by Jane's romantic relationship with a male peer. AR 450. Riggs nonetheless approved Jane for medication self-administration on February 28. AR 543.

         Jane did not report any hallucinations or manic episodes in March or April. See AR 452; AR 454. Jane told nursing staff in early March that she wanted to “come off all [her] meds and have a clear mind” and that she was frustrated with the community at Riggs. AR 742. Her frustration and desire to leave Riggs coincided with issues in her romantic relationship with a male peer. AR 736-37; see AR 742; AR 746; AR 751. In April, however, Jane travelled to New York to visit a male peer, who had been discharged from Riggs. AR 772. Upon her return, Jane reported feeling “good enough” and looking forward to “starting a new medication to see if this may help her be more creative and better than ‘good enough.'” AR 777. A few days later, on April 20, 2013 and in reaction to the Boston Marathon bombings, Jane told nursing staff “she wishes she could act out on her homicidal feelings like he did, but knows the consequences and would never do that.” AR 779. By April 22, 2013, Jane had resumed her routine at Riggs and was observed in common areas engaging with peers and staff. AR 782.

         Jane made a few trips home in April and May 2013. In late April, Jane went home to visit her family for a few days. Jane reported afterwards that home was “awful.” AR 785. Jane nonetheless went home again for knee surgery between May 2, 2013 and May 5, 2013. AR 790-92. She declined an offer to talk to nursing staff upon her return to Riggs, AR 792, and later explained that she thought her trip “went well, ” AR 794. Despite complaints of intense “midday sedation” in connection with a medication change and partial loss of consciousness, AR 912, Jane requested a pass to spend the week with her family from May 24, 2013 through May 28, 2013, AR 803. Jane described this visit as enjoyable despite the fact that she “fainted” which she attributed to stress. AR 968.

         Beginning in late May, Jane reported losing consciousness and fainting spells while at Riggs. AR 968-75. On June 6, 2013, Jane wandered away from Riggs and explained afterwards that she was chasing a hallucinated giraffe down the street. AR 977-78. Jane explained that her symptoms, including the hallucinations and loss of consciousness, might be related to a seizure disorder based upon her conversations with Dr. Mintz. AR 977. Dr. Mintz had identified the possibility of seizure disorders soon after Jane was admitted to Riggs, and he stressed that it was important to determine whether Jane's symptoms “have [a] neurological basis.” AR 466. Jane had the appointment for an EEG to determine whether she had a seizure disorder on June 4. See AR 974. Jane expressed concern regarding the outcome of her EEG while awaiting the results, which she hoped would confirm the seizure disorder diagnosis. AR 972. Jane explained to nursing staff that she preferred this diagnosis because of its “concrete[ness]” and because she wanted to “have a condition that is treatable.” Id.; see AR 974. According to Dr. Mintz's pharmacology notes, he believed Jane's hallucinations in June occurred “in the context of a disruption in an interpersonal relationship with a male peer.” AR 916. Around the same time, Jane's relationship with another male peer at Riggs grew “complicated” and she discussed the same with nursing staff. AR 972, 979.

         Jane's EEG did not show any seizure activity. AR 918. On June 11, Jane reported feeling “very weird, scared, and tearful” and “disappointed” after receiving the results of the EEG, which indicated that she did not have a seizure disorder. AR 983; AR 949. Jane continued to express her disappointment with the the results of her EEG over the next few days. AR 984, 986. On June 18, 2013, Jane was found lying on the floor of her room with bloody scratches on her leg. AR 989. Nursing staff found a broken razor on the sink. Id. Jane explained that she was trying to write “kill” on her leg with the razor and had experienced a frightening hallucination prior to cutting herself. Id. After staff determined that Jane was an immediate danger to herself, she was transported for inpatient psychiatric evaluation in a locked unit at BMC. AR 990. While there, physicians discontinued Jane's prescription for Geodon, and prescribed Clozaril, an antipsychotic medication. AR 1028.

         2. Second Admission: June 24, 2013 through August 2013

         Jane was discharged from BMC and returned to Riggs on June 24, 2013. AR 1045. Dr. Krikorian noted that Jane “struggle[d] with complicated and powerful feelings about family, friends, [and her] therapist that she expresses through psychotic process.” AR 1036. In a monthly progress note for June, Dr. Krikorian stated that Jane's cognition was grossly intact and she denied suicidal and homicidal ideation or intent. AR 1038. In July, Dr. Krikorian reported that Jane continued to have visual hallucinations, but was less overtly angry and did not possess suicidal ideation or intent. AR 1039. Jane told nursing staff in late July that she felt like her Clozaril prescription was “starting to show some positive results” and that she had been “waking up in a good space and having productive days with some delusions.” AR 1185. Dr. Krikorian suggested that, no earlier than August 7, 2013, Jane's psychosis and behavior could be safely managed and adequately treated at a lower level of care. AR 1246. HPHC does not dispute that Jane's residential treatment at Riggs during the second admission, between June 24, 2013 and August 7, 2013, was medically necessary.

         B. HPHC's Coverage Determinations for Jane's Residential Treatment

         HPHC agreed to cover a portion of Jane's first admission to Riggs, including the period from January 17, 2013 to February 12, 2013, and all of her second admission from June 24, 2013 to August 7, 2013. Based upon review of Jane's mental health history, medical records from Riggs, conversations with Jane's clinicians and medical opinions generated as part of the post-filing review, HPHC maintains-and Jane disputes-that residential treatment during the first admission after February 12, 2013 was not medically necessary as defined under the Plan.[2]

         1. HPHC's Initial Coverage through February 5, 2013

         At the time of Jane's treatment, HPHC contracted with United Behavioral Health (“UBH”) to manage mental health benefits and review initial coverage determinations for HPHC Plan beneficiaries. AR 89-94. HPHC utilized UBH's Optum Level of Care Guidelines (“Guidelines”) to determine whether requested mental health treatment was medically necessary and, therefore, covered under the Plan. Id. The Guidelines indicate that the Plan covers “[r]esidential services . . . delivered in a facility or a freestanding Residential Treatment Center that provides overnight mental health services to members who do not require 24-hour nursing care and monitoring ...

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