B. v. Premera Blue Cross, No. 1:2020cv00187 - Document 92 (D. Utah 2023)

Court Description: MEMORANDUM DECISION and Order: For Count I, the court GRANTS IN PART Plaintiffs motion and DENIES Defendants motion. The court REMANDS to Defendant for further review of Plaintiffs benefits claim consistent with this Memorandum Decis ion and Order. For Count II, the court DISMISSES IN PART and DENIES IN PART Plaintiffs motion and GRANTS IN PART and DENIES IN PART Defendants motion. The court DISMISSES Plaintiffs Parity Act claim as to inpatient hospice care for lack of standing. Summary judgment is DENIED for Plaintiffs and GRANTED for Defendant on Plaintiffs other Parity Act claims. Signed by Judge David Barlow on 11/03/2023. (kpf)

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THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH ROBERT B., individually and on behalf of C.B., a minor, v. MEMORANDUM DECISION AND ORDER REGARDING [70] PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND [85] DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PREMERA BLUE CROSS, Case No. 1:20-cv-00187-DBB-CMR Plaintiffs, Defendant. District Judge David Barlow Before the court are the parties’ cross-motions for summary judgment.1 Robert B., individually and on behalf of C.B. (collectively “Plaintiffs”), brings two claims against Defendant Premera Blue Cross (“Premera”) under the Employee Retirement Income Security Act of 1974 (“ERISA”). Plaintiffs assert Premera unlawfully denied C.B. benefits and violated the Mental Health Parity and Addiction Equity Act (“MHPAEA” or “Parity Act”).2 For the reasons below, the court grants in part, denies in part, and dismisses in part the cross-motions.3 BACKGROUND Plan Coverage and Applicable Guidelines Robert B. participates in a benefits plan under ERISA (the “Plan”).4 As Robert B.’s dependent, C.B. is also a Plan beneficiary.5 Premera is the Plan’s claims administrator.6 To 1 Pls.’ Mot. Summ. J., ECF No. 70, filed Mar. 21, 2023; Def.’s Mot. Summ. J., ECF No. 85, filed May 10, 2023. Am. Compl. ¶¶ 44–95, ECF No. 36, filed Dec. 29, 2021. 3 Having considered the parties’ arguments and applicable law, the court finds that oral argument would not materially assist the court in reaching a decision. See DUCivR 7-1(g). 4 Am. Compl. ¶ 3; Answer ¶ 3, ECF No. 56, filed Oct. 21, 2022. 5 Am. Compl. ¶ 3; Answer ¶ 3. 6 Am. Compl. ¶ 2; Answer ¶ 2. 2 1 determine whether benefits claims are medically necessary, Premera applies the “medical judgment and expertise of [m]edical [d]irectors” to “reasonably interpret the level of care covered for [the member]’s medical condition.”7 The term “medically necessary” means: Those covered services and supplies that a physician, exercising prudent clinical judgment, would provide to a patient for the purpose of preventing, evaluating, diagnosing or treating an illness, injury, disease or its symptoms, and that are: • • • In accordance with generally accepted standards of medical practice; Clinically appropriate, in terms of type, frequency, extent, site and duration, and considered effective for the patient’s illness, injury or disease; and Not primarily for the convenience of the patient, physician, or other health care provider, and not more costly than an alternative service or sequence of services at least as likely to produce equivalent therapeutic or diagnostic results as to the [patient’s] diagnosis or treatment.8 To make medical necessity determinations, Premera uses InterQual’s [Behavioral Health]: Child and Adolescent Psychiatry criteria (“InterQual Criteria”).9 Under these guidelines, residential treatment center (“RTC”) criteria are “used for a patient who has been admitted or is expected to be admitted to a psychiatric [RTC].”10 A psychiatric RTC “is a licensed residential facility that provides medical monitoring and 24-hour individualized treatment to a group of individuals.”11 Minimum programming includes a psychiatric evaluation within 24 hours of admission and thereafter weekly evaluations, daily clinical assessments, creation of a discharge plan within 24 hours, a psychosocial assessment 7 ECF No. 79-11, at 437. For ease of reference, the record cites are to the paginated ECF docket numbers. Id. at 440. 9 See id. at 244–323, 407; ECF No. 79, at 35; ECF No. 79-11, at 344. The criteria pertain to patients ages 4 through 17. ECF No. 79-11, at 245. 10 ECF No. 79-11, at 308. 11 Id. 8 2 within 48 hours of admission, a medical history and physical exam, and therapy (individual, group, or family) at least three times a week.12 For a “[s]erious emotional disturbance[,]”13 a patient must exhibit at least one severe functional impairment, at least one support system aggravator, symptoms that are persistent or repetitive over at least 6 months, and at least one symptom showing an inability to be managed safely within the community.14 For continued care at an RTC, defined as care after 15 days, a patient with a serious emotional disturbance must show the following: at least one aggravator within the past week,15 completion of required interventions within the past week,16 and at least one qualifying symptom17 within the last week.18 Pertinent Medical History After moving to a new town in the seventh grade, C.B. started to struggle with depression.19 When C.B.’s20 family moved back to their hometown, C.B.’s anxiety “increased 12 Id. Id. at 262. “Serious emotional disturbance refers to an individual who is under the age of 18 and has a diagnosed psychiatric disorder within the last 12 months that substantially limits or interferes with his/her ability to achieve or maintain developmentally appropriate adaptive, behavioral, cognitive, communication, or social skills.” Id. at 297– 98. 14 Id. at 262. 15 ECF No. 79-11, at 265 (i.e., interpersonal conflict that presents as hostile or intimidating/persistently argumentative/poor or intrusive boundaries/threatening/unable to establish positive peer or adult relationships). 16 Id. (i.e., symptom management plan, daily clinical assessment, individual/family therapy three times a week, individual/family psychoeducation, weekly psychiatric evaluation, and school/vocational program). 17 Id. (i.e., aggressive/assaultive behavior, angry outbursts, depersonalization, property destruction, easily frustrated/poor impulse control, homicidal ideation without intent, hypervigilance/paranoia, nonsuicidal self-injury, or persistent rule violations, medication-resistant with anxiety/depressive disorder/obsessive disorder/psychosis, psychomotor agitation, runaway, sexually inappropriate, or suicidal ideation without intent). 18 Id. 19 ECF No. 79-3, at 172. 20 The court uses female pronouns to refer to C.B. in accord with her preferences. See Pls.’ Mot. Summ. J. 3 n.2. However, the record cited herein predominately uses male with some female pronouns, resulting in both genders and gendered pronouns being used or quoted throughout. 13 3 significantly.”21 In high school, C.B. avoided friends and had panic attacks.22 C.B. also began having thoughts about self-harm.23 As C.B.’s mother stated: “[H]is fuse became very, very short. He was controlling about his computer time and got angry with anyone who wanted to use [it]. Whenever I intervened, he became very upset and always tried to rationalize his behavior.”24 C.B.’s “depression and anxiety increased rapidly” and C.B. was removed from school.25 C.B. transferred to an alternative school and attended class two hours each day, showing “modest success.”26 But C.B. continued to display behavioral problems.27 Sometimes during school commutes, C.B. “would clench his fists and say he was going to jump out of the car.”28 C.B. once tried to run away from a therapist’s office.29 C.B.’s parents reported “daily kid drama among all the siblings. Everyone had to walk on eggshells around [C.B.] at all times due to [C.B.’s] anger and eruptions.”30 C.B.’s mother was “frightened a couple of times, by the scary looks [C.B.] would give [her].”31 A psychiatrist noted how C.B. self-harmed by head-banging.32 About a year before entering Elevations RTC (“Elevations”), C.B. met regularly with a therapist and a psychiatrist.33 Two months before entering the facility, C.B. started using a 21 ECF No. 79-3, at 172. Id. 23 Id. 24 Id. 25 Id. at 176. 26 ECF No. 79-3, at 176. 27 Id. at 172. 28 Id. The psychiatrist who evaluated C.B. at her admission to Seven Stars reported that C.B. “tried to jump out of the car 2 months ago. He will hold the car door like he’s going to jump out when going to school, and parents are concerned that he might try this again.” Id. at 197. 29 Id. at 197. 30 Id. at 175. 31 ECF No. 79-3, at 175 (second alteration in original). 32 Id. at 201. 33 Id. at 177. 22 4 computer for sixteen to eighteen hours a day and paused only to eat or sleep.34 C.B.’s mother “stopped enforcing the rules . . . due to concerns about every one’s [sic] safety.”35 Admission to the Seven Stars Program at Elevations C.B.’s parents enrolled C.B. at Seven Stars on June 11, 2018.36 Seven Stars is a program within the larger Elevations structure for teens facing neurodevelopmental disorders.37 Upon C.B.’s admission, psychiatrist L. Kristin Shadow (“Dr. Shadow”) conducted an initial evaluation. Dr. Shadow noted C.B. had existing diagnoses for depression, anxiety, and autism spectrum disorder (“ASD”).38 Notably, C.B.’s parents and C.B. gave different reasons for attending Seven Stars. C.B. stated: “I don’t know what is wrong. My parents can easily answer that question. I thought that if it got like this I could get local help. I felt like I was doing better at home. I felt like I was getting enough school work as I could.”39 C.B. told Dr. Shadow that the problems started after being told about Seven Stars: C.B. “got really angry and sad” and was “not sure how [to] handle being away from . . . family for 2–2.5 months.”40 Yet her parents explained that C.B. needed help for “[a]nxiety attacks, MDD [major depressive disorder], not progressing in school because [lack of] focus, suicidal thoughts, complete isolation with 12+ hr per day of computer time, [and] not hanging out with friends.”41 34 Id. at 172. Id. at 197. 36 ECF No. 79-3, at 171–72, 911. 37 Decl. of Gwendolyn C. Payton (“Payton Decl.”) ¶ 2 & Ex. 1, ECF No. 67-1, at 2. Seven Stars “provides a comprehensive therapeutic approach along with the experiential therapy of a wilderness or adventure therapy program.” Ex. 1, at 2. The therapeutic model “combines residential treatment, classroom academics, outdoor adventure and experiential therapy, social skills development, life skill building, community activities, academic development, and behavioral shaping.” Id. 38 ECF No. 79-3, at 197. 39 Id. at 196. 40 Id. at 197. 41 Id. at 196. 35 5 Dr. Shadow recorded several mental-health symptoms for C.B.: hopelessness, helplessness, depressed mood, decreased interest, worthlessness, thoughts of death, irritability, general worry/anxiety/stress more than half of the time, decreased concentration, separation anxiety, and suspiciousness.42 As to risk of suicide and homicide, Dr. Shadow noted symptoms for suicidal ideation and a history of suicide attempts and threatening behavior.43 Additionally, Dr. Shadow documented trauma symptoms: increased anger, emotional detachment, psychological distress, hypervigilance, and self-harm.44 She also identified ASD symptoms.45 C.B. received a diagnosis for MDD, persistent depressive disorder, generalized anxiety disorder, chronic post-traumatic stress disorder, separation anxiety disorder of childhood, and autistic disorder.46 Dr. Shadow listed the following reasons for treatment at Seven Stars: a high potential for psychiatric hospitalization but not needing 24-hour nursing care, recent suicide attempts, suicidal ideation with plan and intent, self-harm behavior, inadequate community support resources, an inability to care for physical needs, and a need for 24-hour supervision.47 Dr. Shadow recommended C.B. stay at Seven Stars for 3–6 months.48 Care at Seven Stars C.B. remained at Seven Stars from June 11 to September 30, 2018.49 Two days after her admission, Seven Stars created a comprehensive treatment plan. The “Master Problem List” Id. at 200. The mental status exam revealed “thoughts of AWOL [absent without leave], no plans, but positive intent[.]” Id. at 203. 43 ECF No. 79-3, at 200. The psychiatrist noted C.B. “self-harms by head banging” and had “passive thoughts of self[-]harm so he can go to the hospital so his parents would come[.]” Id. at 201, 203. 44 Id. at 200. 45 Id. at 200–01 (i.e., odd non-verbal behavior, impaired social reciprocity, inflexible-nonfunctional routines-rituals, repetitive motor movements, and intense sensory interests and problems). 46 Id. at 203–04. 47 Id. at 196. 48 ECF No. 79-3, at 205. 49 Id. at 911. 42 6 identified three disorders: MDD, generalized anxiety disorder, and ASD.50 Seven Stars listed the following planned interventions: daily academic classes and weekly equine therapy, group therapy, activity for daily living, life skill group, milieu group, group recreational therapy, family therapy, and individual therapy.51 As part of the Seven Stars program, C.B. often left the campus on therapeutic visits.52 C.B. went on group camping trips including one that lasted from July 6 through about July 10, 2018.53 Dr. Shadow made periodic psychiatric progress entries. On June 21, Dr. Shadow reported C.B. having no suicidal or homicidal ideations and “[n]o current thoughts of [self-harm], . . . no plans, no intent, . . . [and] never self-harmed[.]”54 Still, she also noted C.B. had self-harm thoughts “once or twice this past week, . . . say[ing] that he is not sure he can contract for safety.”55 Dr. Shadow also documented that C.B. “has talked to others in the past . . . before self[-]harm, [and] he is having fewer thoughts of self-harm than he used to[.]”56 In addition, the physician noted C.B. had no thoughts or plans of running away despite past thoughts of doing so.57 Five days later, Dr. Shadow documented no suicidal or homicidal ideations, no current selfharm thoughts despite “some passive [suicidal ideations] in the past[,]” and no thoughts of running away.58 The progress notes for July 3 used the same language.59 50 Id. at 1291. Id. at 1293–95. 52 See id. at 1227 (July 3–4, 2018); id. at 1090–93 (Aug. 8–10, 2018); id. at 977–79, 985–86 (Sept. 13–16, 2018). 53 See ECF No. 79-3, at 1207 (left on camping trip morning of July 6, 2018); id. at 1204 (camping the morning of July 11, 2018); id. at 1192 (“[C.B.] had a good time on the camping trip . . . .”). But see id. at 1202 (noting at therapy on July 10, 2018 that “[w]e discussed the camping trip that [C.B.] recently returned from”). 54 Id. at 1262. 55 Id. 56 Id. 57 Id. 58 ECF No. 79-3, at 1249. 59 Id. at 1216. 51 7 C.B. also attended individual and family therapy sessions. Therapy and daily tracking notes for July 10, 2018 reflected that C.B. had no thoughts of hurting self or others, and was able to engage in scheduled programming and complete daily tasks, but “seem[ed] to struggle midday emotionally.”60 The therapist noted that C.B. began “to focus on when he c[ould] leave Seven Stars and had difficulty redirecting.”61 Starting with the July 13 psychiatric progress notes, Dr. Shadow reported C.B. had no suicidal or homicidal ideations, thoughts of self-harm, or thoughts of escape.62 On August 16, 2018, Alison M. LaFollette (“Dr. LaFollette”), a licensed clinical psychologist, evaluated C.B. to “provide a more detailed conceptualization of his strengths, weaknesses, and psychological functioning.”63 Dr. LaFollette noted C.B. “did not describe having experienced hallucinations, delusions, or otherwise unusual thoughts”; “denied having experienced symptoms suggestive of a hypomanic or manic mood state”; “denied a history of self-harm or suicide attempts”; and “denied any continuing thoughts of suicide.”64 At no point did Elevations therapists indicate C.B. had current thoughts of hurting self or others while at Seven Stars.65 But C.B. “reported monthly thoughts of suicidal ideation because ‘things were sad 60 Id. at 1199–202. Id. at 1202. 62 See id. at 1189 (July 13, 2018); id. at 1269 (July 20, 2018); id. at 1132 (July 31, 2018); id. at 1075 (Aug. 16, 2018); id. at 1047 (Aug. 26, 2018); id. at 1149 (Aug. 27, 2018). 63 ECF No. 79-3, at 172. 64 Id. at 177. 65 See Individual Therapy Notes: id. at 1282 (June 18, 2018); id. at 1254 (June 25, 2018); id. at 1228 (July 2, 2018); id. at 1201 (July 10, 2018); id. at 1195 (July 12, 2018); id. at 1180 (July 17, 2018); id. at 1164 (July 23, 2018); id. at 1141 (July 30, 2018); id. at 1107 (Aug. 6, 2018); id. at 1083 (Aug. 13, 2018); id. at 1059 (Aug. 21, 2018); id. at 1039 (Aug. 28, 2018); id. at 1013 (Sept. 5, 2018); id. at 1000 (Sept. 10, 2018); id. at 975 (Sept. 17, 2018); id. at 952 (Sept. 24, 2018). See Family Therapy Notes: id. at 1280 (June 18, 2018); id. at 1256 (June 25, 2018); id. at 1229 (July 2, 2018); id. at 1202 (July 10, 2018); id. at 1177 (July 17, 2018); id. at 1165–66 (July 23, 2018); id. at 1142 (July 30, 2018); id. at 1108 (Aug. 6, 2018); id. at 1085 (Aug. 13, 2018); id. at 1061 (Aug. 21, 2018); id. at 1010 (Sept. 6, 2018); id. at 996 (Sept. 10, 2018); id. at 970 (Sept. 17, 2018); id. at 950 (Sept. 24, 2018). 61 8 and [he] didn’t know what to do.’”66 Dr. LaFollette recommended that C.B. complete the Seven Stars program to receive “24/7 therapeutic support” at a boarding school.67 Care at Elevations RTC On September 30, 2018, C.B. transferred to Elevations for “further psychiatric stabilization after completing programming in [Seven] Stars.”68 C.B.’s psychiatric progress/discharge-transition note from Seven Stars indicated no hallucinations, illusions, suicidal/homicidal ideations, or self-harm symptoms.69 On October 1, Elevations generated an addendum to the June 11 evaluation. The addendum noted that C.B. “denied safety concerns”70 and identified “anxiety and avoidance” as the “core issues [he would] face while continuing care at Elevations.”71 Dr. Shadow recommended that C.B. continue “weekly individual and family therapy with daily group type therapies including process group, peer feedback group, wellness group, problem solving group, specialty group (upon further evaluation), and recreational/experiential group (as safety allows).”72 The next day, C.B.’s primary therapist completed a self-harm/suicide risk assessment form. The form indicated C.B. had never attempted suicide, had no suicidal thoughts, never committed self-harm, and did not have current 66 ECF No. 79-3, at 177 (alteration in original) (citation omitted). Id. at 193. 68 Id. at 911. 69 Id. at 939. 70 Id. at 919 (“[D]enies si/hi/self[-]harm ideation/awol ideation. Contracts for safety. No obvious manic or psychotic symptoms either observed or reported.”). 71 ECF No. 79-3, at 911; id. at 919 (“[T]ransition from the [Seven] Stars program to Elevations programming to continue therapeutic stabilization, particularly around social skill development which historically has lead [sic] to regression.”). 72 Id. at 919. 67 9 self-harm thoughts.73 But the form also incongruously noted that “history reports [C.B.] engaged in self[-]harm via head banging sometime in the last year.”74 Most progress notes from October 2018 through March 2019 indicated no risk of selfharm or suicide for C.B.75 Yet a January 3, 2019 note discussing a “[p]assive, fleeing suicidal ideation,” stated: C.B. “endorses having thoughts of suicide, but doesn’t have a plan.”76 And two notes in February and March 2019 referenced a December 3, 2018 suicide attempt.77 Five other therapy notes mentioned a risk of suicide or self-harm.78 In contrast, numerous therapy notes reflected no suicidal or self-harm thoughts from October 2018 to March 2019.79 73 Id. at 909. Id. 75 See id. at 865 (Oct. 11, 2018); id. at 839 (Oct. 18, 2018); id. at 825 (Oct. 22, 2018); id. at 788 (Nov. 1, 2018); id. at 766 (Nov. 6, 2018); id. at 743 (Nov. 12, 2018); id. at 705 (Nov. 20, 2018); id. at 668 (Nov. 30, 2018); id. at 647 (Dec. 6, 2018); id. at 632 (Dec. 10, 2018); id. at 583 (Dec. 20, 2018); id. at 534 (Jan. 3, 2019); id. at 518 (Jan. 7, 2019); id. at 486 (Jan. 16, 2019); id. at 468 (Jan. 21, 2019); id. at 437 (Jan. 29, 2019); id. at 388 (Feb. 12, 2019); id. at 361 (Feb. 20, 2018); id. at 345 (Feb. 22, 2019); id. at 317 (Feb. 28, 2019); id. at 285 (Mar. 8, 2019); id. at 250 (Mar. 15, 2019). 76 ECF No. 79-3, at 534. 77 Id. at 317 (Feb. 28, 2019); id. at 285 (Mar. 8, 2019). 78 Id. at 420 (Feb. 1, 2019); id. at 384 (Feb. 13, 2019); id. at 295 (Mar. 6, 2019); id. at 263 (Mar. 12, 2019); id. at 236 (Mar. 19, 2019). 79 See Individual Therapy Notes: ECF No. 79-3, at 891 (Oct. 5, 2018); id. at 879–80 (Oct. 8, 2018); id. at 850 (Oct. 17, 2019); id. at 823 (Oct. 23, 2018); id. at 800 (Oct. 20, 2018); id. at 771 (Nov. 6, 2018); id. at 730 (Nov. 12–13, 2018); id. at 710 (Nov. 19, 2018, noting “N/A” with respect to danger and self-harm/suicide risk); id. at 651 (Dec. 6, 2018, noting “N/A” with respect to danger and self-harm/suicide risk); id. at 621 (Dec. 12, 2018, noting “N/A” with respect to danger and self-harm/suicide risk); id. at 603 (Dec. 18, 2018, noting “N/A” with respect to danger and self-harm/suicide risk); id. at 531 (Jan. 4, 2019, noting “N/A” with respect to danger and self-harm/suicide risk); id. at 509 (Jan. 9, 2019, noting “N/A” with respect to danger and self-harm/suicide risk); id. at 480 (Jan. 18, 2019, noting “N/A with respect to danger and self-harm/suicide risk); id. at 454 (Jan. 25, 2019, noting “N/A” with respect to danger and self-harm/suicide risk); id. at 434 (Jan. 30, 2019, noting “no recent reports” with respect to danger or self-harm/suicide risk); id. at 400 (Feb. 8, 2019, noting “N/A” with respect to danger risk and “[n]o thoughts” for self-harm/suicide risk); id. at 350 (Feb. 21–22, 2019); id. at 328 (Feb. 26, 2019, noting “N/A” with respect to danger risk and “[n]o thoughts” for self-harm/suicide risk). See Family Therapy Notes: id. at 843 (Oct. 18, 2018); id. at 811 (Oct. 26, 2018); id. at 792 (Nov. 1, 2018); id. at 754 (Nov. 8, 2018); id. at 722 (Nov. 15, 2018); id. at 676 (Nov. 29, 2018); id. at 649 (Dec. 6, 2018); id. at 618 (Dec. 13, 2018); id. at 586 (Dec. 20, 2018); id. at 529 (Jan. 4, 2019); id. at 517 (Jan. 7, 2019); id. at 494 (Jan. 14, 2019); id. at 469 (Jan. 21, 2019); id. at 412 (Feb. 4, 2019); id. at 377 (Feb. 15, 2019); id. at 350 (Feb. 21–22, 2019); id. at 296 (Mar. 6, 2019); id. at 249 (Mar. 15, 2019); id. at 224 (Mar. 21, 2019); id. at 209 (Mar. 25, 2019). 74 10 As in Seven Stars, C.B. left Elevations periodically for overnight therapeutic visits or camping trips.80 C.B. was discharged from Elevations on June 6, 2019.81 Denial of Benefits Premera initially approved C.B. for thirty days’ treatment at Seven Stars.82 On July 10, 2018, Premera conducted a review for medical necessity and denied further coverage.83 C.B. received a denial letter the same day.84 The letter, signed by the “Medical Director Team, Medical Management Department,” indicated that reviewers had examined the insurance contract, the InterQual Criteria and guidelines for child and adolescent psychiatry, and Elevations medical records.85 It stated that Elevations RTC did not meet guidelines for continued inpatient coverage after July 10 because the service was no longer medically necessary.86 The letter recited the Plan’s requirements for continued residential treatment for a mental health condition as medically necessary when: “[1] A psychiatric evaluation is being done at least one time per week. [2] Clinical assessment by a licensed provider is being done at least one time per day. . . . [3] [I]ndividual or group or family therapy at least three times per week.”87 But the letter noted: “Information from your provider does not show that you are receiving these services. . . . [Y]ou have been away from the residential treatment facility since you left on 80 ECF No. 79-3, at 842 (Oct. 26–28, 2018); id. at 689, 704 (Nov. 20–24, 2018); id. at 559, 576 (Dec. 22–28, 2018); id. at 358, 373 (Feb. 16–21, 2019); id. at 499 (Jan. 10–12, 2019). 81 Am. Compl. ¶ 4. 82 Id. at ¶¶ 4, 13; Answer ¶¶ 4, 13; ECF No. 79-11, at 181–85. 83 ECF No. 79-11, at 285–86. 84 See ECF No. 79, at 34 (denial ltr. dated July 10, 2018). 85 Id. at 35. 86 Id. at 34. 87 Id. at 35. 11 7/6/18 to go on a camping trip, and that you therefore have not received any of these services since on or before 7/6/18.”88 Last, the letter detailed C.B.’s options including discussing treatment alternatives with Dr. Shadow, submitting more medical records, discussing the decision with Premera’s physician reviewers, continuing treatment at Elevations at full cost, or appealing.89 Level I Appeal and Denial Robert B. appealed on December 17, 2018.90 He disagreed with the adverse benefit determination for C.B. and claimed Premera violated federal law by “applying more stringent criteria to . . . intermediate behavioral health benefits, which are not applied comparably to . . . intermediate medical and surgical benefits.”91 As to Premera’s statement that C.B. had not received requisite treatment after July 6, Robert B. contended the camping trip was “a short leave of absence” and C.B. “was receiving treatment during the dates of service in question[.]”92 He argued C.B. had “experienced thoughts of hurting himself, has struggled in his interactions with peers, . . . has been hopeless and socially withdrawn at times . . . . [and] within recent weeks, . . . has again expressed suicidal ideations, thoughts of self-harm,” and is questioning his gender identity.93 Robert B. provided letters from two individuals who previously treated C.B.94 Finally, 88 Id. Id. 90 ECF No. 79-5, at 239–56. 91 Id. at 240–41. 92 Id. at 241. 93 Id. at 252–53. 94 Id.; ECF No. 79-7, at 34 (letter from Christina L. Olson); id. at 36 (letter from Chris Shepley). 89 12 he submitted a letter from Elevation’s medical director95 discussing the benefits of residential treatment for adolescents.96 On January 14, 2019, Premera informed Robert B. it had denied his appeal.97 The letter stated that care after July 10, 2018 was “not medically necessary . . . based on accepted medical standards” set forth in the “Summary Plan Description.”98 A “board-certified physician in Psychiatry and Child and Adolescent Psychiatry reviewed” medical records, the Plan, clinical criteria, and an independent, external medical review.99 The following rationale was provided: The records from Elevations RTC from July 10, 2018, onward do not document serious thoughts of [C.B.] hurting himself or others. There is no report of constant hopelessness, or of frequent severe struggles with peers, no reports of suicidal or homicidal thoughts, no serious medication reactions, no medical diseases that need 24-hour supervision and no substance abuse problem, either. Difficulties with social interactions as well as feelings of depression and anxiety that are not severe do not need residential care. There are no documented behaviors in the records that are potentially dangerous or that cannot be treated in an ambulatory setting instead.100 The letter stated Robert B. could submit a Level II appeal or obtain an external review.101 An independent board-certified physician in child and adolescent psychiatry reviewed C.B.’s case. The physician stated that he reviewed all relevant information such as the medical records, Premera’s denial letters, Robert B.’s appeal documents, Plan information, and InterQual 95 Payton Decl. ¶ 4 & Ex. 3, ECF No. 67-1, at 17–18. ECF No. 79-6, at 38–39 (letter from Michael S. Connolly). 97 ECF No. 79-3, at 24 (Level I appeal denial ltr. dated Jan. 14, 2019). 98 Id. 99 Id. at 25. 100 Id. at 24. 101 Id. at 25. 96 13 Criteria.102 After summarizing C.B.’s condition,103 the physician stated why he thought care was not medically necessary after July 10, 2018: The clinical notes dated from 7/10/18 do not document any ongoing suicidal or homicidal ideation. There is no self-injurious behavior. There are no psychotic symptoms. The patient is sad and cries at times. He is not aggressive or destructive in behavior. He is compliant with medication and treatment. He has been considered safe enough to go out on camping trips, visits home, and other activities in the facility which incorporate mountain biking, rafting, and skiing. He is able to do ADLs. There is no comorbid substance abuse disorder that would need 24-hour monitoring in a residential setting. He has no uncontrolled medical diseases that require residential care. There is therefore no compelling clinical rationale for continued residential mental health treatment from 7/10/18 forward. None of the InterQual [C]riteria Residential Treatment: Episode Day 16-X: Extended Stay, are met. Continued treatment at this level of care would be primarily custodial in nature.104 Level II Appeal and Denial On February 27, 2019, Robert B. filed a Level II appeal.105 He questioned whether Premera afforded C.B. a “full and fair review” because Premera allegedly “reused [its] original denial rationale and misrepresented the arguments [he] made in [his] level one member appeal[.]”106 He argued C.B.’s “severe behavioral health issues” could not be “effectively 102 ECF No. 79-11, at 176–77. Id. at 177 (“16-year-old male with major depression, anxiety, post-traumatic stress disorder (PTSD), and autism admitted to residential treatment on 6/11/18. He presented with a history of depressed mood, anxiety attacks, difficulty concentrating, declining academic functioning, preoccupation with video games, social isolation, and suicidal ideation. In the residential program, he was prescribed Lexapro and [C]lonazepam. The 7/3/18 psychiatric progress note documented that the patient had returned from a recent camping trip. His depression was rated 2 to 3/10 and anxiety 5/10. He denied suicidal and homicidal ideation. There was no reported aggression, self-harming, or psychosis. He was able to do activities of daily living (ADLs). The 6/27/18 progress note documented that the patient was ‘very homesick. He went into his room crying.’” (citation omitted)). 104 Id. at 178. 105 ECF No. 79-3, at 1333–87. 106 Id. at 1334–35. 103 14 addressed in only one month[.]”107 In support, he cited excerpts from the medical record108 and a letter from C.B.’s Elevations therapist addressing C.B.’s treatment after October 1, 2018.109 Premera responded on April 22, 2019, stating that a panel had denied the appeal.110 It informed Robert B. that the panel had reviewed the Plan information, the appeal requests, the InterQual Criteria, an external reviewer’s report, and “[i]nformation . . . shared during the Level Two Appeal Panel[.]”111 The panel provided the following rationale: This decision was made based on the [P]lan language, which excludes coverage on any service or supply determined to be not medically necessary. The records from Elevations from July 10, 2018, do not meet the criteria for residential treatment center level of care. The records do not indicate after July 10, 2018, that [C.B.] had thoughts of hurting self or others, she was able to attend to activities of daily living and was able to go on a camping trip from July 5, 2018, through July 11, 2018. During this trip there were no clinical notes that [C.B.] received a psych evaluation. The records submitted do not show that [C.B.] meets the criteria outlined in the lnterQual® criteria for Residential Treatment.112 On April 15, 2019, a licensed physician who specialized in child and adolescent psychiatry conducted an independent review.113 The physician examined all appeal information, medical records, Premera denial letters, Plan information, and pertinent InterQual Criteria.114 The physician described C.B. as presenting with “symptoms including panic attacks, social isolation, temper outbursts, suicidal ideation, preoccupation with computer use, noise 107 Id. at 1354 (emphasis removed). Id. at 1354–81. 109 ECF No. 79-7, at 123–24. 110 ECF No. 79-11, at 344 (Level II appeal denial ltr. dated Apr. 22, 2019). The panel consisted of a Physician Reviewer, who is a Medical Director Board-Certified in Pediatrics, a Clinician, and a Clinical Review Manager. Id. 111 Id. 112 Id. 113 Id. at 351. 114 Id. at 346. 108 15 hypersensitivity, family conflict and academic decline. . . . On 6/11/18 the patient expressed selfharming thoughts. From 7/11/18 on, the patient denied suicidal and homicidal ideation.”115 Referencing the InterQual Criteria for an extended stay (more than fifteen days) at an RTC, the physician found C.B. had not met the required criteria.116 He reasoned C.B. had not received a clinical assessment at least one time per day even though C.B. received therapy at least three times a week and a psychiatric evaluation at least one time each week.117 The physician concluded Elevations did “not provide the intensity of services required at this level of care”118 and that care after July 10, 2018 was not medically necessary: From 7/11/18 onwards, the patient denied suicidal and homicidal ideation, and was not self-harming, psychotic, aggressive, or unable to do activities of daily living (ADLs). These are the criteria that are recommended by the published medical literature to support continued residential treatment. The patient was medically stable and tolerating the medication without significant untoward side effects. As a result, the patient’s treatment could have taken place in a less restrictive setting, which would have been more appropriate for treatment, on the dates of service in question.119 Procedural Posture Plaintiffs filed their Complaint on December 30, 2020, alleging a denial-of-benefits claim and a MHPAEA (Parity Act) claim.120 Premera moved to dismiss the Parity Act claim.121 The court denied the motion122 and granted Plaintiffs leave to file an amended complaint. They did so 115 ECF No. 79-11, at 347. Id. at 348–49. 117 Id. at 348. 118 Id. at 349 (“[T]he patient’s progress notes indicate that the patient went on . . . a camping trip on 7/6/18 as part of the programming, indicating that wilderness/camping-type activities are part of the program’s treatment. The notes do not indicate that a clinical assessment by a licensed provider is documented at least once a day.”). 119 Id. at 348. 120 ECF No. 2. 121 ECF No. 13. 122 ECF No. 22. 116 16 on December 29, 2021.123 Three months later, Premera filed another motion to dismiss the Parity Act claim.124 In August 2022, the court granted in part and denied in part the motion.125 The parties filed cross-motions for summary judgment, which were fully briefed in August 2023.126 STANDARD Under Federal Rule of Civil Procedure 56, summary judgment must be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”127 “Where, as here, the parties in an ERISA case both move[] for summary judgment . . . , ‘summary judgment is merely a vehicle for deciding the case; the factual determination of eligibility for benefits is decided solely on the administrative record, and the . . . part[ies are] not entitled to the usual inferences in [their] favor.’”128 DISCUSSION The parties move for summary judgment on Plaintiffs’ two claims: Premera’s denial of benefits and an alleged Parity Act violation. The court discusses each in turn. I. Denial of Benefits Claim ERISA “sets minimum standards for employer-sponsored health plans[.]”129 Congress enacted the regulations “to promote the interests of employees and their beneficiaries in employee benefit plans, and to protect contractually defined benefits.”130 For this reason, 123 See Am. Compl. ECF No. 39. 125 ECF No. 51. 126 ECF Nos. 70, 71, 73, 74, 85, 86, 90, 91. 127 Fed. R. Civ. P. 56(a). 128 Carlile v. Reliance Standard Life Ins., 988 F.3d 1217, 1221 (10th Cir. 2021) (quoting LaAsmar v. Phelps Dodge Corp. Life, Accidental Death & Dismemberment & Dependent Life Ins. Plan, 605 F.3d 789, 796 (10th Cir. 2010)). 129 D.K. v. United Behav. Health, 67 F.4th 1224, 1236 (10th Cir. 2023). 130 Black & Decker Disability Plan v. Nord, 538 U.S. 822, 830 (2003) (citation omitted). 124 17 “ERISA represents a careful balancing between ensuring fair and prompt enforcement of rights under a plan and the encouragement of the creation of such plans.”131 The court first addresses the proper standard of review. A. Standard of Review for the Denial of Benefits Claim ERISA contemplates “‘a distinct standard of review’ for plan administrators’ decisions.”132 Courts presumptively review ERISA claims de novo.133 “When applying [this] standard in the ERISA context, the role of the court . . . is to determine whether the administrator made a correct decision. The administrator’s decision is accorded no deference or presumption of correctness.”134 The “standard is not whether ‘substantial evidence’ or ‘some evidence’ supported the administrator’s decision; it is whether the plaintiff’s claim for benefits is supported by a preponderance of the evidence based on the district court’s independent review.”135 “But if a plan administrator enjoys discretionary authority under the plan, [courts] apply a deferential standard, affirming the decision unless it is arbitrary and capricious.”136 Courts will uphold the administrator’s determination “so long as it was made on a reasoned basis and supported by substantial evidence.”137 “Substantial evidence requires more than a scintilla but 131 Matney v. Barrick Gold of N. Am., 80 F.4th 1136, 1145 (10th Cir. 2023) (internal quotation marks omitted) (quoting Conkright v. Frommert, 559 U.S. 506, 517 (2010)). 132 Lyn M. v. Premera Blue Cross, 966 F.3d 1061, 1065 (10th Cir. 2020) (citation omitted). 133 Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). 134 Niles v. Am. Airlines, Inc., 269 F. App’x 827, 832 (10th Cir. 2008) (unpublished) (quoting Hoover v. Provident Life & Accident Ins. Co., 290 F.3d 801, 808–09 (6th Cir. 2002)). 135 L.D. v. UnitedHealthcare Ins., ___ F. Supp. 3d ____, No. 1:21-cv-00121, 2023 WL 4847421, at *11 (D. Utah July 28, 2023) (quoting Niles, 269 F. App’x at 833). 136 Lyn M., 966 F.3d at 1065; see LaAsmar, 605 F.3d at 796 (“The court reviews the administrative record ‘under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.’” (citation omitted)); Gilbertson v. Allied Signal, Inc., 328 F.3d 625, 635 (10th Cir. 2003) (“[I]n the context of an ongoing, good faith exchange of information between the administrator and the claimant, inconsequential violations of the deadlines or other procedural irregularities would not entitle the claimant to de novo review.”). 137 Van Steen v. Life Ins. Co. of N. Am., 878 F.3d 994, 997 (10th Cir. 2018). 18 less than a preponderance.”138 It is “such evidence that a reasonable mind might accept as adequate to support the conclusion reached by the decision-maker.”139 “In determining whether the evidence in support of the administrator’s decision is substantial, [courts] must take into account whatever in the record fairly detracts from its weight.”140 Defendants have the burden to show the arbitrary and capricious standard applies.141 Because the Plan delegates authority to Premera to make eligibility decisions,142 Premera argues the Plan “clearly and unambiguously grants discretionary authority . . . to interpret the Plan’s terms and determine benefits eligibility.”143 Plaintiffs concede this assertion,144 but contend applicable state insurance law bars discretionary authority clauses.145 Alternatively, they contend Premera’s failure to comply with procedural requirements necessitates de novo review.146 Premera does not respond to Plaintiffs’ arguments as to the proper standard of review.147 As such, Premera apparently concedes de novo review.148 Even so, the court need not decide this issue since the result would be the same under either standard. 138 Graham v. Hartford Life & Acc. Ins. Co., 589 F.3d 1345, 1358 (10th Cir. 2009) (citation omitted). Id. (quoting Sandoval v. Aetna Life & Cas. Ins. Co., 967 F.2d 377, 382 (10th Cir. 1992)). 140 David P. v. United Healthcare Ins. Co., 77 F.4th 1293, 1308 (10th Cir. 2023) (citation omitted). 141 M.S. v. Premera Blue Cross, 553 F. Supp. 3d 1000, 1019 (D. Utah 2021). 142 ECF No. 79-11, at 357 (“The Group has delegated authority to Premera Blue Cross to use its expertise and judgment as part of the routine operation of the plan to reasonably apply the terms of the contract for making decisions as they apply to specific eligibility, benefits and claims situations.”). 143 Def.’s Mot. Summ. J. 22. 144 Pls.’ Mot. Summ. J. 17 (admitting Premera has the authority to “determine eligibility for benefits or to construe the terms of the plan”). 145 Id. (citing Wash. Admin. Code § 284-44-015 (2023); Utah Code Ann. § 31A-21-314 (West 2023)). 146 Id. (citing Rasenack ex rel. Tribolet v. AIG Life Ins. Co., 585 F.3d 1311, 1316–17 (10th Cir. 2009)). 147 See Def.’s Opp’n to Pls.’ Mot. Summ. J. (“Def.’s Opp’n”), ECF No. 86, filed May 10, 2023. 148 See, e.g., David v. Midway City, No. 2:20-cv-00066, 2021 WL 6930939, at *16 (D. Utah Dec. 14, 2021), appeal dismissed, No. 22-4009, 2022 WL 3350513 (10th Cir. Aug. 3, 2022) (“[T]he [c]ourt concludes that [p]laintiffs have clearly conceded and/or abandoned their . . . claim and the other claims that they failed to defend in the Memorandum in opposition to the County’s Motion.” (citing United States v. Garcia, 52 F. Supp. 2d 1239, 1253 (D. Kan. 1999))); Hinsdale v. City of Liberal, 19 F. App’x 749, 769 (10th Cir. 2001) (unpublished)). 139 19 B. Full and Fair Review Plan administrators “owe[] a special duty of loyalty to the plan beneficiaries.”149 They must provide a “reasonable opportunity to any participant whose claim for benefits has been denied [to receive] a full and fair review . . . .”150 “Full and fair” review means claimants “know[] what evidence the decision-maker relied upon, hav[e] an opportunity to address the accuracy and reliability of the evidence, and . . . the decision-maker consider[s] the evidence presented by both parties prior to reaching and rendering [its] decision.”151 This includes not only giving claimants the “opportunity to submit written comments, documents, records, and other information relating to the claim for benefits” but also conducting a “review that takes into account all . . . information submitted by the claimant relating to the claim, without regard to whether such information was submitted or considered in the initial benefit determination.”152 “[A]dministrator statements may not be conclusory and any health conclusions must be backed up with reasoning and citations to the record.”153 This “full and fair” review includes a “meaningful dialogue” between plan administrators and beneficiaries.154 “If benefits are denied[,] the reason for the denial must be stated in 149 D.K., 67 F.4th at 1236 (quoting Metro. Life Ins. v. Glenn, 554 U.S. 105, 111 (2008)); see David P., 77 F.4th at 1298–99. 150 D.K., 67 F.4th at 1236. 151 Sage v. Automation, Inc. Pension Plan & Tr., 845 F.2d 885, 893–94 (10th Cir. 1988) (quoting Grossmuller v. Int’l Union, United Auto. Aerospace & Agric. Implement Workers of Am., Local 813, 715 F.2d 853, 858 n.5 (3rd Cir. 1983)). 152 David P., 77 F.4th at 1299 (quoting 29 C.F.R. § 2560.503-1(h)(2)(ii), (iv)). 153 D.K., 67 F.4th at 1242 (citing McMillan v. AT&T Umbrella Benefit Plan No. 1, 746 F. App’x 697, 705–06 (10th Cir. 2018) (unpublished)); see David P., 77 F.4th at 1312. 154 See D.K., 67 F.4th at 1240 (“In simple English, what [ERISA] calls for is a meaningful dialogue between ERISA plan administrators and their beneficiaries. . . . [I]f the plan administrators believe that more information is needed to make a reasoned decision, they must ask for it. There is nothing extraordinary about this: it’s how civilized people communicate with each other regarding important matters.” (quoting Booton v. Lockheed Medical Benefit Plan, 110 F.3d 1461, 1463 (9th Cir. 1997))). 20 reasonably clear language[.]”155 While administrators need not defer to the opinions of a beneficiary’s treating physicians,156 reviewers “may not arbitrarily refuse to credit such opinions if they constitute reliable evidence from the claimant.”157 In other words, reviewers “cannot shut their eyes to readily available information . . . [that may] confirm the beneficiary’s theory of entitlement.”158 They must “engage with medical opinions in health benefit claims.”159 Indeed, “if benefits are denied and the claimant provides potential counterevidence from medical opinions, the reviewer must respond to the opinions.”160 Benefit-denial letters must include the “specific reason or reasons for the adverse determination”; “the specific plan provisions on which the determination is based”; a “description of any additional material or information necessary for the claimant to perfect the claim and an explanation of why such material is necessary”; and “an explanation of the scientific or clinical judgment for the determination, applying the terms of the plan to the claimant’s medical circumstances.”161 And administrators must communicate these rationales to claimants before litigation.162 155 David P., 77 F.4th at 1300 (quoting Rasenack, 585 F.3d at 1326). Nord, 538 U.S. at 831; see id. at 834 (“[C]ourts have no warrant to require administrators automatically to accord special weight to the opinions of a claimant’s physician; nor may courts impose on plan administrators a discrete burden of explanation when they credit reliable evidence that conflicts with a treating physician’s evaluation.”). 157 D.K., 67 F.4th at 1237. 158 Id. (alteration in original) (quoting Gaither v. Aetna Life Ins. Co., 394 F.3d 792, 807 (10th Cir. 2004)). 159 Id. at 1239. With that said, “[t]his conclusion does not create any blanket requirement that a health plan administrator considering a claim for health care benefits must seek out all treating care givers’ opinions found in a claimant’s medical records and explain whether or not the plan administrator agrees with each of those opinions and why.” David P., 77 F.4th at 131. 160 D.K., 67 F.4th at 1241. 161 David P., 77 F.4th at 1299 (citing 29 C.F.R. § 2560.503-1(g)(1)). 162 See D.K., 67 F.4th at 1241 (“It cannot be that the depth of an administrator’s engagement with medical opinion would be revealed only when the record is presented for litigation.”); see also David P., 77 F.4th at 1300–01 (“A plan administrator may not ‘treat the administrative process as a trial run and offer a post hoc rationale in district court.’” (quoting Spradley v. Owens-Illinois Hourly Emps. Welfare Ben. Plan, 686 F.3d 1135, 1141 (10th Cir. 2012))). 156 21 The court now turns to Premera’s denial letters and associated external reviews. 1. Premera’s Denial Letters and Accompanying External Reviews Premera’s initial denial letter stated that Elevations “doesn’t meet guidelines for continued inpatient coverage after July 10, 2018.”163 Premera offered two reasons. First, it declared: “Continued residential treatment for a mental health condition is denied as not medically necessary” because “[i]nformation from [Elevations] does not show any of the situations” set forth in the guidelines.164 Second, Premera indicated that “[i]nformation from [Elevations] does not show that [C.B. is] receiving” required care for continued residential treatment for a mental health condition.165 Premera noted that C.B. “ha[s] been away from [Elevations] . . . to go on a camping trip, and that [C.B.] therefore ha[s] not received any of these services since on or before 7/6/18.”166 Next, Premera stated in its Level I appeal denial letter that continued RTC care was “not medically necessary” “based on accepted medical standards.”167 Premera remarked: “[t]here are no documented behaviors in the records that are potentially dangerous or cannot be treated in an ambulatory setting instead.”168 Responding to Robert B.’s Level II appeal, Premera’s third denial letter reiterated that the Elevations records “do not meet the criteria for [RTC] level of care.”169 163 ECF No. 79, at 34. Id. at 35. 165 Id. 166 Id. 167 ECF No. 79-3, at 24. 168 Id. 169 ECF No. 79-11, at 344. 164 22 Premera also included two reports from independent reviewers.170 The first reviewer concluded, after having examined relevant information, that “[n]one of the InterQual [C]riteria” for residential treatment after fifteen days are met.171 He stated that “[t]here are no documented behaviors that . . . cannot be treated in an ambulatory setting instead.”172 “There is therefore no compelling clinical rationale for continued residential mental health treatment . . . . Continued treatment at this level of care would be primarily custodial in nature.”173 The second reviewer found, “[b]ased on the provided clinical documentation and the medical policy[,]” that “Premera’s initial determination and rationale that the continued [RTC] stay after 7/10/18 . . . is not medically necessary should be upheld.”174 The reviewer explained: “[C.B.] do[es] not need a 24-hour residential treatment center. . . . [C]are could be done in an outpatient setting.”175 Before turning to Plaintiffs’ arguments as to why Premera violated ERISA, the court addresses the contention that the court should not consider the external reviewers’ reports. 2. Whether the Court Should Consider the External Reviewers’ Reports Plaintiffs contend the external reviewers’ conclusions are irrelevant. They assert Premera’s “denial[s] must rest on [their] own strength”176 and so Premera cannot rely on See Def.’s Opp’n 12; Def.’s Reply in Support of Mot. Summ. J. (“Def.’s Reply”) 3, ECF No. 73, filed Apr. 27, 2023 (explaining that the reviewers’ reports were attached to the denial letters). Plaintiffs do not argue otherwise. See Pls.’ Opp’n to Def.’s Mot. Summ. J. (“Pls.’ Opp’n”) 8–9, ECF No. 71, filed Apr. 13, 2023. The second and third denial letters state that the administrator reviewed the external physicians’ reports. See ECF No. 79-3, at 25 (reviewing the “Same specialty review report”); ECF No. 79-11, at 344 (reviewing the “Level II same specialty reviewer report”). The record confirms that these specialty review reports were independent medical reviews. See, e.g., ECF No. 79-11, at 175–79. 171 ECF No. 79-3, at 30. 172 ECF No. 79-11, at 178. 173 Id. 174 Id. at 349. 175 Id. at 347; see id. at 348 (“[C.B.]’s treatment could have taken place in a less restrictive setting[.]”). 176 Pls.’ Opp’n 8. 170 23 “[r]ationales and factual evidence later cited by external reviewers.”177 Premera responds that it correctly consulted external reviewers. Plan administrators routinely consider medical experts’ reports when determining medical necessity.178 In fact, federal regulations direct plan administrators to “consult with a health care professional who has appropriate training and experience in the field of medicine involved in the medical judgment[.]”179 Of course, an administrator does not have to refer a claim to an external reviewer before making an initial benefits determination.180 But such reviews are often considered in ERISA litigation.181 In this case, Premera supplemented its denial letters with two external reviewers’ reports. Plaintiffs cite David P. v. United Healthcare Insurance Co.182 for the proposition that an administrator cannot “hide behind an independent reviewer’s acts and call them its own.”183 Yet the court in David P. did not state categorically that external reviewers’ rationales are irrelevant. Id. at 8–9 (citing David P. v. United Healthcare Ins. Co., 564 F. Supp. 3d 1100, 1122 (D. Utah 2021), aff’d in part, vacated in part, rev’d in part, 77 F.4th 1293 (10th Cir. 2023)). 178 See, e.g., Ellis v. Liberty Life Assurance Co. of Bos., 958 F.3d 1271, 1294–95 (10th Cir. 2020); Gaither, 394 F.3d at 802–03; Blair v. Alcatel-Lucent Long Term Disability Plan, 688 F. App’x 568, 575 (10th Cir. 2017) (unpublished). 179 29 C.F.R. § 2560.503-1(h)(3)(iii). 180 See Easter v. Hartford Life & Accident Ins. Co., No. 21-4106, 2023 WL 3994383, at *7 (10th Cir. June 14, 2023) (not selected for publication). 181 See, e.g., Mark M. v. United Behav. Health, No. 2:18-cv-00018, 2020 WL 5259345, at *12 (D. Utah Sept. 3, 2020) (noting that an external review agency “found the treatment [as] not medically necessary”); Jennifer L. v. United of Omaha Life Ins. Co., No. 2:18-cv-00848, 2020 WL 5659483, at *14 (D. Utah Sept. 23, 2020); Weiss v. Banner Health, 416 F. Supp. 3d 1178, 1188–89 (D. Colo. 2019) (“[Plan administrator] granted [p]laintiff an external review by an independent reviewer, who conducted a reasoned analysis of the claim and reached the same result as [the administrator].”); Amy G. v. United Healthcare, No. 2:17-cv-00427, 2018 WL 2303156, at *5 (D. Utah May 21, 2018) (“[T]he external review performed by an additional health care professional similarly determined that treatment at a residential treatment facility was not appropriate.”); Tracy O. v. Anthem Blue Cross Life & Health Ins. Co., No. 2:16-cv-00422, 2017 WL 3437672, at *9 (D. Utah Aug. 10, 2017), aff’d, 807 F. App’x 845 (10th Cir. 2020) (unpublished) (finding that the “conclusions are further supported by the independent review”); Liebel v. Aetna Life Ins. Co., No. CIV-12-1315, 2014 WL 348965, at *4 (W.D. Okla. Jan. 31, 2014), aff’d, 595 F. App’x 755 (10th Cir. 2014) (unpublished). 182 564 F. Supp. 3d 1100. 183 Pls.’ Opp’n 9. 177 24 The court simply “prioritized the rationales” in the administrator’s denial letters and rejected the idea that “later cited” evidence identified by external reviewers could salvage the administrator’s deficient process.184 Here, the two external reviews are contemporaneous with the administrator’s denials of Robert B.’s appeals.185 They do not constitute “later cited” evidence. They are appropriately considered in determining whether Premera violated ERISA, despite the obvious importance of the benefit denial letters themselves. 3. Plaintiffs’ Benefits Determination Arguments Plaintiffs offer three primary arguments for why Premera violated ERISA in making its benefits determination: (1) the InterQual Criteria impermissibly limited the medical necessity language in the plan; (2) treatment at Elevations was medically necessary because C.B. displayed qualifying symptoms; and (3) Premera ignored C.B.’s treating professionals’ medical necessity opinions. The court treats each argument in order. a. The InterQual Criteria Citing McGraw v. Prudential Insurance Co. of America,186 Plaintiffs cursorily contend that “Premera’s use of the InterQual Criteria limited the scope of the medical necessity definition in the Plan’s terms.”187 But McGraw did not hold that plan administrators may not use criteria or guidelines to help them determine whether certain treatments are medically necessary. Nor did McGraw address the InterQual Criteria at issue here. Instead, the court examined language from 184 David P., 564 F. Supp. 3d at 1122. Compare ECF No. 79-3, at 28–30 (external review ltr. dated Jan. 14, 2019), and ECF No. 79-11, at 346–50 (external review ltr. dated Apr. 15, 2019), with ECF No. 79-3, at 24–25 (Level I appeal denial ltr. dated Jan. 14, 2019), and ECF No. 79-11, at 344–45 (Level II appeal denial ltr. dated Apr. 22, 2019). 186 137 F.3d 1253 (10th Cir. 1998). 187 Pls.’ Mot. Summ. J. 24. 185 25 a different insurance plan and determined that a “confidential, internal” memo was being used improperly to result in an “unreasonable” interpretation of the plan.188 Plaintiffs cite no authority suggesting that the use of the InterQual Criteria is improper and do not develop their argument further. On this record, their criticism is not supported. b. Qualifying Symptoms Plaintiffs also argue that C.B. “displayed qualifying symptoms.”189 Among these, Plaintiffs point to several symptoms and behaviors that do not seemingly meet the InterQual Criteria, like struggling with anxiety, emotions, or forming friendships and bonds with others.190 However, Plaintiffs also identify “suicidal ideation,” which is a qualifying symptom under the InterQual Criteria.191 “Suicidal ideation includes not only active ideation that entails serious thoughts and/or plans to commit suicide but also passive ideation without an active plan, intent or means.”192 The record contains evidence of suicidal ideation. On August 16, 2018, a psychologist examining C.B. found that she “reported monthly thoughts of suicidal ideation,” but that the thoughts were not ongoing.193 In his Level II appeal, Robert B. cited a letter from Phyllis Hawks (“Counselor Hawks”), one of C.B.’s therapists at Elevations. Counselor Hawks explained how C.B. vocalized suicidal thoughts in November 2018.194 Additionally, an Elevations shift log note McGraw, 137 F.3d at 1260. The court also noted that the plan administrator “testified the guideline was not intended to be binding.” Id. at 1260 n.13. 189 Pls.’ Mot. Summ. J. 24. 190 Id. 191 ECF No. 79-11, at 265. Plaintiffs also summarily reference “yelling at staff, throwing food, punching others, and not following directions.” Pls.’ Mot. Summ. J. 24. Plaintiffs cite a large block of records instead of specific examples, but the court finds only isolated instances of actual conduct. See, e.g., ECF No. 79-3, at 1359, 1373. Plaintiffs do not further develop this argument, so neither does the court. 192 ECF No. 79-11, at 293. 193 ECF No. 79-3, at 177. The court notes that it is not entirely clear when the “monthly thoughts” were occurring. 194 Id. at 1353 (“Maybe it’d be better if I didn’t exist[.]”). 188 26 alludes to a December 2018 suicide attempt.195 Robert B. also directed Premera to a January 2019 note stating how C.B. “shared that he has been experiencing suicidal ideation . . . .”196 A psychiatric progress note from the same time period describes how C.B. “endorses having thoughts of suicide[.]”197 And a February 1, 2019 shift log note reported that “[C.B.] was feeling unsafe and had a plan for suicide.”198 Other records from March 2019 reflect “recent” suicidal thoughts.199 Premera did not acknowledge Plaintiffs’ assertions that C.B. expressed suicidal ideations at any time after July 10, 2018, or cite any of the aforementioned record evidence. To the contrary, Premera plainly stated in its Level I appeal denial letter: “There [are] . . . no reports of suicidal . . . thoughts.”200 Likewise, Premera asserted in its Level II appeal denial letter that “[t]he records do not indicate after July 10, 2018, that [C.B.] had thoughts of hurting self or others[.]”201 Similarly, both external reviewers asserted C.B.’s supposed lack of suicidal ideations after July 10, 2018.202 As noted above, the record shows that Premera and its external reviewers’ categorical denials were simply wrong. Various records across multiple months suggest C.B. had suicidal thoughts after July 10, 2018. In its briefing, Premera now acknowledges that the record contains “references to C.B. having thoughts of self-harm” and that therapeutic notes indicate “C.B. ECF No. 79-1, at 242 (C.B. admitting to “having dark thoughts”). ECF No. 79-3, at 1377. 197 Id. at 534. 198 Id. at 420. 199 Id. at 236, 263, 295. 200 Id. at 24. 201 ECF No. 79-11, at 344. 202 ECF No. 79-3, at 30 (“The clinical notes dated from 7/10/18 do not document any ongoing suicidal . . . ideation.”); ECF No. 79-11, at 347 (“The notes do not show you are having thoughts of harming yourself or others.”). 195 196 27 experienced recent thoughts of suicide, self-harm, or harm to others[.]”203 Premera further vigorously argues that the various post-July 10, 2018 record references to suicidal ideation change nothing because they are “sporadic,”204 “overlap with contemporaneously-dated therapy notes” denying self-harm or suicide thoughts,205 or, in the case of the suicide attempt reference, are simply incorrect.206 But here is the rub. None of this reasoning or analysis is present in Premera’s denial letters or those of the external reviewers. “[C]ourts will consider only ‘those rationales that were specifically articulated in the administrative record as the basis for denying a claim.’”207 All of the letters simply—and wrongly—claim that the records do not show self-harm or suicide thoughts after July 10, 2018.208 The letters do not attempt to explain why the suicidal ideations, while relevant to the InterQual Criteria, were not enough to satisfy the guidelines. They do not contend that the handful of suicide references were not credible or useful to the medical necessity determination because they were contradicted by other records. They do not explain the weight, or lack thereof, assigned to those records. Instead, the denial letters are written as if the suicidal ideation and self-harm records simply do not exist. This failure violates ERISA. Under the applicable regulations, plan administrators have a “greater fiduciary duty” to “provide a full and fair review of the evidence presented, through a Def.’s Opp’n 9. Id. 205 Def.’s Mot. Summ. J. 12. 206 Def.’s Opp’n 9. 207 Spradley, 686 F.3d at 1140 (quoting Flinders v. Workforce Stabilization Plan of Phillips Petroleum Co., 491 F.3d 1180, 1190 (10th Cir. 2007), overruled on other grounds by David P., 77 F.4th 1293)). 208 See ECF No. 79, at 34–35 (denial ltr. dated July 10, 2018); ECF No. 79-3, at 24–25 (Level I appeal denial ltr. dated Jan. 14, 2019); ECF No. 79-11, at 344–45 (Level II appeal denial ltr. dated Apr. 22, 2019); ECF No. 79-3, at 28–30 (external review ltr. dated Jan. 14, 2019); ECF No. 79-11, at 346–50 (external review ltr. dated Apr. 15, 2019). 203 204 28 reasonable process, as consistent with the plan.”209 While it may have been entirely accidental, Premera’s denial of C.B.’s suicidal ideations was not an isolated mistake about a single record. Nor was it a mistake by a single reviewer—both of the Premera administrative personnel and both of the medical reviewers made the same error. And their errors were compounded by the failure to address the suicide thoughts identified in Robert B.’s Level II appeal. In short, Premera’s denial and review letters do not cite the relevant medical records on suicide, the conclusory statements in them about the absence of suicidal ideation are contradicted by the record, and the final two denial letters fail to engage with the suicidal ideation evidence cited in Robert B.’s final appeal. This was not the “full and fair review” ERISA requires,210 nor did it result in the “meaningful dialogue ERISA mandates.”211 c. Engagement with Medical Necessity Opinion Letters Plaintiffs also argue Premera acted arbitrarily and capriciously by “wholly ignoring” the opinions of C.B.’s treating professionals.212 For its part, Premera asserts reviewers considered the letters but decided that continued coverage was not medically necessary “based on the totality of the record.”213 With his appeals, Robert B. included four letters: three from C.B.’s former treating professionals: Christine Olson (“Nurse Olson”), Chris Shepley (“Counselor Shepley”), and 209 D.K., 67 F.4th at 1239. David P., 77 F.4th at 1300 (citing Sage, 845 F.2d at 893–94). 211 Id. at 1315. 212 Pls.’ Mot. Summ. J. 25–26. 213 Def.’s Opp’n 11. 210 29 Counselor Hawks;214 and one from Michael S. Connolly (“Dr. Connolly”).215 The court briefly surveys each letter. First, Nurse Olson is a provider at a Walla Walla, Washington family practice.216 Her December 3, 2018 letter states she treated C.B. for 10 years and describes C.B.’s ASD, “difficulties with major severe depression and anxiety[,]” bouts with depression and suicidal ideations, and difficulties functioning at home or school.217 She opines that it was “very apparent that [C.B.] would benefit from inpatient treatment or a specialized school environment” and that C.B.’s challenges likely would persist even into adulthood.218 Next, Counselor Shepley is a licensed mental health counselor in Walla Walla, Washington. From September 2016 to June 2018, he held weekly outpatient sessions for C.B.’s major depression and ASD.219 Counselor Shepley states that C.B. has extreme depression with suicidal impulses, little motivation for life activities, and aggressive behaviors. He recommends more intensive treatment in a “very structured setting.”220 Last, he states that he “strongly disagree[s]” with Premera’s coverage decision and “greatly fear[s]” what would happen to C.B. if treatment were terminated.221 Robert B.’s third letter comes from Counselor Hawks, C.B.’s primary therapist at Elevations starting October 2018. The February 12, 2019 letter summarizes C.B.’s condition as 214 See ECF No. 79-1, at 205 (letter from Christine Olson); id. at 207 (letter from Chris Shepley); ECF No. 79-7, at 123–24 (letter from Phyllis Hawks). 215 ECF No. 79-6, at 38–39. 216 ECF No. 79-1, at 205. 217 Id. 218 Id. 219 Id. at 207. 220 Id. 221 ECF No. 79-1, at 207. 30 of her admission to Elevations’s main program.222 Counselor Hawks describes C.B.’s anxiety and depression and her social difficulties. Then, she notes C.B.’s “passive suicidal references” in November 2018 and suicidal thoughts in January 2019.223 She recommends that C.B. remain at Elevations given “[C.B.]’s past experiences of suicidal ideation[.]”224 According to Counselor Hawks, “discharging [C.B.] prematurely will jeopardize his therapeutic progress and significantly place him at high risk for severe regression.”225 The last letter is from Elevation’s medical director, Dr. Connolly. He addresses his undated letter to “Whom it May Concern.”226 It is titled “Re: Anthem Psychiatric Disorder Criteria.”227 The letter does not refer to C.B.’s treatment at Elevations or to C.B. whatsoever. Instead, it clearly is a letter from another case involving a different company’s criteria. The letter says nothing about C.B.’s symptoms or needs. Accordingly, there was no need for Premera to consider or address it, and the court does not discuss it further. In its briefing, Premera offers various detailed explanations for why the other three letters from those who treated C.B. did not “justif[y] her continuing confinement outside her community for a year.”228 Premera contends that none of the treaters were psychiatrists, that it does not consider any of the letters to be “a medical record or assessment prepared at the time of C.B.’s stay at Elevations,” that the letters did not adequately discuss medical necessity, and that 222 ECF No. 79-7, 123. Id. at 123–24. 224 Id. at 124. 225 Id. 226 ECF No. 79-6, at 38. 227 Id. 228 Def.’s Opp’n 12. 223 31 the letters were advocacy pieces.229 Whatever the merits of these explanations, the problem is that none of them were offered in the denial letters or medical reviews. The denial letters and third-party reviews say that the letters were received and reviewed. Premera stated in the second denial letter that it reviewed Robert B.’s Level I appeal request, which included Nurse Olson’s and Counselor Shepley’s letters.230 The first independent medical reviewer did the same.231 And the second external reviewer confirmed that he looked at all three letters.232 So, too, Premera, as it stated in the third denial letter.233 However, other than listing the letters as received or reviewed, none of the denial or review correspondence substantively addressed the treaters’ opinions. They do not discuss or reference the opinions whatsoever, leaving both the beneficiary and the court with no way of discerning whether they actually were engaged with substantively at all. The denials are simply devoid of what weight, if any, Premera accorded these opinions. “It cannot be that the depth of an administrator’s engagement with medical opinion would be revealed only when the record is presented for litigation.”234 It is true that ERISA does not put “a heightened burden of explanation on administrators when they reject a treating physician’s opinion.”235 Plan administrators need not “accord special deference to the opinions of [the beneficiary’s] treating physicians.”236 By the same token, reviewers “cannot shut their 229 Id. at 11–14; Def.’s Mot. Summ. J. 28–29; Def.’s Reply 11–13. ECF No. 79-11, at 326. 231 ECF No. 79-3, at 29. 232 ECF No. 79-11, at 346. 233 Id. at 344 (reviewing the appeal requests). Plaintiffs’ Level II appeal included Counselor Hawks’s letter. See ECF No. 79-7, at 122. 234 D.K., 67 F.4th at 1241. 235 Rasenack, 585 F.3d at 1325 (citation omitted). 236 Nord, 538 U.S. at 831. 230 32 eyes to readily available information . . . that [may] confirm the beneficiary’s theory of entitlement . . . .”237 Plan administrators are “required to engage with and address” treater opinions.238 “By not providing an explanation for rejecting or not following these opinions, that is, not ‘engaging’ with these opinions, [the plan administrator] effectively ‘shut[s] its eyes’ to readily available medical information.”239 “This is the core of meaningful dialogue: if benefits are denied and the claimant provides potential counterevidence from medical opinions, the reviewer must respond to the opinions.”240 Here, there was no response to, or even substantive mention of, Plaintiffs’ treater opinions. If Premera thought them insufficient to support coverage because of when they were written, who wrote them, or what information they did or did not cover, Premera needed to say something in its denial letters or medical reviews. Premera did not “respond to the opinions.”241 It did not “engage” with them.242 By failing to do so, Premera acted arbitrarily and capriciously, violating ERISA. d. Premera’s Additional Arguments In addition to the issues above, Premera offers three other grounds to defend against Plaintiffs’ claims. Premera argues that Elevations was not the least intensive treatment, that C.B.’s absences from Elevations justify declining coverage, and that Elevations did not provide all of the required services. Because none of these arguments cure the violations noted above, the court addresses them briefly. 237 Gaither, 394 F.3d at 807. D.K., 67 F.4th at 1237. 239 Id. 240 David P., 77 F.4th at 1311 (quoting D.K., 67 F.4th at 1241). 241 D.K., 67 F.4th at 1241. 242 David P., 77 F.4th at 1315. 238 33 Lower Level of Care Premera argues that “C.B.’s year-long stay at Elevations was not medically necessary because C.B. could have been treated with a less-intensive level of care than residential treatment.”243 Premera notes that the InterQual Criteria recommend residential treatment “in cases where an individual cannot be managed safely in the community,” contends that the records show that “C.B. was not a danger to herself or others,” and describes other available treatment options.244 As noted earlier, the same Premera reviews that concluded that a lower level of care was warranted also incorrectly found that the records did not show any suicidal ideation after July 10, 2018. That error, together with the failure to consider the safety concerns expressed in the treater opinions, undermines the lower-level-of-care conclusion reached in the Premera reviews. Absences from Elevations Premera also very briefly argues that “C.B.’s repeated absences from Elevations undermine Plaintiff[s’] medical necessity claim.”245 Some of the denial letters and reviews reference these excursions, with the Level I appeal external reviewer noting that C.B. “has been considered safe enough to go out on camping trips, visits home, and other activities in the facility which incorporate mountain biking, rafting, and skiing.”246 However, because these same reviewers erroneously found that the record contained no evidence of suicidal ideation, their safety assessments remain deficient. 243 Def.’s Mot. Summ. J. 24. Id. at 25–26; Def.’s Reply 4–5. 245 Def.’s Mot. Summ. J. 26; Def.’s Reply 5. 246 ECF No. 79-3, at 30. 244 34 Intensity of Services Last, Premera argues that Elevations did not provide all of the evaluations and assessments outlined in the InterQual Criteria.247 Some, but not all, of the denial letters discuss this issue in highly variable ways. The January 10, 2018 denial letter suggests that the required services were not received during a camping trip.248 The January 14, 2019 Level I appeal denial letter says nothing about it.249 The medical review of the same date does not specifically identify the required evaluations or assessments, but instead categorically states that “[n]one of the InterQual [C]riteria Residential Treatment Episode Day 16-X: Extended Stay, are met.”250 The April 15, 2019 medical review finds that Elevations “does not provide the intensity of services required at this level of care,” and then provides a mixed review of what the InterQual Criteria require, what C.B. received, and what C.B. did not receive.251 The discussion is not clear about whether some of the required evaluations and assessments never occurred during C.B.’s entire year-long stay or instead sometimes did and at other times did not. The final denial letter, dated April 22, 2019, simply says that there are no clinical notes that C.B. received a “psych evaluation” during a camping trip.252 The variable and changing way in which the denial letters and reviews treat the intensity of services issue would make it very difficult for the beneficiaries to discern the precise evaluation and assessment defects being identified by Premera. The bookend denial letters seem focused on a specific camping trip. In between them, some of the other correspondence either Def.’s Mot. Summ. J. 23–24; Def.’s Reply 2–4. ECF No. 79, at 35. 249 ECF No. 79-3, at 25. 250 Id. at 30. 251 ECF No. 79-11, at 349. 252 Id. at 344. 247 248 35 says nothing specific about the issue or goes into some depth. It may be that failure to provide all required services at all times is a basis for denying coverage. However, based on the inconsistent discussion of the issue in the letters and the other previously discussed incorrect statements by the reviewers on suicidal ideation and failure to engage with the treaters’ medical opinions, this issue does not preclude remand, which the court discusses next. C. Remand for Further Consideration Having determined Premera acted in an arbitrary and capricious manner, the court must decide whether to remand for the plan administrator’s “renewed evaluation of the claimant’s case” or to award benefits.253 The decision “hinges on the nature of the flaws in the administrator’s decision.”254 Typically, “remand is appropriate if the administrator failed to make adequate factual findings or failed to adequately explain the grounds for the decision.”255 “But if the evidence in the record clearly shows that the claimant is entitled to benefits, an order awarding such benefits is appropriate.”256 Here, Premera did not provide C.B. a “full and fair review.”257 It rejected, without explanation or record support, Plaintiffs’ arguments that C.B. had qualifying symptoms in the form of suicidal ideations. It wrongly found that there was no evidence of suicidal ideation after 253 Weber v. GE Grp. Life Assur. Co., 541 F.3d 1002, 1015 (10th Cir. 2008) (quoting Flinders, 491 F.3d at 1193). Carlile, 988 F.3d at 1229 (citation omitted). 255 David P., 77 F.4th at 1315 (cleaned up); see id. (“[R]emand is more appropriate where plan administrator failed to make adequate factual findings or failed to explain adequately the grounds for its decision to deny benefits, but not if the administrator instead gave reasons that were incorrect.” (citing Spradley, 686 F.3d at 1142)); Buffonge v. Prudential Ins. Co. of Am., 426 F.3d 20, 31 (1st Cir. 2005) (concluding remand as the proper remedy when the “problem is with the integrity of [the plan administrator]’s decision-making process”). 256 David P., 77 F.4th at 1315 (cleaned up). 257 29 U.S.C. § 1133(2). 254 36 July 10, 2018, when, in fact, there was. And Premera did not meaningfully engage with letters from C.B.’s treatment providers potentially providing support for treatment. Remand is thus the proper remedy.258 The court declines to award benefits for C.B.’s entire year-long stay259 because, having reviewed the evidence, the court cannot say the “record clearly shows” coverage is warranted.260 II. Parity Act Claim Plaintiffs next assert Premera violated MHPAEA. The Parity Act, “codified at 29 U.S.C. § 1185a, is an amendment to ERISA that is enforced through equitable relief under § 1132(a)(3).”261 “Congress enacted the [Parity Act] to end discrimination in the provision of insurance coverage for mental health and substance use disorders as compared to coverage for medical and surgical conditions in employer-sponsored group health plans.”262 Under MHPAEA, “[t]reatment limitations include both quantitative treatment limitations, which are expressed numerically (such as 50 outpatient visits per year), and nonquantitative treatment limitations, which otherwise limit the scope or duration of benefits for treatment under a plan or coverage.”263 A “comparison of treatment limitations under MHPAEA must be between mental health/substance abuse and medical/surgical care ‘in the same classification.’”264 For example, Plaintiffs argue they are entitled to attorney’s fees. Pls.’ Mot. Summ. J. 37. However, because the court remands for further consideration by Premera, the issue of attorney’s fees is not yet ripe. See David P., 77 F.4th at 1316–17. 259 Pls.’ Mot. Summ. J. 35–36. 260 David P., 77 F.4th at 1315. Neither can the court say C.B. is “clearly not entitled to the claimed benefits.” Id. (emphasis added). 261 Peter M. v. Aetna Health & Life Ins., 554 F. Supp. 3d 1216, 1226 (D. Utah 2021). 262 Michael D. v. Anthem Health Plans of Ky., Inc., 369 F. Supp. 3d 1159, 1174 (D. Utah 2019) (quoting Am. Psychiatric Ass’n v. Anthem Health Plans, Inc., 821 F.3d 352, 356 (2d Cir. 2016)). 263 29 C.F.R. § 2590.712(a). 264 Peter M., 554 F. Supp. 3d at 1226–27 (quoting 29 C.F.R. § 2590.712(c)(4)(i), 2(ii)(A)). 258 37 “if a plan or issuer classifies care in skilled nursing facilities or rehabilitation hospitals as inpatient benefits, then the plan or issuer must likewise treat any covered care in residential treatment facilities for mental health or substance user disorders as an inpatient benefit.”265 But plans need not have identical coverage criteria. A plan complies with MHPAEA if “any processes, strategies, evidentiary standards, or other factors used in applying the nonquantitative treatment limitation to mental health or substance use disorder benefits in the classification are comparable to, and are applied no more stringently than, [those] used in applying the limitation with respect to medical/surgical benefits . . . .”266 Comparability, not a mirror image, is required.267 As Plaintiffs correctly note, to prevail on a Parity Act claim a plaintiff must demonstrate that: (1) the Plan “is subject to MHPAEA”; (2) the Plan “provides benefits for both mental health/substance abuse and medical/surgical treatments”; (3) the plan administrator places “differing limitations on benefits for mental health care” as compared to analogous “medical/surgical care”; and (4) the differing limitations on mental health care are more restrictive than the predominant limitations based on the medical/surgical analogues.268 “Disparate treatment limitations that violate the Parity Act can be either facial (as written in the 265 Final Rules Under the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008; Technical Amendment to External Review for Multi-State Plan Program, 78 Fed. Reg. 68247 (Nov. 13, 2013). In other words, the court must “identify medical or surgical care covered by the plan that is analogous to the mental health . . . care for which the plaintiffs seek benefits.” Brian J. v. United Healthcare Ins. Co., ___ F. Supp. 3d ____, No. 4:21-cv-00042, 2023 WL 2743097, at *8 (D. Utah Mar. 31, 2023) (citation omitted). Even if there is no clear analog, “benefits plans subject to the Parity Act ‘should not be able to exclude mental health treatments only because a clear analog does not exist.’” Johnathan Z. v. Oxford Health Plans, No. 2:18-cv-00383, 2020 WL 607896, at *15 (D. Utah Feb. 7, 2020) (citation omitted). 266 29 C.F.R. § 2590.712(c)(4)(i) (emphasis added). 267 See Doe v. Intermountain Healthcare, Inc., No. 2:18-cv-00807, 2023 WL 5395526, at *26 (D. Utah Aug. 22, 2023) (“[T]he Parity Act requires comparability, not equality, between limitations.”). 268 Peter M., 554 F. Supp. 3d at 1227 (citing Michael D., 369 F. Supp. 3d at 1174). 38 language or the processes of the plan) or as-applied (in operation via application of the plan).”269 The claimant carries the burden to show by a preponderance of the evidence that a plan’s “limitations on mental health care are . . . more restrictive than the medical surgical analogs[.]”270 It is undisputed the Plan is subject to the Parity Act and covers mental health care and medical/surgical treatments.271 At issue is whether Premera applies more restrictive limitations on claims for mental health benefits compared to medical/surgical care. To this end, Plaintiffs contend Premera committed a facial violation in four ways.272 A. Plaintiffs Have Not Demonstrated Standing to Assert a Parity Act Violation as to Inpatient Hospice Care. Plaintiffs first contend Premera applies more restrictive limitations to residential treatment than for analogous medical/surgical care because of how it analyzes inpatient hospice care. Before addressing this argument, the court must determine if Plaintiffs have standing.273 “There is no ERISA exception to Article III” of the United States Constitution.274 Article III standing requires the claimant to show that: “(1) she has suffered an actual or threatened injury in fact; (2) the injury is causally connected to the conduct complained of; and (3) it is 269 Brian J., 2023 WL 2743097, at *8 (citation omitted). M.Z. v. Blue Cross Blue Shield of Ill., No. 1:20-cv-00184, 2023 WL 2634240, at *21 (D. Utah Mar. 24, 2023); see Stone v. UnitedHealthcare Ins., 979 F.3d 770, 774 (9th Cir. 2020); James C. v. Anthem Blue Cross & Blue Shield, No. 2:19-cv-00038, 2021 WL 2532905, at *20 (D. Utah June 21, 2021), appeal dismissed, No. 21-4089 (10th Cir. Nov. 30, 2021); Kevin D. v. Blue Cross & Blue Shield of S.C., 545 F. Supp. 3d 587, 613 (M.D. Tenn. 2021), appeal dismissed, No. 21-5703, 2021 WL 6689154 (6th Cir. Nov. 19, 2021). 271 See, e.g., ECF No. 79-11, at 356–457. 272 Plaintiffs originally argued that Premera violated the Parity Act in seven ways. Pls.’ Mot. Summ. J. 31–35. However, Plaintiffs concede three of their arguments. See Pls.’ Reply in Support Mot. Summ. J. (“Pls.’ Reply”) 12, ECF No. 74, filed May 2, 2023 (conceding whether Premera violates MHPAEA because InterQual Criteria do not advise reviewers to consider a patient’s safety if they are discharged from residential treatment, whether the Plan excludes wilderness programs from coverage, and whether the Plan imposes differing standards of review for external reviewers). 273 “[S]tanding is a component of this court’s jurisdiction, and [it is] obliged to consider it sua sponte to ensure the existence of an Article III case or controversy.” Dias v. City & Cnty. of Denver, 567 F.3d 1169, 1176 (10th Cir. 2009); see Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986). 274 Thole v. U.S. Bank N.A., 590 U.S. ____, 140 S. Ct. 1615, 1622 (2020). 270 39 likely, and not merely speculative, that [the] injury will be redressed by a favorable decision.”275 For causation, a claimant must show a “nexus between the allegedly violative language and [the plan administrator]’s decision to deny benefits.”276 “Redressability is established if ‘it is likely that the injury will be redressed by a favorable decision.’”277 Plaintiffs do not have standing to make this claim. They argue Premera imposes InterQual Criteria to claims for mental health treatment at an RTC278 and to medical/surgical treatment at a skilled nursing facility (“SNF”) or an inpatient rehabilitation facility (“IRF”)279 but not to those for inpatient hospice. Yet the Plan does not allow for more than ten days’ coverage for hospice care.280 Meanwhile, Premera covered thirty days of RTC care at Elevations for C.B.281 Plaintiffs’ claim in this case is based on a lack of coverage from Day 31 forward. That Premera does not apply InterQual Criteria to inpatient hospice care for the maximum ten-day covered stay is entirely unrelated to Plaintiffs’ claim for much more lengthy coverage beyond ten days. Whether conceived as a lack of injury, causation, or redressability, Plaintiffs do not have standing. The facts of this case simply do not support it. B. Plaintiffs Have Not Otherwise Met their Burden to Show a Parity Act Violation. Next, Plaintiffs argue Premera violated the Parity Act in three other ways. They assert the medical necessity criteria for residential treatment under the InterQual Criteria are more 275 Jonathan Z. v. Oxford Health Plans, No. 2:18-cv-00383, 2022 WL 2528362, at *18 (D. Utah July 7, 2022) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)). 276 Id. 277 Frank v. Lee, ___ F.4th ____, No. 21-8058, 2023 WL 6966156, at *9 (10th Cir. Oct. 23, 2023) (quoting Kitchens v. Herbert, 755 F.3d 1193, 1201 (10th Cir. 2014)). 278 ECF No. 79-6, at 100–09. 279 Id. at 113–31. 280 ECF No. 79-11, at 370. 281 See supra note 82. 40 restrictive than for analogous skilled nursing or inpatient rehabilitation treatment.282 Next, they contend the medical necessity criteria for medical/surgical care at SNFs and sub-acute IRFs consider risk of relapse while the criteria for mental health/substance use disorder at sub-acute IRFs do not.283 Last, they claim the medical necessity criteria classify mental health/substance use disorder treatment longer than 15 days at an RTC as an “Extended Stay” that requires extra authorization and evaluation unlike criteria for medical/surgical treatment at an SNF or IRF.284 Premera responds by arguing MHPAEA does not require identical coverage criteria for analogous mental health and medical/surgical services. It asserts the Plan criteria focus on the appropriate level of care285 and thus the policies are in parity. The InterQual Criteria state that they “are derived from the systematic, continuous review and critical appraisal of the most current evidence-based literature and include input from [an] independent panel of clinical experts.”286 Written by a panel of 1,100 doctors and referencing 16,000 medical sources,287 the criteria are “nationally recognized, third-party guidelines.”288 They provide “structure for analyzing a patient’s particular symptoms, diagnoses, risks, and circumstances to determine what level of care is medically necessary.”289 “Federal courts across Pls.’ Mot. Summ. J. 32 (comparing ECF No. 79-6, at 100–09, 113–31, with ECF No. 79-11, at 262–65). Id. at 32–33 (comparing ECF No. 79-6, at 100–09, 113–31, with ECF No. 79-11, at 244–323). 284 Id. at 34 (comparing ECF No. 79-11, at 264–65, with ECF No. 79-6, at 100–09, 113–31). 285 See Def.’s Opp’n 22–23 (noting “the patient’s symptoms and the least intensive services required to treat them” (citing ECF No. 79-11, at 245–85)). 286 ECF No. 79-11, at 245; see Winter ex rel. United States v. Gardens Reg’l Hosp. & Med. Ctr., Inc., 953 F.3d 1108, 1115 (9th Cir. 2020). 287 Norfolk Cnty. Ret. Sys. v. Cmty. Health Sys., Inc., 877 F.3d 687, 690 (6th Cir. 2017). 288 Stephanie C. v. Blue Cross Blue Shield of Mass. HMO Blue, Inc., 852 F.3d 105, 114 (1st Cir. 2017); see Julie L. v. Excellus Health Plan, Inc., 447 F. Supp. 3d 38, 43 (W.D.N.Y. 2020) (“The InterQual Criteria are nationally recognized, third-party guidelines designed to ‘help healthcare organizations assess the safest and most clinically appropriate care level for more than 95% of reasons for admission.’” (citation omitted)). 289 Stephanie C., 852 F.3d at 114; see ECF No. 79-11, at 245 (“[InterQual Criteria] [are] intended solely for use as screening guidelines with respect to medical appropriateness of healthcare services.”). 282 283 41 the country have recognized the widespread adoption of InterQual Criteria and ‘district courts routinely find that InterQual’s criteria comport with generally accepted standards of care.’”290 As noted above, Plaintiffs assert three differences between the InterQual Criteria for RTC care and criteria for analogous medical/surgical care at SNFs or IRFs, contending that there is a disparity between the criteria on weekly serious psychiatric symptoms, risk of decline or relapse, and extended stay criteria. 291 Yet Plaintiffs do little beyond identifying these differences. They summarily conclude in a few sentences that the medical necessity criteria for one type of care “are more stringent,” are “more restrictive,” and “make[] it more difficult” to obtain coverage than for others.292 What is more, after Premera responds, Plaintiffs limit their reply to briefly addressing only the alleged weekly-symptoms disparity.293 This is not enough to satisfy their burden. This case is not at the pleadings stage, where plausibility is the standard. To establish a Parity Act violation, Plaintiffs must demonstrate, by a preponderance of the evidence, that mental health coverage is being treated more restrictively than its medical/surgical analogues. On this record, simply noting that criteria used for evaluating medical necessity for different illnesses and injuries have one or more differences is necessary, but not sufficient, to prevail on such a claim under the preponderance standard. As a general matter, simply “imposing different medical criteria for coverage based on the illness or ailment ‘is not an impermissible disparity; it is a 290 S.L. by & through J.L. v. Cross, ___ F. Supp. 3d ____, No. C18-1308, 2023 WL 3738991, at *10 (W.D. Wash. May 31, 2023) (quoting N.F. by & through M.R. v. Premera Blue Cross, No. C20-956, 2021 WL 4804594, at *4 n.4 (W.D. Wash. Oct. 14, 2021)) (citing Winter, 953 F.3d at 1114–15; Griffin v. Do-Williams, No. C16-1435, 2019 WL 3975358, at *8 (E.D. Cal. Aug. 22, 2019), aff’d, 846 F. App’x 518 (9th Cir. 2021) (unpublished); Norfolk Cnty., 877 F.3d at 690; Stephanie C., 447 F. Supp. 3d 38); see E.W. v. Health Net Life Ins. Co., No. 2:19-cv-00499, 2021 WL 4133950, at *7 (D. Utah Sept. 10, 2021). 291 Pls.’ Mot. Summ. J. 32–34. 292 Id. at 32, 33, 34. 293 Pls.’ Reply 11–12. 42 logical consequence of the undeniable reality that every illness is inherently different and requires different treatment.’”294 Of course, depending on the record, different criteria used in different areas certainly can result in impermissible disparities. Here, Plaintiffs fail to show how treatment limitations on mental health/substance use disorders benefits are more restrictive than the limitations for medical/surgical analogs. They bear the burden to do so. For this reason, on this record, the court must deny Plaintiffs summary judgment and grant Premera summary judgment on the Parity Act claim. ORDER Accordingly, the court GRANTS IN PART, DENIES IN PART, and DISMISSES IN PART Plaintiffs’ Motion for Summary Judgment;295 and GRANTS IN PART and DENIES IN PART Defendant’s Motion for Summary Judgment.296 1. For Count I, the court GRANTS IN PART Plaintiffs’ motion and DENIES Defendant’s motion. The court REMANDS to Defendant for further review of Plaintiffs’ benefits claim consistent with this Memorandum Decision and Order. 2. For Count II, the court DISMISSES IN PART and DENIES IN PART Plaintiffs’ motion and GRANTS IN PART and DENIES IN PART Defendant’s motion. The court DISMISSES Plaintiffs’ Parity Act claim as to inpatient hospice care for lack of standing. Summary judgment is DENIED for Plaintiffs and GRANTED for Defendant on Plaintiffs’ other Parity Act claims. 294 Doe, 2023 WL 5395526, at *26 (quoting James C., 2021 WL 2532905, at *20); see Jonathan Z., 2022 WL 2528362, at *17 (citing 29 U.S.C. § 1185a(a)(3)(A)). 295 ECF No. 70. 296 ECF No. 85. 43 Signed November 3, 2023. BY THE COURT ________________________________________ David Barlow United States District Judge 44

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