Pelafigue v. Blue Cross and Blue Shield of Texas

Filing 152

MEMORANDUM RULING GRANTING 128 MOTION for Summary Judgment filed by Michael J P; DENYING 138 Cross MOTION for Summary Judgment Pursuant to Federal Rule of Civil Prcedure 56 filed by Blue Cross & Blue Shield of Texas, Energy Transfer G P L P Louisiana, Energy Transfer Partners G P L P Health & Welfare Program for Active Employees. The issue of damages and remedies will be deferred for further briefing. Signed by Judge James D Cain, Jr on 5/8/2020. (crt,Jones, P)

Case 2:17-cv-00764-JDC-PJH Document 152 Filed 05/08/20 Page 1 of 20 PageID #: 19760

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION

MICHAEL P.

CASE NO. 2:17-CV-00764

VERSUS

JUDGE JAMES D. CAIN, JR.

BLUE CROSS AND BLUE SHIELD OF
TEXAS, ET AL.

MAGISTRATE JUDGE HANNA

MEMORANDUM RULING
Before the court are memoranda filed by plaintiff Michael P. and defendants Blue
Cross & Blue Shield of Texas; Energy Transfer Partners GP, L.P.; and Energy Transfer
Partners GP, L.P. Health & Welfare Program for Active Employees. The memoranda are
filed under the court’s ERISA case order and relate to plaintiff’s challenge to a denial of
benefits under an ERISA plan.
I.
BACKGROUND
This suit arises from the denial of coverage for acute inpatient mental health services
for plaintiff’s daughter, M.P. Defendants provided coverage for eleven days of inpatient
treatment and then determined that further inpatient services were not medically necessary,
though M.P. continued to treat as an inpatient. Plaintiff appealed the denial of benefits
through internal and external review procedures with the claim administrator. He now files
suit in this court, alleging that the denial of benefits was an abuse of the claim
administrator’s discretion.

Case 2:17-cv-00764-JDC-PJH Document 152 Filed 05/08/20 Page 2 of 20 PageID #: 19761

A. The ERISA Plan
At all times relevant to this matter, plaintiff was employed by Energy Transfer
Partners GP, L.P. Because of this employment, plaintiff and M.P. were insured under the
Energy Transfer Partners Health and Welfare Program for Active Employees (“the plan”),
a self-funded employee benefit plan within the meaning of the Employee Retirement
Income Security Act of 1974 (“ERISA”). See doc. 31, att. 1. Blue Cross Blue Shield of
Texas (“BCBSTX”) acts as claim administrator for the plan and has authority to interpret
plan terms and determine benefits. Doc. 38, att. 1, p. 75 (BCBSTX0074).
Medical services are only covered under the plan if they are “Medically Necessary
as determined by the Claim Administrator.” Id. at 16 (BCBSTX0015). The plan sets forth
criteria for defining medically necessary services. Id. at 62 (BCBSTX 0061). It also
provides that the medical staff of the claim administrator will determine medical necessity
under the plan. Id.
B. The Challenged Decision
M.P., who was eighteen at the time of the challenged decision, has a long history of
suicide attempts and hospital stays through her later teen years. Doc. 44, att. 1, pp. 304–10
(BCBSTX3871–77). She was admitted to the Menninger Clinic (“Menninger”) in Houston,
Texas, on January 26, 2016, for inpatient mental health treatment. Doc. 42, att. 2, pp. 108–
19 (BCBSTX0280–91). Her admission to Menninger followed two suicide attempts in the
preceding month. Id. at 18, 108–19 (BCBSTX0190, BCBSTX0280–91); see doc. 43, att.
9, p. 264 (BCBSTX3196).

-2-

Case 2:17-cv-00764-JDC-PJH Document 152 Filed 05/08/20 Page 3 of 20 PageID #: 19762

BCBSTX used the Milliman Care Guidelines (“MCG” or “Guidelines”) to evaluate
medical necessity of M.P.’s treatment. See, e.g., doc. 43, att. 5, pp. 253–54
(BCBSTX2048–49). Under these guidelines BCBSTX authorized inpatient treatment from
January 26 through January 31, and then authorized five more days of inpatient treatment
through February 5, 2016. Doc. 44, att. 7, pp. 16, 19 (BCBSTX4900, BCBSTX4903). On
February 8, 2016, Menninger requested that BCBSTX authorize an additional four days of
inpatient treatment – from February 6 through February 10, 2016. Doc. 42, att. 2, pp. 108–
09 (BCBSTX0280–81). After a review conducted by BCBSTX medical director Dr.
Thomas Krajewski, encompassing medical records and consultation with M.P.’s treating
psychiatrist at Menninger, BCBSTX denied the requested services as no longer medically
necessary. Id. Plaintiff received notice of this determination but M.P. continued to receive
treatment from Menninger’s inpatient program through March 21, 2016. See doc. 42, att.
1, pp. 2–4 (BCBSTX0088–90); doc. 44, att. 7, pp. 3–20 (BCBSTX4887–4904). M.P. then
treated as an intensive outpatient at Westend Hospital in Jennings, Louisiana, from April
17 through May 31, 2016. Doc. 44, att. 1, p. 310 (BCBSTX3877); doc. 45, att. 7, p. 280
(BCBSTX7888). There is no apparent dispute as to coverage for her treatment at that
facility. Plaintiff states that, as of April 2020, M.P. has not made another suicide attempt
since her discharge from Menninger. Doc. 146, p. 8.
C. Appeals Process
Menninger appealed BCBSTX’s denial of coverage on April 11, 2016. Doc. 43, att.
9, p. 66 (BCBSTX2998). The appeal was handled by BCBSTX medical director Dr.
Timothy Stock. Doc. 42, att. 2, pp. 104–06 (BCBSTX0276–78). Dr. Stock reviewed M.P.’s
-3-

Case 2:17-cv-00764-JDC-PJH Document 152 Filed 05/08/20 Page 4 of 20 PageID #: 19763

medical records and affirmed the decision on May 9, 2016. Id. BCBSTX then received an
internal appeal from plaintiff on July 11, 2016. See doc. 44, att. 7, pp. 2–3 (BCBSTX4886–
87). In connection with this appeal, another review was conducted by BCBSTX medical
director Dr. Thomas Allen. Id. Dr. Allen also affirmed the determination based on his
consideration of M.P.’s medical records. Id.
On July 24, 2016, plaintiff requested an independent external review (“IER”). Doc.
44, att. 10, pp. 17–20 (BCBSTX5804–07). In support of this request he submitted letters
from M.P.’s treating providers at Menninger and Westend, who supported the necessity of
M.P.’s extended treatment at Menninger. Doc. 45, att. 6, pp. 63–64 (BCBSTX7361–62);
doc. 45, att. 7, p. 274 (BCBSTX7882). On August 16, 2016, Dr. Stock conducted a preIER review, reaffirmed the coverage determination, and submitted M.P.’s claim to an
independent review organization. See doc. 42, att. 2, pp. 9–10 (BCBSTX0181–82). Dr.
Ragy Girgis, a psychiatrist employed by the independent review organization, reviewed
the claim file and issued a decision on September 16, 2016. Id. at 16–20 (BCBSTX0188–
92). He partially overturned the denial, finding that five additional days of inpatient
treatment – from February 6 to February 10, 2016 – should have been authorized as
medically necessary but that coverage for the remaining thirty-nine days (until March 21,
2016) was appropriately denied. Id.
D. District Court Suit
Plaintiff then filed suit in the Fourteenth Judicial District Court, Calcasieu Parish,
Louisiana, seeking a reversal of BCBSTX’s coverage decision for those thirty-nine days
of inpatient treatment. Doc. 1, att. 1. BCBSTX removed the suit to this court based on
-4-

Case 2:17-cv-00764-JDC-PJH Document 152 Filed 05/08/20 Page 5 of 20 PageID #: 19764

federal question jurisdiction and diversity of citizenship. On the former basis, BCBSTX
noted that plaintiff’s claims arise under ERISA, 29 U.S.C. § 1001 et seq., because plaintiff
is attempting to recover benefits and enforce rights under an employee welfare plan
governed by that statute. Doc. 1. Plaintiff agrees that ERISA governs this matter and that
an abuse of discretion standard applies to the court’s review of BCBSTX’s decisions. Doc.
115; see doc. 128, att. 1, p. 21. Under the court’s ERISA case order [doc. 106], the parties
have lodged the administrative record for this matter. See doc. 119. They have also filed
their memoranda relating to the plaintiff’s challenge. Docs. 128, 138, 146, 150.
Accordingly, the matter is now ripe for review.
II.
STANDARD OF REVIEW
When a claim is governed by ERISA, the district court serves an appellate role to
the appeal of the plan administrator’s decision. McCorkle v. Met. Life Ins. Co., 757 F.3d
452, 456 (5th Cir. 2014). Accordingly, the court’s latitude “is very narrowly restricted” by
ERISA regulations and case law. Id. Its review of factual issues is generally limited to the
evidence before the administrator at the time he rendered his decision. Vega v. Nat’l Life
Ins. Servs., Inc., 188 F.3d 287, 299 (5th Cir. 1999), abrogated on other grounds by Met.
Life Ins. Co. v. Glenn, 554 U.S. 105 (2008). Where the plan vests the administrator with
discretionary authority to determine eligibility for benefits and interpret and enforce the
provisions of the plan, the court’s standard of review is for abuse of discretion. White v.
Life Ins. Co. of N. Am., 892 F.3d 762, 767 (5th Cir. 2018). This is the “functional equivalent
of arbitrary and capricious review.” Conn. Gen. Life Ins. Co. v. Humble Surg. Hosp., LLC,

-5-

Case 2:17-cv-00764-JDC-PJH Document 152 Filed 05/08/20 Page 6 of 20 PageID #: 19765

878 F.3d 478, 483 (5th Cir. 2017) (internal quotations omitted). The plaintiff bears the
burden of showing that an abuse of discretion was committed. E.g., Dowden v. Blue Cross
& Blue Shield of Tex., Inc., 126 F.3d 641, 644 (5th Cir. 1997).
“A plan administrator abuses its discretion where the decision is not based on
evidence, even if disputable, that clearly supports the basis for its denial.” Holland v. Int’l
Paper Co. Ret. Plan, 576 F.3d 240, 246 (5th Cir. 2009) (internal quotations omitted).
Where the administrator’s decision is supported by substantial evidence and is not arbitrary
and capricious, it must be upheld. Ellis v. Liberty Life Assurance Co. of Boston, 394 F.3d
262, 273 (5th Cir. 2004). “Substantial evidence” amounts to “more than a scintilla, less
than a preponderance, and is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Anderson v. Cytec Indus., Inc., 619 F.3d 505, 512 (5th
Cir. 2010). The decision will only be found arbitrary if there is no “rational connection”
between the known facts and the decision, or between the facts found and the evidence.
Holland, 576 F.3d at 246–47. The court’s review “need not be particularly complex or
technical; it need only assure that the administrator’s decision fall somewhere on a
continuum of reasonableness—even if on the low end.” Vega, 188 F.3d at 297.
III.
APPLICATION
At issue in this matter is whether BCBSTX abused its discretion by determining that
M.P. did not qualify for continuing inpatient mental health treatment at Menninger past
February 10, 2016. To this end plaintiff alleges that BCBSTX (1) failed to consider or even
obtain relevant medical records; (2) applied incorrect or inapposite guidelines; and (3)

-6-

Case 2:17-cv-00764-JDC-PJH Document 152 Filed 05/08/20 Page 7 of 20 PageID #: 19766

applied those guidelines in an arbitrary and capricious manner. Doc. 128, att. 1. BCBSTX
maintains that its decision was made based on the appropriate guidelines and records, and
that its denial of benefits is supported by substantial evidence within the record. Doc. 138,
att. 1. It also asserts that plaintiff is not entitled to some of the remedies sought. Id.
A. Completeness of Record
Plaintiff challenges the denial based on the scope of records reviewed by
BCBSTX’s medical reviewers and the IER reviewer. Doc. 128, att. 1, pp. 42–44.
Specifically, he asserts that these reviewers failed to obtain all relevant that plaintiff listed
in the release he provided with his appeal. 1 He further argues that only limited weight
should be given to the reviewers’ opinions, because none of them examined M.P. firsthand
and because Doctors Stock, Allen, and Girgis (who handled the internal appeals and
external review, respectively) did not contact her treatment providers to discuss M.P.’s
condition.
The administrator “may not arbitrarily refuse to credit a claimant’s reliable
evidence, including the opinions of a treating physician.” Vercher v. Alexander &
Alexander, Inc., 379 F.3d 222, 233 (5th Cir. 2004) (internal quotations omitted). Still, the
administrator is not required to give the treating physician’s opinion special weight over
conflicting reliable evidence. Id. Claim administrators may reasonably rely on the opinions
of doctors who have reviewed the claimant’s medical files, even if they have not examined
the claimant or consulted with his treating physicians. Davis v. Unum Life Ins. Co. of Am.,
1

Plaintiff also argues that these records should be made part of the administrative record. Doc. 119. The court will
only review these records, which were not before the plan administrator at the time the challenged benefits
determinations were made, if it decides that BCBSTX committed a procedural error in failing to obtain them.

-7-

Case 2:17-cv-00764-JDC-PJH Document 152 Filed 05/08/20 Page 8 of 20 PageID #: 19767

444 F.3d 569, 577 (7th Cir. 2006). Reliance may be unreasonable, however, when the
expert conducting the review has not evaluated the patient but makes credibility
determinations

regarding

her

medical

history

and

symptomology.

Evans

v.

UnumProvidentCorp., 434 F.3d 866, 878 (6th Cir. 2006).
In this matter the first reviewer did consult with plaintiff’s treating psychiatrist.
Plaintiff argues that the subsequent reviewers’ “refusal to even try to contact [the] treating
providers is . . . indicative of arbitrary decision-making” and that the scope of their review
limits the weight it should be accorded. Doc. 128, att. 1, pp. 43–44. The court will consider
this omission with regard to any credibility determinations or assumptions, but does not
find it sufficient to make the entire process unworthy of deference.
As for the scope, plaintiff alleges that the reviewers erred by failing to obtain and
consider all relevant information to the claims and appeals. Specifically, he points out that
he listed Westend Hospital, Lake Charles Memorial Hospital, Longleaf Hospital, and
Women & Children’s Hospital (now Lake Area Medical Center) as providers with
documents relevant to the claims and provided a release for these providers.
An administrator’s failure to provide a reviewer with all relevant medical records
may support a finding that the administrator abused its discretion. Davis v. Aetna Life Ins.
Co., 2016 WL 9448704, at *4 (N.D. Tex. May 26, 2016), aff’d, 699 F. App’x 287 (5th Cir.
2017). ERISA, however, imposes no duty on plan administrators to collect every medical
record from every provider who has treated the patient. Vega, 188 F.3d at 298. Generally,
the plan participant is required to submit additional relevant information to the
administrator for consideration. Gaither v. Aetna Life Ins. Co., 394 F.3d 792, 804 (10th
-8-

Case 2:17-cv-00764-JDC-PJH Document 152 Filed 05/08/20 Page 9 of 20 PageID #: 19768

Cir. 2004). It thus remains incumbent on plaintiff to establish the relevance of these
records, their availability, and the administrator’s fault in ignoring them. 2 Id. at 804–06;
see also Topalian v. Hartford Life Ins. Co., 945 F.Supp.2d 294, 352–53 (E.D.N.Y. 2013).
Here the plan provides that a participant has the “option of presenting evidence and
testimony” when appealing a denial of benefits. Doc. 31, att. 1, pp. 25–26 (BCBSTX0024–
25). The appeal request form, which plaintiff completed on or about June 24, 2016,
instructed him to “[a]ttach additional information, Explanation of Benefits, Notification
Letter and/or medical records for the dates of service being appealed” and submit it with
the form to BCBSTX’s appeals section. Doc. 44, att. 1, p. 301 (BCBS3868). The next page
contained a release of medical records, which was signed by M.P. on June 26, 2016, and
authorized “the release to the Independent Review Organization of all necessary medical
records and other documents that are relevant to the review and are in the possession of the
Utilization Review Agent or any physician, hospital, or other health care provider.” Id. at
302 (BCBSTX3869). On July 8, 2016, BCBSTX informed plaintiff that the appeal was
under review and that he could expect a response in about thirty days. Id. at 311
(BCBSTX3878). It added that the “response may be delayed if more information is
needed,” and that plaintiff would be notified of “what is needed” if that happened. Id.

2

Defendants argue that the additional records are not relevant under 29 C.F.R. § 2560.503-1(m)(8). That regulation
defines a record as relevant to a benefits determination, in pertinent part, if it “was relied upon in making the benefit
determination” or “was submitted, considered, or generated in the course of making the benefit determination, without
regard to whether such document, record, or other information was relied upon in making the benefit determination.”
Hughes v. Hartford Life and Acc. Ins. Co., 368 F.Supp.3d 386, 394 (D. Conn. Mar. 25, 2019) (citing 29 C.F.R. §
2560.503-1(m)(8)(i)–(ii)) (cleaned up). The regulation’s definition, however, relates to the administrator’s obligation
to provide the claimant with copies of relevant records – not the scope of records on which the administrator or
reviewer should rely in the first place.

-9-

Case 2:17-cv-00764-JDC-PJH Document 152 Filed 05/08/20 Page 10 of 20 PageID #:
19769

Plaintiff argues that these forms and correspondence led him to believe that
BCBSTX would obtain records from the treatment providers he listed. He also maintains
that records from M.P.’s past psychiatric providers could provide greater understanding of
her subjective symptoms and her lack of responsiveness “to the ‘lesser forms of treatment’
the reviewers so readily concluded would be sufficient.” Doc. 128, att. 1, p. 35. It is clear
under the plan, however, that the participant bears the burden of submitting additional
relevant information in support of his appeal. As described infra, the record already
contained an account of M.P.’s history and prior treatment failures. Plaintiff does not show
where or how he explained the relevance of other providers’ records to a review of
BCBSTX’s determination for coverage of treatment at Menninger. Accordingly, he shows
no abuse of discretion through the scope of BCBSTX’s review.
B. Review of Decision
1. Use of Milliman Care Guidelines
Plaintiff first argues that BCBSTX “applied incorrect or inapposite guidelines” to
his claim. Doc. 128, att. 1, pp. 23–27. Specifically, he maintains that the Milliman Care
Guidelines (“MCG”) used by BCBSTX “are overly restrictive and designed for private
insurers . . . to use as a basis for denying coverage.” Id. at 23. He further asserts that the
MCG were unsuitable for the kind of non-acute, residential care M.P. was receiving at
Menninger. Id. at 24. Finally, he argues that BCBSTX erred by applying the MCG’s
admissions criteria to determine whether she should be discharged. Id. at 29–30.
Plaintiff implies that the MCG are unreliable because they are marketed to health
insurance companies. He also observes that the MCG “are notably not included in the Plan
-10-

Case 2:17-cv-00764-JDC-PJH Document 152 Filed 05/08/20 Page 11 of 20 PageID #:
19770

or otherwise mentioned in the Plan’s definition of ‘Medical Necessity.’” Id. at 23. The
MCG, however, appear to have sufficient support and acceptance from healthcare
providers. 3 They may also be used by plan administrators, though not explicitly referenced
in the plan, so long as they do not “change the definition of a term within a plan or
effectively add requirements to that definition.” Weiss v. Banner Health, 416 F.Supp.3d
1178, 1186 (D. Colo. 2019) (quoting E.R. v. UnitedHealthcare Ins. Co., 248 F.Supp.3d
348, 362 (D. Conn. 2017)).
Plaintiff’s main dispute with the MCG appears to be that they do not address “nonacute residential treatment levels of care,” a limitation recognized by other courts. Doc
128, att. 1, pp. 23–25; see Charles W. v. BlueShield of Or., 2019 WL 4736932, at *3–*6
(D. Utah Sep. 27, 2019) (citing H.N. v. Regence BlueShield, 2016 WL 7426496 (W.D.
Wash. Dec. 23, 2016)). Menninger advertises two kinds of treatment programs: inpatient
and outpatient. M.P. was admitted to the Compass program, which is advertised as a sixto eight-week inpatient program for young adults. 4 Doc. 43, att. 2, p. 11 (BCBSTX1052).
However, relevant Texas licensing requirements only distinguish between inpatient and

3

Hospitals generally use either the MCG or InterQual Criteria in determining whether a patient requires inpatient or
outpatient care. Norfolk Cnty. Ret. Sys. v. Cmty. Health Sys., Inc., 877 F.3d 687, 690 (6th Cir. 2017). Both systems
“were developed by independent companies with no financial interest in admitting more inpatients than outpatients,”
and the MCG was “written and reviewed by over 100 doctors and reference 15,000 medical sources.” Id. Accordingly,
as other courts have held, a reviewer with appropriate training and expertise may reasonably consider the MCG in
determining the necessity of a patient’s care. E.g., Becker v. Chrysler LLC Health Care Benefits Plan, 2011 WL
2601254, at *6 (E.D. Wis. June 30, 2011), aff’d, 691 F.3d 879 (7th Cir. 2012); Summersgill v. E.I. Dupont De Nemours
& Co., 2016 WL 94247, at *10 (D. Mass. Jan. 6, 2016).
4
E.g., Treatment for Young Adults, THE MENNINGER CLINIC, https://www.menningerclinic.org/treatment/treatmentfor-young-adults (last visited March 31, 2020); Menninger Compass Program, THE MENNINGER CLINIC,
https://www.menningerclinic.org/treatment/treatment-for-young-adults/inpatient-programs/compass-program (last
visited April 15, 2020).

-11-

Case 2:17-cv-00764-JDC-PJH Document 152 Filed 05/08/20 Page 12 of 20 PageID #:
19771

outpatient facilities and not between inpatient and residential treatment facilities. Tex.
Health & Safety Code § 571.003(12).
Under the BCBSTX plan’s terms, medically necessary mental health treatment is
also covered at residential treatment centers. See doc. 31, att. 1, pp. 60–66 (BCBSTX0059–
65). The MCG provisions at issue related to “inpatient care” and offered residential
treatment as an alternative lower level of care. Doc. 38, att. 1, pp. 74–76 (BCBSTX0160–
62). Plaintiff asserts that Menninger was covered as a residential treatment program and
that BCBSTX abused its discretion by failing to investigate the nature of services that M.P.
was receiving.
As defendants point out, however, Menninger consistently sought coverage for M.P.
at an acute inpatient level of care. See doc. 42, att. 2, pp. 98–119. At the conclusion of
M.P.’s treatment, M.P. and her family also considered discharge to a residential treatment
program but ultimately opted for an intensive outpatient program instead. See doc. 42, att.
2, pp. 74–76 (BCBSTX0246–48). Additionally, other courts have accepted the
classification of Menninger as an acute inpatient psychiatric facility and reviewed a denial
of benefits under that standard. E.g., Love v. Dell, Inc., 551 F.3d 333, 338 (5th Cir. 2008);
Joel S. v. Cigna, 356 F.Supp.3d 1305, 1308 (D. Utah 2018). Accordingly, plaintiff fails to
show that the MCG for inpatient care were ill-suited to the claims at issue or that BCBSTX
otherwise abused its discretion by allowing its reviewers to consider the guidelines. The
cases cited by plaintiff based on failure to provide coverage for residential treatment
likewise have no bearing on this matter.

-12-

Case 2:17-cv-00764-JDC-PJH Document 152 Filed 05/08/20 Page 13 of 20 PageID #:
19772

Finally, plaintiff complains that BCBSTX reviewers erred by applying “the
Admissions Guidelines, rather than the Discharge Guidelines” of the MCG. Doc. 128, att.
1, pp. 29–30. The relevant MCG provisions relate to determining necessity of admission
to inpatient care. They set a goal length of stay at five days but provide that a patient may
be discharged to a lower level of care sooner or later than the goal “when it is appropriate
for their clinical status and care needs.” Doc. 38, att. 1, p. 79 (BCBSTX0165). The section
also contains provisions relating to discharge, but these only set forth the tasks that
“[d]ischarge planning . . . may include[.]” Id. at 81 (BCBSTX0167). Accordingly, plaintiff
shows no error in the criteria applied.
2. Review of Decision
Finally, the court arrives at the heart of the matter: whether BCBSTX acted
arbitrarily or capriciously in determining M.P.’s inpatient treatment was not medically
necessary past February 10, 2016.
a. Relevant plan and MCG provisions
The plan defines a medically necessary service as one that is:
1. Essential to, consistent with, and provided for the diagnosis or the direct
care and treatment of the condition, sickness, disease, injury, or bodily
malfunction; and
2. Provided in accordance with and [is] consistent with generally accepted
standards of practice in the United States; and
3. Not primarily for the convenience of the Participant, his Physician,
Behavioral Health Practitioner, the Hospital, or the Other Provider; and
4. The most economical supplies or levels of service that are appropriate for
the safe and effective treatment of the Participant. When applied to
hospitalization, this further means that the Participant requires
acute care as a bed patient due to the nature of the services provided
or the Participant’s condition, and the Participant cannot receive
safe or adequate care as an outpatient.
-13-

Case 2:17-cv-00764-JDC-PJH Document 152 Filed 05/08/20 Page 14 of 20 PageID #:
19773

Doc. 31, att. 1, p. 62 (BCBSTX0061) (emphasis added).
M.P.’s discharge records identify her principal diagnoses as Borderline Personality
Disorder (“BPD”) (F60.3) and “Major Depressive Disorder, recurrent severe without
psychotic features” (F33.2). Doc. 43, att. 5, p. 208 (BCBSTX2003); doc. 44, att. 3, pp. 11–
13, 107 (BCBSTX4055–57, BCBSTX4151). BCBSTX considered the Milliman Care
Guidelines for inpatient care of Bipolar Disorder in determining the medical necessity of
her treatment. See doc. 38, att. 1, pp. 73–82 (BCBSTX0159–68). Plaintiff does not dispute
the suitability of these guidelines to M.P.’s diagnoses.
Under the relevant MCG, inpatient treatment is considered medically necessary if
(1) a patient risk exists and (2) the treatment situation is appropriate at that level (i.e., the
condition excludes a lower level of care). See doc. 38, att. 1, pp. 73–76 (BCBSTX0159–
62). Relevant here, inpatient care is justified based on an imminent danger of harm to self
where at least one of several listed conditions is present, including where there is
“[i]mminent risk for recurrence of a suicide attempt or act of serious self harm” as
evidenced by the patient’s “very recent” history of suicide attempts or acts of serious self
harm, and “absence of sufficient relief of the action’s precipitants.” Id. at 73–74
(BCBSTX0159–60). Additionally, inpatient care must be deemed the appropriate level for
the patient’s condition based on one or more conditions. These include where “voluntary
treatment at a lower level [is] not feasible (eg, very short-term crisis intervention or
residential care unavailable or unacceptable for patient condition).” Id. at 75
(BCBSTX0161).

-14-

Case 2:17-cv-00764-JDC-PJH Document 152 Filed 05/08/20 Page 15 of 20 PageID #:
19774

b. Application
Plaintiff argues that the reviewers abused their discretion by failing to consider each
element in the MCG and by misconstruing and ignoring evidence of risk at each level of
decision-making. He also maintains that the IER arbitrarily selected a cut-off date of
February 10, 2016. Under the standards described above, however, there is no requirement
that each reviewer catalog all evidence or negate each possible theory of risk. Instead, the
plaintiff must demonstrate the lack of substantial evidence supporting the plan
administrator’s ultimate decision.
Plaintiff’s real dispute appears to be with the findings that M.P.’s condition had
improved sufficiently as to her danger of suicide or self-harm by the last covered date. He
argues that, based on M.P.’s history and the record of her care at Menninger, there is
insufficient evidence to show that her condition no longer required inpatient care by
February 11, 2016. As he notes, M.P. had multiple suicide attempts and DUIs in the year
preceding admission. See doc. 44, att. 8, pp. 224, 230 (BCBSTX5351, BCBSTX5357);
doc. 44, att. 9, pp. 254, 275–77 (BCBSTX5731, BCBSTX5752–54). Her last suicide
attempt occurred just two days before her admission to Menninger, and she had had four
inpatient hospitalizations for suicide attempts in the last two to three years. E.g., doc. 43,
att. 9, p. 264 (BCBSTX3196).
According to BCBSTX, M.P. met the MCG criteria for admission to inpatient care
on January 27, 2016, and was renewed for another five days on February 1. Doc. 42, att. 2,
pp. 115–18 (BCBSTX0287–90). On both dates the reviewer specifically noted, among
other things, “ongoing [suicidal ideation]” after M.P.’s most recent suicide attempt and
-15-

Case 2:17-cv-00764-JDC-PJH Document 152 Filed 05/08/20 Page 16 of 20 PageID #:
19775

severe symptoms as evidenced by “paranoid and [auditory hallucinations,] impaired
insight, judgement [sic], and coping skills.” Id. On February 8, 2016, M.P.’s treating
psychiatrist (Dr. Joyce Davidson) told BCBSTX reviewer Dr. Krajewski that M.P. had
“been denying [suicidal ideation] for a while now” and would “probably not meet acute
criteria.” Id. at 108 (BCBSTX0280). Accordingly, Dr. Krajewski found that inpatient care
was not medically necessary past February 5 and that M.P. could “safely be treated in a
lower level of care, such as [Mental Health] Outpatient[.]” Id. As part of the IER, however,
Dr. Girgis considered a letter from Dr. Davidson endorsing the necessity of the entire
length of M.P.’s inpatient treatment and explaining its benefits in light of her treatment
history. Doc. 44, att. 9, p. 254 (BCBSTX5731). Specifically, Dr. Davidson noted:
[M.P.] is an 18-year-old who presented at Menninger with profound
apathy, depression, and inertia. She had decreased appetite, decreased
energy, difficulty concentrating, [and] feelings of worthlessness and
hopelessness. She reported poor sleep in the days prior to admission and was
beginning to experience paranoia. . . .
It is my opinion that [M.P.] needed this level of care in order to
provide her with the safety and security to openly address her difficulties.
Her profound depression was complicated by a serious substance abuse
problem that increased the likelihood of a completed suicide. This very
troubled young woman had significant mood problems that required a
high level of structure and containment. In my opinion, this treatment was
medically necessary to prevent future harm to her. In my opinion, her
treatment was appropriate in terms of type, duration, and level of care.
Id. (emphasis added). Another of M.P.’s treatment providers from Menninger, psychologist
Dr. Shweta Sharma, also endorsed the length of treatment. Id. at 253 (BCBSTX5730). Dr.
Sharma emphasized M.P.’s recent history of hospitalizations and suicide attempts, as well
as her report of “minimal benefits from outpatient treatment.” Id.

-16-

Case 2:17-cv-00764-JDC-PJH Document 152 Filed 05/08/20 Page 17 of 20 PageID #:
19776

Upon completion of the IER, Dr. Girgis found that additional days of inpatient care
were justified based on M.P.’s prior hospitalizations and recent suicide attempts.
Specifically, he stated that M.P. “was still a danger to self because not only was there was
a recent suicide attempt that had to be addressed but the member has shown a continued
pattern of suicidal ideation, which needed to be addressed to prevent [her] from being a
continued threat to self.” Doc. 42, att. 2, p. 18 (BCBSTX0190). He also repeated the
findings that M.P. had received “minimal benefits” from outpatient care in the past and that
her stay at Menninger had “dramatically altered the course of illness in a way local
hospitalizations were not able to do.” Id. Nonetheless, he found that M.P. did not “meet the
MCG criteria for continued treatment at a mental health inpatient program” beyond
February 10, 2016, and that the remaining dates of services at Menninger were not
“medically necessary or appropriate” for her treatment. Id.
M.P. presented at Menninger with test scores indicating severe depression and
anxiety, impulsivity, poor well-being, and emotional dysregulation. Doc. 43, att. 2, pp. 43–
46 (BCBSTX1084–7). At the time of admission, M.P. rated her desire to live as a 3 on a
scale of 0-8 and her desire to die as a 6 on the same scale. Id. at 46 (BCBSTX1087). While
M.P. showed mild to moderate improvement in some of her psychometric scores by
February 10, her depression was still rated in the severe range by that date. See id. at 49–
51 (BCBSTX1090–92). At that time she also rated both her desire to live and her desire to
die as a 4 out of 8. Id. at 106 (BCBSTX1147). Menninger assessed M.P.’s “[d]anger to
self/others” as having stabilized by February 2, 2016. Doc. 43, att. 10, p. 2 (BCBSTX3243).
Over the next week, this state continued. Id. at 3–58 (BCBSTX3244–99).
-17-

Case 2:17-cv-00764-JDC-PJH Document 152 Filed 05/08/20 Page 18 of 20 PageID #:
19777

M.P. displayed occasional episodes of irritability or blunted affect, but also reported
an improving mood. Id. On February 9, M.P. was tearful and having difficulty adjusting to
a new SSRI but denied any suicidal ideation or intent. Doc. 43, att. 8, pp. 70–71
(BCBSTX2702–03). The following day, M.P. appeared more engaged during her
assessments. Id. at 73–77 (BCBSTX2705–09). She also reported improved mood and
sleep. Id. Treatment notes show that her risk level at Menninger was downgraded from
Level of Responsibility 1 to Level 2 by February 11, based on a request from February 9.
Id. at 82 (BCBSTX2714). It was then downgraded from Level 2 to Level 3 (the lowest
level) by February 17, 2016. Doc. 43, att. 2, p. 192 (BCBS1233). After this change her risk
level remained the same until her discharge on March 21, 2016. See doc. 44, att. 1, pp.
292–95 (BCBSTX3859–61).
Based on the above, there was some evidence to support BCBSTX’s implicit
determination that M.P. no longer posed an “imminent risk” of suicide or self-harm by the
last covered date and/or that a lower level of care might have been feasible. The question
here, however, is whether that evidence amounted to a substantial amount in support of a
denial of benefits.
Defendants assert that allowing M.P.’s history to guide the determination is illadvised, because “under that reasoning, M.P. would remain in acute inpatient care for the
rest of her life.” 5 Doc. 150, p. 4. But they appear to forget that her inpatient care did

5

Defendants also suggest that M.P. could always have returned to acute inpatient care if her condition worsened, in
reliance on dicta in Ariana M. v. Humana Health Plan of Texas, Inc., 2018 WL 4384162, at *16 (S.D. Tex. Sep. 14,
2018), aff’d, 792 F. App’x 287 (5th Cir. 2019). Doc. 150, p. 4. Ariana M. involved a patient with a history of eating
disorders and self-harm, though not suicide attempts, challenging a determination that only outpatient care was
appropriate after seven weeks of partial hospitalization. A “worsening” of condition necessitating M.P.’s return to

-18-

Case 2:17-cv-00764-JDC-PJH Document 152 Filed 05/08/20 Page 19 of 20 PageID #:
19778

conclude less than six weeks later. M.P. then completed intensive outpatient treatment at
Westend without returning to inpatient care. Furthermore, plaintiff represents that M.P. has
improved dramatically since her treatment in 2016, with no further suicide attempts, and
will soon be graduating college. Doc. 146, p. 8.
M.P.’s treatment providers at Menninger endorsed a longer stay, believing that her
recurrent suicide attempts required acute inpatient care and could not be addressed through
a short-term stay or lower level of care. M.P.’s evaluations from around the time of the last
covered date showed only modest improvement and she was not downgraded to the lowest
level of responsibility at her acute inpatient facility until February 17. While M.P. denied
suicidal ideation and appeared to be adjusting well to the program, she was still severely
depressed by the last covered date and expressed ambivalence on her desire to live or die.
The reviewers seem to have seized upon any indication that M.P. did not have active
suicidal ideations as signifying an end to the risk that had justified her admission, even
though (1) there were clear signs that she still relied on the restrictions of an inpatient
setting, (2) she had attempted suicide again after several prior inpatient stays, (3) her
treating providers did not believe she could stop her cycle of suicidal and self-harming
behavior without a longer stay, and (4) her treating psychiatrist believed that she posed an
increased risk of completing suicide based on her history and comorbid substance use
disorder. While Dr. Girgis acknowledged some of these factors in his rationale for allowing
an additional five days of coverage, neither he nor the record provides adequate

acute inpatient care could well be life-threatening. Any medical necessity finding in her case should not so easily rely
on being shuffled between levels of care if the plan administrator’s determination proved premature.

-19-

Case 2:17-cv-00764-JDC-PJH Document 152 Filed 05/08/20 Page 20 of 20 PageID #:
19779

justification for cutting off coverage so far short of the recommended treatment. Instead,
his decision to extend coverage for only five additional days stands in direct opposition to
these risks and to his agreement that M.P.’s completed stay at Menninger had “dramatically
altered the course of [her] illness” in a way previous treatment could not. Doc. 42, att. 2,
p. 18 (BCBSTX0190). Accordingly, the evidence was insufficient to support a denial of
benefits and the plan administrator’s decision must be overturned.
C. Requested Remedies
The parties agree that the amount unpaid under the denied claims is $37,136.36.
Plaintiff also seeks an award of prejudgment interest and attorney fees, which defendants
oppose. Both remedies are available, at the court’s discretion, in ERISA cases. See, e.g.,
Tesch v. Prudential Ins. Co. of Am., 829 F.Supp.2d 483, 499–502 (W.D. La. 2011). Plaintiff
requests that he be allowed to submit a supplemental brief on remedies. The court will
grant that request and set a briefing schedule in the attached judgment.
IV.
CONCLUSION
For the reasons stated above, plaintiff’s Motion for Summary Judgment [doc. 128]
will be GRANTED and defendants’ motion [doc. 138] will be DENIED. The issue of
damages and remedies will be deferred for further briefing.
THUS DONE AND SIGNED in Chambers, on this 8th day of May, 2020.

____________________________________
JAMES D. CAIN, JR.
UNITED STATES DISTRICT JUDGE

-20-