Jane Doe v. Harvard Pilgrim Health Care, Inc. et al

Filing 70

Judge Denise J. Casper: ORDER entered. MEMORANDUM AND ORDER - The Court DENIES Jane's motion for summary judgment, D. 56, and ALLOWS HPHC's motion for summary judgment, D. 63.(Hourihan, Lisa) (Main Document 70 replaced on 10/11/2017 to correct typographical error) (Hourihan, Lisa).

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
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JANE DOE,
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Plaintiff,
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v.
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HARVARD PILGRIM HEALTH CARE, INC., )
Civil Action No. 15-10672
et al.,
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)
Defendants.
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)
__________________________________________)
MEMORANDUM AND ORDER
CASPER, J.
I.

October 11, 2017

Introduction
Plaintiff Jane Doe (“Jane”) has filed this lawsuit against Defendants Harvard Pilgrim

Health Care, Inc., and the Harvard Pilgrim PPO Plan Massachusetts, Group Policy Number
0588660000 (collectively “HPHC”) under the Employee Retirement Income Security Act of 1974
(“ERISA”), 29 U.S.C. § 1132(a)(1)(B), challenging HPHC’s partial denial of health insurance
benefits for residential mental health treatment. D. 1. Both Jane and HPHC have moved for
summary judgment. D. 56; D. 63. For the reasons stated below, the Court ALLOWS HPHC’s
motion for summary judgment, D. 63, and DENIES Plaintiff’s motion for summary judgment, D.
56.

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II.

Factual Background
Unless otherwise noted, all facts are undisputed and are drawn from the administrative

record (“AR”) filed by HPHC, D. 36,1 and the parties’ Statements of Facts, D. 56-1; D. 63-1; D.
63-2; D. 63-3; D. 66. As explained further below, the Court will only consider the portions of the
record prepared prior to and including March 12, 2013.
A.

Coverage under the Plan

At all relevant times, Jane was a dependent beneficiary of a participant in an HPHC group
health benefit plan (the “Plan”). D. 1 ¶ 4. Her father was a member of the Plan through his
employer. D. 1 ¶¶ 6-7. The Plan provides coverage for inpatient care, intermediate care and
outpatient mental health care only “to the extent Medically Necessary.” D. 1 ¶ 9; AR at 35-37.
“Intermediate mental health care services” that have been deemed medically necessary—a
category that includes “[a]cute residential treatment” and partial hospitalization programs—are
covered in full. AR at 79. According to HPHC’s Benefit Handbook, HPHC “use[s] clinical review
criteria to evaluate whether certain services or procedures are Medically Necessary for a Member’s
care.” AR at 19. The Plan defines medical necessity as follows:
[t]hose health care services that are consistent with generally accepted principles of
professional medical practice as determined by whether: (a) the service is the most
appropriate supply or level of service for the Member's condition, considering the
potential benefit and harm to the individual; (b) the service is known to be effective,
based on scientific evidence, professional standards and expert opinion, in
improving health outcomes; and (c) for services and interventions that are not
widely used, the use of the service for the Member's condition is based on scientific
evidence.
AR at 21-22.

1

The Court recognizes that the parties dispute the contents of the AR and the Court addresses that
matter more fully in Section V(A), infra.
2

At the time of Jane’s treatment, HPHC contracted with United Behavioral Health (“UBH”)
to manage mental health benefits and review initial coverage determinations for HPHC members.
D. 63-2 ¶ 7; D. 66 ¶ 7. To determine whether a mental health treatment was medically necessary,
HPHC employed UBH’s Optum Level of Care Guidelines. D. 56-1 ¶ 2; D. 63-2 ¶ 7. According
to the Guidelines, a Residential Treatment Center “provides overnight mental health services to
members who do not require 24-hour nursing care and monitoring offered in an acute inpatient
setting but who do require 24-hour structure.” AR at 454. Residential Treatment Level of Care
requires that one of the following criteria be met:
(1) The member is experiencing a disturbance in mood, affect or cognition resulting
in behavior that cannot be safely managed in a less restrictive setting; or (2) There
is an imminent risk that severe, multiple and/or complex psychosocial stressors will
produce significant enough distress or impairment in psychological, social,
occupational/educational, or other important areas of functioning to undermine
treatment in a lower level of care; or (3) The member has a co-occurring medical
disorder or substance use disorder which complicates treatment of the presenting
mental health condition to the extent that treatment in a Residential Treatment
Center is necessary.
Id. Additionally, continued treatment must meet six Continued Service Criteria that apply to all
levels of care, including, as is relevant here: (6) “The member’s current symptoms and/or history
provide evidence that relapse or a significant deterioration in functioning would be imminent if
the member was transitioned to a lower level of care.” AR at 459.
Upon receiving a determination from HPHC that certain treatment is not medically
necessary, a member may file an appeal. AR at 52. A claimant must file its appeal within 180
days of the date of service. AR at 51. Claimants appealing medical necessity determinations may
not appeal through the informal inquiry process; they must file formal appeals. AR at 52. For
denials of continued hospital care, members may also request an expedited review of their appeal.
AR at 54. If a member appeals a denial of continuation of coverage—and the claimant continues
to be a member under the Plan, the service was previously authorized by HPHC and the service
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was not terminated due to a benefit limit in the Handbook—HPHC continues coverage through
the completion of its internal appeal process. AR at 53.
The HPHC “Appeal Coordinator will try to obtain all information, including medical
records, relevant to the appeal.” Id. “The Appeal Coordinator will investigate the appeal and
determine if additional information is required from the Member. This information may include
medical records, statements from doctors, and bills and receipts for services the Member has
received.” Id. Appeals of medical necessity determinations are reviewed by “a health care
professional in active practice in a specialty that is the same as, or similar to, the medical specialty
that typically treats the medical condition that is the subject of the appeal” and had no participation
in any prior decision on the claimant’s appeal. Id. HPHC then makes decisions based on the
following criteria:
(1) the benefits and the terms and conditions of coverage stated in [the HPHC]
Handbook and Schedule of Benefits; (2) the views of medical professionals who
have cared for the Member; (3) the views of any specialist who has reviewed the
appeal; (4) any relevant records or other documents provided by the Member; and
(5) any other relevant information available to us.”
AR at 53-54. If HPHC affirms denial of coverage, the decision is sent to the claimant in a letter
also containing “the applicable clinical practice and review criteria information relied on to make
the decision,” the specific reasons the claimant’s medical condition, diagnosis and proposed
treatment fails to meet these criteria and any alternative treatment options HPHC would cover
instead. AR at 54.
If a formal internal appeal is denied, members may (1) request reconsideration of the
medical necessity determination by HPHC’s “review committee”; (2) file for external review by
an independent organization appointed by the Massachusetts Department of Public Health’s Office
of Patient Protection (OPP); or (3) pursue legal action. AR at 55. A claimant “must request
reconsideration within 15 days of the date of [HPHC’s] letter denying the appeal.” Id. A claimant
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may file for reconsideration before seeking an external review, or if the OPP has determined “an
appeal is not eligible for external review,” but HPHC “will not reconsider an appeal that has been
accepted for external review by [OPP].” AR at 56. Claimants may request that the review
committee consider additional documents or records for review and may choose to participate in
the meeting by phone. AR at 55. The “reconsideration process is voluntary and optional” and is
not required for a claimant’s exhaustion of administrative remedies. AR at 56.
A claimant may request external review by filing a request with OPP within four months
of receiving written notice of HPHC’s appeal decision. Id. The request for external review must
include several components, including the OPP application form and a “copy of [HPHC’s] final
appeal decision.” Id. OPP may also arrange for expedited external review, which a claimant may
request by including a written certification by a physician that a delay in providing the relevant
treatment would “pose a serious and immediate threat to the health of the insured.” Id. The HPHC
Handbook provides that “[t]he decision of the external review agency is binding, and [HPHC]
must comply with the decision.” Id.
B.

Jane’s Mental Health History

Jane suffers from schizoaffective disorder, post-traumatic stress disorder (“PTSD”),
anxiety, depression, personality disorder and a learning disorder. AR at 610-11. Jane’s mental
health issues began in 2012, during her freshman year of college. AR at 547, 577, 593. Jane
struggled with her college grades and roommate, whose behavior Jane described as “horrible.”
AR at 547. At the start of her second semester, Jane “began struggling with depression, anxiety,
[and] panic attacks that led her to feeling paralyzed and unable to get out of bed.” AR at 493, 577.
She sought help at the college infirmary and was prescribed Zoloft. AR at 493, 577, 593. She
then “became agitated” and “experienced sensations in her extremities that felt like snakes working

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their way to her heart to poison her.” AR at 493, 577. Her medication was changed to Celexa,
which worsened her agitation and delusions. AR at 493, 593.
In March 2012, Jane withdrew from her classes and returned home. AR at 547, 577, 593.
She was hospitalized for several days at McLean Hospital, where her medications were switched
to a combination of Abilify and Wellbutrin, which relieved her of her delusions. AR at 577, 593;
D. 56-1 ¶ 34; D. 63-3 ¶ 34. Her anxiety and depression, however, persisted. AR at 593. Jane
continued outpatient treatment with Audrey Rubin, M.D., who identified Jane’s symptoms as acute
psychosis, accompanied by a history of sexual trauma—a result of bullying by female peers at
summer camp at age twelve—and dyslexia. AR at 493, 577-78, 593, 600-01; D. 56-1 ¶ 36; D. 633 ¶ 36. Following a stable period, Jane again became psychotic that summer, and at the direction
of auditory hallucinations telling her to kill herself, went to the roof of her family home. AR at
493, 578. She considered jumping, but returned downstairs, concerned about upsetting her family.
Id. She was again hospitalized at McLean for one week in June 2012, where she was diagnosed
with psychotic disorder NOS and borderline personality disorder. AR at 177-80, 493.
Jane returned to college that fall. AR at 578, 593. Following the Thanksgiving holiday,
which she spent at home, Jane returned to school and experienced “what she described as a
hypomanic or manic episode.” Id. She began hearing auditory hallucinations and having suicidal
ideations. AR at 485, 510, 668. Her roommates and friends brought her to the emergency room.
AR at 593. She then experienced a series of conflicts with her peers. AR at 493, 578, 593. Jane’s
father came to her college for a week to support her attempt to complete the semester. AR at 493,
578, 602. She began Seroquel in December 2012. AR at 510. In January 2013, Dr. Rubin referred
her to the Austen Riggs Center (“Riggs”) for acute psychiatric residential treatment. AR at 483.

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C.

Jane’s Clinical Treatment at Riggs

On January 17, 2013, Jane was admitted to Riggs, an out-of-network facility, for residential
treatment. Id. At this time, HPHC’s behavioral health administrator, UBH, authorized coverage
for her treatment. AR at 226. HPHC provided coverage for Jane’s first few weeks at Riggs, until
February 12, 2013, when HPHC, on appeal, upheld its denial of continued coverage for Jane’s
residential treatment. AR at 441. Jane nevertheless remained at Riggs until June 18, 2013. D. 561 ¶ 26; D. 63-3 ¶ 26. On June 18th, Jane was discharged for inpatient treatment at Berkshire
Medical Center following an escalation of her symptoms, where she remained for six days. Id.
Jane seeks benefits payments for her residential treatment at Riggs from February 13, 2013 through
June 18, 2013. D. 56 at 1.
1.

Jane’s admission to Riggs on January 17, 2013

Upon admission to Riggs, Jane met with David Flynn, M.D., who conducted Jane’s initial
clinical assessment. AR at 485-91. Dr. Flynn documented Jane’s diagnosis as psychotic disorder
NOS, mood disorder NOS and non-verbal learning disorder. AR at 487. He listed Jane’s
“symptoms which mitigate against successful outpatient treatment” as including suicidal behavior,
self-destructive behavior, inability to live autonomously, depression and anxiety. AR at 487-89.
Jane’s medication regimen at the time of admission included Lamictal, Abilify and Seroquel. AR
at 486. Dr. Flynn noted that Jane “denied current suicidal ideation, intent, or plan.” Id. He deemed
her competent to make the decision to seek treatment in an open setting. AR at 486, 488. Dr.
Flynn recommended the IRP-G treatment plan, which revolves around group therapy and includes,
among other things, psychotherapy four times per week and 24-hour nursing observation. AR at
490. He noted Jane’s “[a]nticipated length of stay” was “[s]ix weeks evaluation and treatment
admission with longer term treatment possible. [Jane] and her mother are anticipating 4-6 month

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stay but are open to longer treatment if indicated.” Id. Dr. Flynn reported he discussed with Jane
“the possibility of her deferring admission today and coming back after the long weekend, but
[Jane] ultimately decided to accept admission today.” Id.
On the date of her admission to Riggs, Jane also met with therapist Sharon Krikorian,
Ph.D., Jane’s treating therapist at Riggs, who recommended a comprehensive evaluation and
treatment. AR at 494, 749. On that date, Dr. Krikorian reported Jane “denie[d] current thoughts
of suicide or self harm and was able to state clearly and with good eye contact that she could come
to nursing if this changes.” AR at 749. Additionally, Daltrey Turner, LICSW, met with Jane’s
mother and explained she would serve as the family liaison during Jane’s treatment at Riggs. AR
at 549-50.
2.

HPHC’s Initial Approval of Residential Treatment

UBH approved coverage for Jane’s admission to Riggs. AR at 226. UBH noted on January
18, relying on information from Dr. Flynn, that Jane had four psychotic episodes and three
inpatient admissions in the previous year, poor responses to medication and no current psychosis
or suicidal intent. Id. Jane requested coverage for twenty-eight days at the time of admission;
UBH approved coverage for seven days. AR at 225-26.
3.

Jane’s Clinical Treatment: January 17, 2013 through March 12, 2013

During Jane’s first days at Riggs, she reported she was “happy to be [t]here,” but that she
also experienced some difficulty “transitioning into a ‘new place.’” AR at 749-50. Dr. Krikorian
documented Jane’s struggle to understand the triggers for her psychosis, her anger and the sadness
that “at times leads her to want to punish herself by cutting or suicidal [sic],” AR at 495, and
explained Jane’s “ability to tolerate her affective experience is impaired,” AR at 578. Dr. Mintz
reported Jane called her mood disorder “hypomania,” and he described Jane as “ranging quickly
from smiling to tears.” AR at 518. He noted, however, that Jane “has not felt depressed.” Id.
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Four days into her residency, Jane reported to a nurse that she had had two panic attacks so far,
which Jane thought might be due to the stimulation she feels “around her trauma issues” when
discussing them in group therapy sessions. AR at 752. Nurses consistently reported seeing Jane
interacting with peers and staff in the first week and one reported Jane “appeared in good spirits”
at that time. AR at 750-53. Jane went shopping with her family, which she described as bittersweet
because her brother missed her, AR at 752, and went out for dinner with friends, AR at 753. A
nurse reported Jane said she was “settling in well,” but that she was having trouble with sleep and
her anxiety. Id.
Jane experienced one event in January that Dr. Krikorian called a “manic” episode. AR at
495. On January 24, 2013, Jane spoke with her younger brother on the telephone, but her mother
told her that her brother “was now doing badly and talking to [Jane] would make it worse.” AR at
755. At 11:15 p.m. that night, two of Jane’s peers told nursing staff Jane was seeing “paper people
stabbing her.” Id. As Jane described in her discussions with Dr. Krikorian, Jane was seeing “paper
people coming out of the walls and dancing and then sticking knives in her ankles.” AR at 495.
Dr. Mintz also documented this matter in his report. AR at 518. Nursing staff spoke with Jane
and kept her company as she ate and shortly thereafter she fell asleep. AR at 755. The next day,
Jane said “she was feeling better” and went bowling with friends that evening. AR at 756.
Following this episode, Dr. Mintz increased her Seroquel dosage, to which she “responded well.”
AR at 495. Dr. Mintz wrote that the increased Seroquel improved her sleep and stabilized her
moods. AR at 517.
Jane was often seen with peers in late January and early February. AR at 750-65. Jane
went to the museum and art store with friends and began a Claymation project that several nurses
observed her working on in the following weeks. AR at 757-59. She told nursing staff she enjoyed

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working on her project, AR at 759, and she completed it by February 1, 2013, AR at 547. She told
Ms. Turner she was considering studying art. Id. She was reported as being in “good spirits,” AR
at 759, 764, and went out in the evening with friends, AR at 761. She experienced some difficulties
with a peer relationship during this time, specifically with a “male peer” who wanted to be in an
“exclusive” relationship with her. AR at 754-61. Additionally, several members of the nursing
staff noted Jane was concerned with her weight; they monitored her weight loss and eating habits,
but Jane denied not eating. AR at 749-59, 764. Jane did not report any hallucinations during this
time. AR at 756.
On February 6, 2013, Jane approached nursing staff at 7:50 p.m. complaining of discomfort
in her esophagus, a “scratchy” feeling in her throat and shortness of breath following a hike she
took that day. AR at 766. After the nurse took Jane’s vital signs, a friend drove Jane to the local
emergency room. Id. Jane did not receive any medications at the hospital and she returned at 2:45
a.m. with discharge paperwork stating a diagnosis of “anxiety/panic attacks” and “chest wall pain.”
Id. The next day, Jane reported feeling “much better.” Id. She was again seen interacting with
peers and staff. AR at 768. Ms. Turner summarized Jane’s status, explaining Jane “is curious
about what is going on with her, and with assistance seems able to slow down and think,” but that
“[w]ithout assistance, [Jane] can easily move quickly, making decisions and feeling overwhelmed,
in a way that she doesn’t fully understand.” AR at 548.
On February 10, Jane continued discussing with nurses her difficult relationship with a
male peer, and communicated the pressure and concerns she felt regarding her family members.
AR at 769. That evening, Jane reported that she “heard the voice of an older man telling her to
hurt herself,” but nursing staff documented that Jane “was able to not give in to his words.” AR
at 769-70. Jane was put on the PAS program, which involved moving to a different wing in Riggs

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where she slept nearer to nurses and without a roommate, and nursing staff retained Jane’s car
keys. Id. The next day, Jane reported suicidal ideations and thoughts of self-harm but “no plan or
intent.” AR at 770. That evening, Jane reported that “the voice was not there,” and she was glad
to be near the nurses. Id. She “negotiated to go out” with a friend to “buy something at Staples”
and reported she “feels she is improving.” Id. The following day, Jane reported feeling better and
negotiated going out with peers in the morning and afternoon. AR at 771. She stated her “suicidal
ideation and thoughts of cutting” were “manageable” and denied any plan or intent of self-harm
or hearing any voices. AR at 772. Nursing staff took Jane out of the PAS program, moved Jane
back to her original room and returned Jane’s car keys to her. Id.
In his report finalized on February 13, 2013, Dr. Mintz stated Jane denied suicidal ideation
or feeling depressed, and that her cognition was “grossly intact,” with “adequate attention and
memory for this type of treatment.” AR at 512. He concluded bipolar I disorder seemed “the best
fit,” with the alternatives including schizoaffective disorder and hysteria. AR at 512-13. Dr. Mintz
wrote that Jane’s primary complaint was lack of sleep and occasionally feeling like her “brain is
really fuzzy,” which she attributed to the two antipsychotic medications she was taking. AR at
510. In late January, Jane complained that she would “zone out” at times. AR at 511, 756. He
wrote that Jane reported symptoms “consistent with partial complex seizures,” noting his intent to
investigate “whether mood and psychotic symptoms may have a neurological basis.” AR at 513.
Her increased Seroquel intake, however, “improved sleep and may have contributed to a deescalation of psychotic symptoms.” Id. Finally, he diagnosed her with PTSD—although he noted
Jane had expressed doubts about whether the summer camp abuse was “real or a psychotic
creation”—and personality disorder NOS. Id.

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Throughout February, Jane continued interacting with peers and leaving the Riggs
premises to do so. AR at 772-79, 785-87. She went skiing, AR at 772, 785, shopping, AR at 774,
and did other recreational activities off-site with peers, AR at 773, 777-78. She discussed her
creative talent and the possibility of going to art school with nursing staff. AR at 779. She applied
and was approved for medical self-administration. AR at 497.
Jane reported experiencing some delusions in late February. She told Dr. Krikorian that
she had “one delusion that the Mafia was out to get her.” AR at 497. In Dr. Krikorian’s March 6
report, she noted Dr. Mintz had modified Jane’s regimen over the month of February, by
decreasing her Abilify and increasing her Seroquel, which made her “less prone to manic-like
experiences.” Id. On February 25, 2013, Jane approached nursing staff reporting she felt “snakes
on [her] legs” and voiced her concern that it was a symptom of tapering down on her anti-psychotic
medication. AR at 780. Afterwards, however, she was observed interacting with peers and “in
good spirits.” AR at 781. But on February 27, Jane told nursing staff she was “experiencing
delusions around people outside of Riggs, hiding in bushes, watching her and waiting to hurt her.”
AR at 781, 497. She returned to nursing staff that evening, who provided Jane with a Seroquel to
help with her fear. AR at 782. The following day, Jane confessed to nursing staff that she had
secretly been in a troublesome relationship with a male peer during this period. AR at 782-83.
Jane also revealed to Dr. Krikorian that she had been keeping the three-week relationship a secret.
AR at 497. Jane reported that the relationship ended on February 27, AR at 782, but she later
reported the relationship continued, AR at 783. In Dr. Mintz’s March 3, 2016 report, he wrote that
Jane continued to report “psychotic symptoms, including and [sic] old man’s voice telling her to
run away” and feeling snakes in her body again. AR at 522. He again stated his intent to
investigate whether Jane’s symptoms had a “neurological basis,” as some were “consistent with

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partial complex seizures.” AR at 523. He then revised her diagnosis to schizoaffective disorder.
Id.
In early March, Jane told nursing staff she wanted to “come off all [her] meds and have a
clear mind” and that she was frustrated with the community at Riggs. AR at 789, 793. She also
reported being upset about a relationship with a male peer. AR at 793. She felt angry and
expressed the desire “to be ‘noncompliant,’ to feel ‘powerful’ and not feel like a patient.” AR at
789. She communicated a desire not to eat. AR at 789-90. She denied, however, feeling depressed
or experiencing suicidal ideations. AR at 790. She was observed interacting with peers and staff,
AR at 790-93, went out to go shopping, AR at 791, and went to a concert with peers, AR at 794.
Riggs staff—led by Ms. Turner—also assessed Jane’s family dynamic during the course
of her treatment. AR at 541-46, 549-50. The family assessment stated that Jane’s parents “are
interested in learning more about the etiology of [Jane’s] difficulties” and that the “family’s
strength is their openness to finding out more about what is going on and to seek out support and
resources.” AR at 546. In her medical file, Ms. Turner noted Jane had initially expected to stay
at Riggs for 4-6 months, but later said “she could see being here for a year. In the long run she
wants to return to college, but doesn’t imagine she’ll be ready until Fall 2014 or Spring 2015.”
AR at 608.
4.

HPHC’s Denial of Continued Coverage

UBH conducted three peer-to-peer reviews with Dr. Krikorian from late January to early
February 2013 and concluded that Jane was not eligible for continued residential treatment. AR
at 231-38, 265-66, 299-302. On January 29, 2013, Martin H. Rosenzweig, M.D., summarized his
discussion with Dr. Krikorian, focusing primarily on Jane’s symptoms prior to admission to Riggs.
AR at 266. He noted Jane was not “currently actively suicidal,” but that Dr. Krikorian stated Jane
needed the “structure of residential as she needs nursing support when she is unable to sleep and
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her parents do not have the ability to help her when she is home.” Id. He concluded that Jane was
not meeting the criteria for continued residential care and could be readied to step down to partial
hospitalization, although he noted that Dr. Krikorian communicated to him that Jane did not meet
internal criteria for a step down. Id. He approved three additional days for the purpose of preparing
a good discharge plan with the involvement of Jane’s parents. Id.
On February 4, 2013, James W. Feussner, M.D., Associate Medical Director of UBH,
conducted a peer-to-peer review with Dr. Krikorian. AR at 299. In their conversation, Dr.
Krikorian reported that Jane was not suicidal or psychotic and “has improved from the medication
regimen,” which had not been adjusted in two weeks. AR at 299-300. Dr. Feussner concluded
that Jane did not meet the level of care criteria for residential treatment. AR at 300.
In a letter sent February 5, 2013, HPHC explained that effective February 6, 2013, Jane’s
residential treatment would no longer be covered under the Plan. AR at 315. The letter quoted
Dr. Feussner’s assessment, stating Jane’s “acute crisis bringing [her] to the hospital has quieted,”
and that she “has been able to move towards recovery and seem more like [her]self” such that she
no longer “need[s] further help from residential level of care.” AR at 316. The letter stated the
determination was based on the UBH Level of Care Guidelines. Id. The letter did not provide
those criteria, but rather provided the contact information for UBH should she seek more
information on the guidelines or her records. Id. The letter provided information on how to appeal
the decision.

Id.

The letter also stated that UBH would authorize coverage for partial

hospitalization services with an in-network facility and provided the contact information and
availability of three hospitals providing that service. Id.
5.

Jane’s First Appeal: Formal Internal Appeal through HPHC

Riggs filed an expedited appeal on Jane’s behalf. AR at 440. Michael I. Bennett, M.D., a
physician board certified in psychiatry and without affiliation to UBH or Dr. Feussner, conducted
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a review of Jane’s claim on behalf of HPHC. AR at 427, 440-45. Dr. Bennett upheld the decision
denying Jane continued coverage for her residential treatment. AR at 427, 441.
Dr. Bennett provided a basis for his findings in a February 12, 2013 report. AR at 427. He
explained, based on his conversation with Dr. Krikorian, that Jane’s family was “supportive,” and
Jane was “currently not psychotic and not suicidal and ha[d] improved on her current medications.”
AR at 427, 441. He also noted, however, that Jane had recurrent suicidal ideations, her “voices
have returned” and there “may be a change in medication.” AR at 427. He nevertheless concluded
that residential treatment was not medically necessary for Jane. Id. He wrote that Jane “might be
safely able to pursue treatment while living at home and attending outpatient treatment . . . but this
is not an option that the patient’s family and clinicians wish to explore at the current time.” Id.
He explained Jane did not meet the criteria for residential treatment, nor did she meet all six of the
continued service guidelines. Id. He stated that partial hospitalization programming, however, “is
medically necessary.” Id.
Based on this conclusion, HPHC sent Jane a letter on February 12, 2013, stating that her
treatment pending review of her appeal was eligible for coverage, but that treatment past February
12 had been denied. AR at 440-43. This letter provided the conclusions from Dr. Bennett’s report
and the relevant UBH Guidelines. AR at 441. The letter reiterated that UBH had authorized
coverage for partial hospital programming. Id. The letter also provided Jane with guidance on
how to file an external appeal with OPP. AR at 442.
6.

Jane’s Second Appeal: External Appeal through OPP

On March 7, 2013, OPP informed HPHC that it had received a request for an expedited
external review of Jane’s appeal, which OPP was sending to Independent Medical Expert
Consulting Services, Inc. (“IMEDECS”) for review. AR at 433-39. Jane’s mother submitted this
request, along with information about Jane’s treating healthcare provider and a release of medical
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records and psychotherapy notes to OPP. AR at 476-79. According to the IMEDECS report,
Jane’s case file was reviewed by an independent expert reviewer board certified in psychiatry, who
works as an assistant clinical professor of psychiatry and medical director of child and adolescent
services at a university-affiliated psychiatric hospital, as a psychiatric consultant and in private
practice at a university-affiliated psychiatric hospital. AR at 429. The external review was based
on materials including correspondence from the Commonwealth of Massachusetts, HPHC and
UBH, the Guidelines, and Jane’s medical records. AR at 430.
On March 12, 2013, the IMEDECS expert reviewer upheld HPHC’s decision to deny
continued residential treatment. AR at 429. Applying the Commonwealth’s medical necessity
definition—almost identical to HPHC’s definition in the Handbook, AR at 21-22—the IMEDECS
reviewer’s report states that continued residential treatment at Riggs was not medically necessary
from February 13 onward. AR at 431. The reviewer explained there was:
no evidence that the patient required 24 hour supervision or nursing care . . . . [Jane]
was able to participate in treatment adequately and showed no deficits in self-care
skills. The patient’s family was involved and supportive of the patient’s treatment.
While the patient continued to have symptoms of a mood disorder, there was no
evidence in the medical record that these symptoms were severe enough to prevent
the patient from participating in treatment at a lower level of care such as a PHP
(partial hospitalization program) or make treatment at a lower level of care such as
a PHP unsafe.
Id.
D.

HPHC’s Post-Litigation Administrative Review

After Jane initiated this action in 2015, HPHC filed an assented-to motion to extend time
to file a responsive pleading to the complaint, stating “they are in the process of working together
in good faith to narrow the issues.” D. 16 at 1. On October 8, 2015, the parties filed a joint motion
to stay proceedings “pending Administrative Review of her health insurance benefits claims prior
to proceeding further with this federal court action,” explaining that the resolution of the review
16

could “moot this action in its entirety.” D. 18 ¶¶ 2-3. The Court granted the motion. D. 20.
During the stay, Jane’s claim was reviewed by HPHC’s Medical Director, who then sent a letter
to Jane’s counsel summarizing HPHC’s conclusions for denying coverage and Jane submitted
rebuttal opinions to HPHC for further review. D. 21; D. 23; D. 56-5 at 36-71. On February 26,
2016, HPHC’s general counsel sent a letter to Jane’s counsel affirming its denial of Jane’s claim.
D. 56-5 at 67-71; D. 64 at 129-49.
III.

Procedural History
Plaintiffs instituted this action on March 5, 2015. D. 1. The parties filed a joint motion to

stay proceedings on October 8, 2015, which the Court granted. D. 18; D. 20. Following briefing
by both parties, D. 40; D. 44, the Court allowed the parties to file certain documents from HPHC’s
post-litigation review for the Court’s consideration, D. 48, 50. The parties filed cross motions for
summary judgment, D. 56; D. 63, and briefing on whether to further expand the scope of the record,
D. 66; D. 61. The Court heard the parties on the pending motions and took these matters under
advisement. D. 69.
IV.

Standard of Review
In an ERISA case reviewing the denial of coverage, the Court “sits more as an appellate

tribunal than as a trial court” and “evaluates the reasonableness of an administrative determination
in light of the record compiled before the plan fiduciary.” Leahy v. Raytheon Co., 315 F.3d 11,
18 (1st Cir. 2002). In this context, “the factual determination of eligibility for benefits is decided
solely on the administrative record, and ‘the non-moving party is not entitled to the usual
inferences in its favor.’” Bard v. Bos. Shipping Ass'n, 471 F.3d 229, 235 (1st Cir.
2006) (quoting Orndorf v. Paul Revere Life Ins. Co., 404 F.3d 510, 517 (1st Cir. 2005)), cert.
denied, 546 U.S. 937 (2005)). In sum, “where review is based only on the administrative record

17

before the plan administrator . . . summary judgment is simply a vehicle for deciding the
issue.” Orndorf, 404 F.3d at 517.
The standard of review governing the Court’s analysis determination is a threshold
question. See, e.g., Stephanie C. v. Blue Cross Blue Shield of Mass. HMO Blue, Inc. (Stephanie
II), 852 F.3d 105, 109 (1st Cir. 2017); Leahy, 315 F.3d at 15. In ERISA cases, the Court looks to
the language of the Plan itself to “determine the standard of judicial review applicable to a claims
administrator’s denial of benefits.” McDonough v. Aetna Life Ins. Co., 783 F.3d 374, 379 (1st
Cir. 2015). A court must review the denial of benefits de novo “unless the benefit plan gives the
administrator or fiduciary discretionary authority to determine the eligibility for benefits or to
construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989).
Discretionary authority “must be expressly provided for,” and only when the delegation of
such authority is “sufficiently clear and notice of it has been appropriately provided” does the
standard of judicial review change from de novo review to abuse of discretion. Stephanie C. v.
Blue Cross Blue Shield of Mass. HMO Blue, Inc. (Stephanie I), 813 F.3d 420, 427 (1st Cir. 2016).
The Plan need not contain any particular words to confer discretion, but “to secure discretionary
review, a plan administrator must offer more than subtle inferences drawn from such unrevealing
language.” Gross v. Sun Life Assur. Co. of Can. (Gross I), 734 F.3d 1, 16 (1st Cir. 2013). Rather,
“a grant of discretionary decisionmaking authority in an ERISA plan must be couched in terms
that unambiguously indicate that the claims administrator has discretion to construe the terms of
the plan and determine whether benefits are due in particular instances.” Stephanie I, 813 F.3d at
428 (emphasis in original).
In light of the language in Jane’s HPHC Plan, the Court will review HPHC’s denial of
continued residential treatment coverage de novo. The HPHC Plan states HPHC will “use clinical

18

review criteria to evaluate whether certain services or procedures are Medically Necessary for a
Member’s care.” AR at 19. Likewise, the Plan’s definition of medical necessity points to
“generally accepted principles of professional medical practice,” and not administrator discretion,
as the basis for an HPHC determination. AR at 21-22. The Plan thus relies on external clinical
criteria and fails to indicate that an administrator has any leeway when applying these criteria. The
Plan language falls short of the unambiguous grant of discretionary authority required in the First
Circuit. Cf. Stephanie I, 813 F.3d at 428.
The Court therefore proceeds in de novo review of Jane’s denial of benefits claim. In doing
so, “the court may weigh the facts, resolve conflicts in the evidence, and draw reasonable
inferences.” Stephanie II, 852 F.3d at 111. The “ERISA beneficiary who claims the wrongful
denial of benefits bears the burden of demonstrating, by a preponderance of the evidence, that she
was in fact entitled to coverage.” Id. at 112-13.
V.

Discussion
A.

Scope of the Administrative Record

As an initial matter, the Court must address the parameters of the administrative record.
On September 28, 2016, Jane filed a motion to expand the scope of the record. D. 40. Seeking to
preserve Jane’s position for the record until the Court could consider and resolve the summary
judgment issue, the Court permitted the parties to file certain documents pertaining to a review of
Jane’s claim conducted by HPHC following Jane’s initiation of this lawsuit. D. 50. Although
these documents are part of the filings in this case, the Court now concludes they should not be
considered as part of the administrative record for the purposes of its review of Jane’s claim.
“ERISA benefit-denial cases typically are adjudicated on the record compiled before the
plan administrator.” Denmark v. Liberty Life Assur. Co. of Bos., 566 F.3d 1, 10 (1st Cir. 2009).
Principles of exhaustion and finality dictate that “the final administrative decision acts as a
19

temporal cut off point.” Orndorf, 404 F.3d at 519. A “claimant may not come to a court and ask
it to consider post-denial medical evidence in an effort to reopen the administrative decision.” Id.
Here, the parties dispute which administrative decision was the “final” one. HPHC argues the
final administrative decision was OPP’s affirmation of denial on March 12, 2013. D. 63-1 at 12.
If HPHC is correct, no documents that postdate that denial should be part of the administrative
record. See, e.g., Orndorf, 404 F.3d at 519. Jane argues, however, that HPHC’s post-litigation
decision on February 29, 2016, constitutes the “final administrative decision,” and so the
documents HPHC reviewed in that process—including medical records and expert opinions Jane
submitted—form part of the administrative record. D. 56-2 at 10.
HPHC is correct that the OPP decision from March 2013 is the “final administrative
decision.” Under the terms of the Plan, Jane exhausted her administrative remedies when her claim
was reviewed and denied by OPP’s independent reviewer. See AR at 55-56; see also Madera v.
Marsh USA, Inc., 426 F.3d 56, 61 (1st Cir. 2005) (explaining that “[b]efore a plaintiff asserts an
ERISA claim . . . he must first exhaust his administrative remedies”). After receiving OPP’s
decision on March 12, 2013, AR 429, Jane was free to pursue legal action, AR at 55, which she
did. D. 1. The final decision upon which Jane’s lawsuit was based was the March 12, 2013
decision. D. 1 ¶ 19.
The review the parties conducted after Jane filed this action does not change the operative
administrative decision in this case. First, it does not constitute an administrative review as defined
by the HPHC Handbook. “[A]n ERISA plan is a form of contract. Thus, contract-law principles
inform the construction of an ERISA plan, and the plain language of the plan provisions should
normally be given effect.” Stephanie II, 852 F.3d at 117 (internal citation omitted). Here, the Plan
spells out the procedures a member may follow when HPHC has affirmed a denial of coverage: a

20

Member may (1) request reconsideration by HPHC’s review committee; (2) file for external review
with OPP; or (3) file a legal action in court. AR at 55. The only category under which HPHC’s
2015-2016 review could fall is the first, but the post-litigation review was not “reconsideration”
as outlined by the Handbook. Reconsideration by HPHC’s review committee is only available for
a claimant if she requests it within fifteen days of the formal denial of coverage and it is unavailable
for any claimant whose appeal has been accepted for external review by OPP. AR at 55-56. Here,
the 2015-2016 review postdates both the fifteen-day limit and OPP’s review of Jane’s claim.
Furthermore, the post-litigation review was not conducted by a committee, but rather included a
report by HPHC’s medical director. See D. 56-5 at 36-39. Even if the parties referred to it as an
“administrative review” at times, D. 18; D. 21; D. 23, HPHC’s post-litigation review of Jane’s
claim was not an administrative review as defined by the Plan, see AR at 55-56.
Second, the parties cannot override the limitations on the Court’s scope of review by
agreeing to file additional documents. A “very good reason is needed to overcome the strong
presumption that the record on review is limited to the record before the administrator,” Denmark,
566 F.3d at 10 (quoting Liston v. UNUM Corp. Officer Sev. Plan, 330 F.3d 19, 23 (1st Cir. 2003)),
such as evidence of “personal bias by a plan administrator,” Orndorf, 404 F.3d at 520. The parties’
voluntary agreement here to provide certain additional information is not a “very good reason.”
The initial joint motion to stay states “[d]ocuments submitted or generated as part of the
Administrative Review, will be part of the Administrative Record in this case.” D. 18 ¶¶ 2-3.
Additionally, HPHC included medical records postdating the OPP decision when it first submitted
the administrative record, and Jane did not dispute it. D. 36. Presumably, both parties believe
these records support their respective arguments regarding medical necessity.

HPHC has

explained that including medical records beyond what any administrator reviewed “was an effort

21

at conciliation” even though “technically” these documents should not be included in the
administrative record “under the law.” D. 50 at 16:7-24. Neither party has suggested that these
records were before the administrative reviewer at the time of the final administrative review and
decision, and that alone is the determining factor defining the administrative record’s scope before
this Court.
The Court is also wary of converting what may have been reasonable efforts by both parties
to resolve the dispute without continuing litigation into a full-blown administrative review. When
the parties sought leave of this Court to conduct a review of Jane’s claim, they did so in an effort
to resolve their dispute short of a disposition on the merits before this Court. See D. 16; D. 18.
An insurer’s decision to conduct a further review with the hopes of out-of-court resolution is not
one this Court seeks to discourage by reopening the administrative record to documents postdating
the administrative decisions that led to the litigation in the first place.
Finally, the Court notes that in accepting the March 12, 2013 OPP decision as the “temporal
cut off point” for the administrative record, it has also considered Jane’s medical records up to and
including that date as part of the administrative record. Although HPHC affirmed UBH’s denial
of coverage on February 12, 2013, the Court must review the record compiled before the
administrator of the “final administrative decision,” see, e.g., Orndorf, 404 F.3d at 519. The report
produced by OPP and IMEDECS states the expert reviewer reviewed Jane’s medical records.2 AR
at 430. It does not provide an end date for those records. Thus, the Court has taken an expansive

2

Jane argues the IMEDECS expert did not review her medical records, D. 56-2 at 9 n.2,
but the OPP report states that the expert did review these documents, AR at 430, and filing a
request for external review with OPP includes a release of medical records and psychotherapy
notes, both of which Jane’s mother signed and submitted, AR at 476-79. Jane has not argued the
administrative record should exclude these medical records. See D. 41; D. 50; D. 56-2.
22

view and reviewed Jane’s medical records up to and including March 12, 2013 as part of the
administrative record.
B.

Medical Necessity

Reviewing Jane’s claim de novo, the Court concludes that Jane has not met her burden in
demonstrating that the treatment at Riggs was medically necessary as defined in the HPHC Plan.
HPHC used UBH Guidelines as a framework when making mental health treatment
determinations. AR at 226; D. 63-2 ¶¶ 8-10. Jane does not dispute the use of these Guidelines,
but rather argues Jane’s condition met the requirements. D. 56 at 12-18. Specifically, Jane argues
she met two of the three criteria for the residential treatment level of care and all six criteria for
continued coverage. Id. But after review of the medical records and opinions submitted to the
Court, the Court concludes Jane has not met her burden of proving that continued residential
treatment at Riggs was the “most appropriate” level of care for her condition at that time, AR at
22.
The UBH Guidelines base a patient’s qualifications for the residential treatment level of
care on whether the patient’s condition would be unsafe in a “less restrictive setting” or her
treatment would be undermined in a “lower level of care.” AR at 454. The inquiry thus requires
focusing not on whether Jane benefited from her treatment at Riggs, but rather whether it was
necessary, as compared to a lower level of treatment, such as a partial hospitalization program.
See, e.g., Stephanie II, 852 F.3d at 117 (explaining because ERISA plans are “a form of contract,”
the inquiry is not whether one’s treatment was beneficial to her, “but, rather, whether that course
of treatment was covered under the Plan”). Jane has failed to show that her mental health would
have been in a worse position if she had transitioned to a lower level of care rather than continued
residential treatment at Riggs.

23

Qualifying for residential treatment coverage under the UBH Guidelines requires proof
that a lower level of care would be insufficient either because the patient’s “disturbance in mood,
affect or cognition [would] result[] in behavior that cannot be safely managed in a less restrictive
setting” or “[t]here is an imminent risk that . . . psychosocial stressors will produce significant
enough distress or impairment in . . . important areas of functioning to undermine treatment in a
lower level of care.” AR at 454. The fact that Jane had three inpatient admissions prior to entering
Riggs is not sufficient to justify her residential treatment there indefinitely. Similarly, Jane’s need
for continued treatment in general does not automatically necessitate her continued 24-hour
residential treatment.
The UBH Guidelines define residential treatment as being appropriate for patients who “do
not require 24-hour nursing care and monitoring . . . but who do require 24-hour structure.” Id.
The Guidelines do not define or elaborate on the “24-hour structure,” however, and the line
between needing 24-hour structure, but not 24-hour nursing care or monitoring, is far from clear.
Nevertheless, a close review of Jane’s medical and treatment records suggests the 24-hour
structure was not medically necessary.
Jane was observed interacting with peers and was described, at times, as being “in good
spirits” between January 17, 2013 and March 12, 2013. AR at 750-94. Dr. Flynn initially
suggested that Jane spend another weekend at home prior to moving in to Riggs. AR at 490. Once
admitted, Jane was free to go out with friends and family, and she did so on numerous occasions,
going skiing, hiking, bowling, shopping, to dinner and to concerts with friends, with no sign of
increased symptoms as a result. AR at 753-94. Records kept by nursing staff show Jane rarely
sought assistance in the evenings. AR at 749-94. She was able to begin and complete an art project
that impressed staff with her creativity, skill and focus. AR at 757-59, 547. Her sadness and anger

24

at conflicts with friends, see, e.g., AR at 754, 761, 765, and concerns about siblings, AR at 495,
518, 755, do not compel the conclusion that the 24-hour structure was necessary.
The UBH Continued Service Criteria require a showing that “relapse or a significant
deterioration in functioning would be imminent if the member was transitioned to a lower level of
care.” AR at 459. Although Jane may have felt safe at Riggs, see AR at 770, there is no evidence
from before or after February 12, 2013 that if she had been discharged to partial hospitalization
she would have relapsed or her health would have significantly deteriorated. Jane’s struggles with
delusions and anxiety during these months appear less severe than in the previous year. See, e.g.,
AR at 495, 518, 755-56. There was only one period when Jane was monitored more closely by
nurses as a result of the Jane’s auditory hallucinations, but this period was brief, and Jane was able
to seek help and report the problem rather than act on it. AR at 769-72. Jane felt better the
following morning, and she went out with friends several times even during this period of closer
monitoring. AR at 770-72.
The Court does not seek to minimize the seriousness of Jane’s symptoms. The Court,
however, cannot conclude on this record that continued residential treatment past February 12,
2013 was medically necessary. Jane’s treatment at Riggs was covered for an additional nineteen
days after the more concerning January 24, 2013 incident of delusions. AR at 440-43. During that
time, Jane continued socializing outside of Riggs with peers and was mostly observed to be in
good spirits. AR at 750-61. Dr. Mintz’s adjustment to Jane’s medication in response to the
incident appeared to improve her condition. AR at 495, 517.
When Jane was initially admitted to Riggs, Dr. Flynn reported her symptoms requiring
residential treatment as including suicidal behavior, self-destructive behavior, inability to live
autonomously, depression and anxiety. AR at 487-89. By February, Jane no longer exhibited at

25

least the first three of those symptoms. First, Jane experienced hallucinations encouraging suicide,
but she did not take any steps in furtherance of those hallucinations. AR at 769-72. Second, Jane
does not appear to have engaged in self-destructive behavior. She participated in her treatment
plan, engaged with patients and staff and took advantage of the resources at Riggs during her stay.
AR at 750-94. Third, Jane displayed an ability to live autonomously. In addition to Jane’s social
autonomy at Riggs, id., she was increasingly autonomous in her self-care, AR at 497. Finally,
Jane was not depressed, AR at 518, and her reports of anxiety were infrequent, AR at 766.
The fact that Jane continued to experience symptoms of her mental ailments does not mean
she required continued residential treatment. The diminished intensity of her symptoms, coupled
with Jane’s ability to administer her own medication successfully, come and go freely and report
any issues as they arose suggests that continued residential treatment was no longer medically
necessary.
1.

The Medical Opinions

Several doctors reviewing Jane’s claim agreed she did not meet the guidelines for
continued residential treatment. Dr. Rosenzweig concluded as much despite Dr. Krikorian
communicating to him that Jane did not meet Riggs’s criteria for a step down, approving ongoing
residential treatment pending the creation of a discharge plan involving Jane’s parents. AR at 266.
Dr. Feussner also concluded as much after a peer-to-peer review with Dr. Krikorian,
acknowledging that Jane experienced ongoing interpersonal and psychological challenges, but
explaining she did not need residential level of care. AR at 300. Dr. Bennett also concluded
residential treatment was not medically necessary. AR at 427. Finally, an independent psychiatrist
at IMEDECS came to the same conclusion, explaining there was “no evidence that [Jane] required

26

24 hour supervision or nursing care,” as Jane “showed no deficits in self-care skills” and her
“family was involved and supportive.” AR at 431.
On the other hand, Dr. Krikorian, Jane’s treating therapist, explained when communicating
with the doctors at UBH and HPHC that Jane did not meet Riggs’ criteria for a lower standard of
care. AR at 266. The Court is not persuaded that Dr. Krikorian’s opinion overcomes the opinions
on the other side of the scale. In ERISA cases, unlike Social Security cases, treating physicians
are not entitled to special deference. See, e.g., Richards v. Hewlett-Packard Corp., 592 F.3d 232,
240 (1st Cir. 2010), cert. denied, 562 U.S. 1102 (2010); Orndorf, 404 F.3d at 526; see Gernes v.
Health & Welfare Plan of Metro. Cabinet, 841 F. Supp. 2d 502, 510 (D. Mass. 2012); Jon N. v.
Blue Cross Blue Shield of Mass., 684 F. Supp. 2d 190, 203 (D. Mass. 2010). It is unclear what
Riggs’s internal criteria are for medical necessity, whether they differ from HPHC’s and to what
degree. Also, it does not appear from the administrative record—in peer-to-peer discussions with
external medical experts or in Dr. Krikorian’s internal reports—that Dr. Krikorian explained why
continued residential treatment was medically necessary for Jane.
All of the medical professionals agreed that Jane’s mental ailments required ongoing
treatment of some kind. But four doctors agree Jane was ready to transition from residential
treatment to a partial hospitalization program. AR at 266, 300, 427, 431. The burden to show
continued residential treatment was medically necessary falls on Jane, see, e.g., Stephanie II, 852
F.3d at 112-13; Richards, 592 F.3d at 239, and she has not satisfied that burden.
C.

HPHC Conducted a Full and Fair Review of Jane’s Claim

Section 503 of ERISA requires every benefit plan to “afford a reasonable opportunity to
any participant whose claim for benefits has been denied for a full and fair review by the
appropriate named fiduciary of the decision denying the claim.” 29 U.S.C. § 1133(2). The

27

statute’s implementing regulations list requirements for a “full and fair review,” including
providing 180 days for claimants to file appeals, consulting independent medical experts on appeal
and affording no deference to the initial determination. 29 C.F.R. 2560.503-1.
Jane argues that HPHC’s internal review of Jane’s claim in February 2013 falls short of
ERISA’s “full and fair review” requirements by failing to obtain medical records as required by
the Plan. D. 56-2 at 18-20. She argues this misstep “poison[ed]” her “ability to obtain a fair review
from OPP.” D. 56-2 at 19.
It is unclear from the administrative record whether UBH possessed or included Jane’s
medical records when it transferred Jane’s case file to HPHC in February 2013. See AR at 482.
Regardless, HPHC argues they had “substantial medical information,” including documents from
Jane’s admission to Riggs—containing Dr. Flynn’s initial assessment—and their peer-to-peer
reviews with Dr. Krikorian in January and February, in which Dr. Krikorian reported the details
of Jane’s health and treatment to administrators. D. 63-1 at 17-18. As a result, Dr. Feussner had
the reports from earlier reviews as well as his own peer-to-peer discussion with Dr. Krikorian when
conducting his own review. D. 63-1 at 18. To the extent administrators lacked a physical medical
record, HPHC continues, it was not for lack of trying; efforts to acquire these documents were
hindered by Riggs’s model of documenting only “periodic results.” Id. Finally, HPHC notes
OPP’s independent review did include a copy of Jane’s physical medical records. D. 63-1 at 19;
AR at 430. As discussed, supra, these records may have even extended up to and including March
12, 2013, the date OPP denied Jane’s claim on review.
Although failing to obtain medical reports does not violate the requirements of the statute’s
implementing regulations, “plan administrators ordinarily will be in the best position to develop a
record adequate for the full and fair review required by the statute,” as “[a]ll parties will be better

28

served if ERISA fiduciaries are motivated to develop records that fairly represent all available
information about a claimant’s condition and capabilities.” Gross v. Sun Life Assur. Co. of Can.
(Gross II), 763 F.3d 73, 84-85 (1st Cir. 2014), cert. denied, 135 S. Ct. 1477 (2015).
Nevertheless, even if the Court accepted Jane’s arguments that HPHC did not review all of
her records, Jane has not successfully shown she was prejudiced by these errors. “Our case law
does not always require strict technical compliance with the regulations—all that is required of the
plan administrator is ‘substantial compliance’ with the spirit of the regulations.” Santana-Díaz v.
Metro. Life Ins. Co., 816 F.3d 172, 182 (1st Cir. 2016). To succeed on a claim of a plan
administrator’s violation, the First Circuit requires the claimant to show she was prejudiced by the
administrative violations. See, e.g., id.; Stephanie I, 813 F.3d at 425-27. In other words, a “remand
to the claims administrator for reconsideration of benefits entitlement ordinarily will reflect the
court’s judgment that the plaintiff’s claim is sufficiently meritorious that it must be reevaluated
fairly and fully.” Gross II, 763 F.3d at 78.
Here Jane’s claim falls short. The administrative review of Jane’s appeal following the
HPHC internal appeal—the external appeal conducted by OPP—did include review of Jane’s
medical records. AR at 430. Her claim was nevertheless denied. AR at 431. Thus, Jane has failed
to make out a claim for HPHC’s procedural violations.
VI.

Conclusion
For the foregoing reasons, the Court DENIES Jane’s motion for summary judgment, D. 56,

and ALLOWS HPHC’s motion for summary judgment, D. 63.
So Ordered.
/s/ Denise J. Casper
United States District Judge

29