Robertson v. Blue Cross Blueshield of Texas et al
Filing
74
ORDER denying 35 Motion for Summary Judgment; granting 40 Motion for Summary Judgment; granting 45 Motion for Summary Judgment; granting 53 Motion to Strike ; granting 62 Motion to Strike ; finding as moot 65 Motion to Expedite; finding as moot 71 Motion to Expedite. Signed by Judge Donald W. Molloy on 4/15/2015. (dle)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
LANA V. ROBERTSON,
CV 14–224–M–DWM
Plaintiff,
ORDER
and OPINION
vs.
BLUE CROSS AND BLUE SHIELD OF
TEXAS and STALLION OILFIELD
HOLDINGS, INC.,
Defendants.
INTRODUCTION
Plaintiff Lana Robertson (“Robertson”) brings this action under the
Employee Retirement Income Security Act (“ERISA”) seeking a declaration that a
medical procedure she needs is covered by her employer-sponsored health benefits
plan. The parties have filed cross motions for summary judgment, addressing
whether the claims administrator of the plan properly denied Robertson benefits
according to the terms of the plan. (Docs. 35, 40, 45.)
The case, and the issues presented by the cross motions are troubling. What
1
is placed at issue is the tension posed by the human person who is facing certain
death in the absence of the treatment she needs, and an ERISA plan and
administrator that resort to legalisms supported in some sense by the idea of the
rule of law, to deny her a chance at life. Sadly, in this case and so many others
decided pursuant to a law intended to protect employees, there seems to be little
concern about the moral consequences of the denial of benefits. The decision in
this case by the plan administrator is akin to the “death panels” of recent political
history, panels ostracized and maligned for political purposes. Yet, the legalistic
arguments, and the law, seem to dictate an untenable moral determination
regarding the motions for summary judgment. Judge John T. Noonan Jr. of this
Circuit noted aptly in Persons and Masks of the Law,1 “Abandonment of the rules
produces monsters; so does the neglect of persons.”2 To paraphrase Judge
Noonan, at the intersection of the conflict between rules and persons, the process
of the rule of law is to be understood. “A chief difficulty to understanding,
however, is the presence of masks, formed by rules and concealing the person.”3
The legal reasoning justifying resolution of the pending motions is monstrous in
1
University of California Press, 1976, 2002.
2
Id. at 18.
3
Id. at 19.
2
its concealing the likely life ending consequences of applying rules and ignoring
the person. However, for the reasons stated below, which sound in the legal rules
of interpretation and not in equity, Robertson’s motion is denied and Defendants’
motions are granted.
BACKGROUND
Robertson is a participant in an employer-sponsored health benefits plan
(“the Plan”) established by Defendant Stallion Oilfield Holdings, Inc. (“Stallion”).
The Plan is regulated by ERISA, 29 U.S.C. §§ 1001, et seq. Stallion is the Plan
Sponsor and the Plan Administrator. Defendant Blue Cross and Blue Shield of
Texas (“Blue Cross”) is the Claims Administrator and the Claims Fiduciary. The
Plan grants discretionary authority to Blue Cross to make all claim and appeal
decisions under the Plan and to interpret the Plan’s terms. Blue Cross is a division
of Health Care Service Corporation (“Health Care Service Corp.”), a mutual legal
reserve company that operates in several states. The Plan’s governing instruments
are comprised of the Plan Document, which establishes the Plan’s general terms,
the Health Program booklets, which contain the Plan’s benefit provisions and are
adopted from year to year by Stallion, and the Summary Plan Description, which is
a summary of the material provisions of the Plan Document. Robertson is enrolled
specifically in the Plan’s Select Plan Managed Care PPO Program.
3
In July of 2011, Robertson was diagnosed with diffuse systemic sclerosis, a
rare autoimmune disease that causes the skin and other connective tissues in the
body to tighten and harden. BCAR 807.4 Without treatment, the disease can
attack tissues in internal organs and is fatal once it infiltrates the tissues of the
lungs or heart. BCAR 197, 303. Robertson initially received drug-oriented
treatment under the Plan, which was ineffective. BCAR 807. Her treating
physician, Dr. Richard Burt, Chief of the Division of Immunotherapy at
Northwestern University Feinberg School of Medicine in Chicago, therefore
recommended she have a hemapoietic stem cell transplant (“the Procedure”).
BCAR 807–08.
On November 8, 2013, Robertson sought pre-approval from Blue Cross for
the Procedure, specifically that she receive authorization to enroll in Dr. Burt’s
Food and Drug Association approved protocol, Randomized Study of Different
Non-myeloblative Conditioning Regimens with Hematopoietic Stem Cell Support
in Patients with Scleroderma. BCAR 25, 805–08. The protocol has a clinical trial
identifier, NCT01445821. BCAR 807. Blue Cross denied preapproval,
concluding that the Procedure is “experimental, investigational, and unproven.”
4
The administrative record is comprised of the Blue Cross bates stamped record filed at
Doc. 34 and the Stallion bates stamped record filed at Doc. 39. The Blue Cross record will be
cited as “BCAR [page].” The Stallion record will be cited as “SAR [page].”
4
BCAR 25, 28–29. The denial letter stated, “Per the data in peer-reviewed medical
literature, autologous stem cell transplant is not effective, reliable, and safe for
auto-immune diseases, including systemic sclerosis.” BCAR 28. The letter also
advised that “[t]he criteria used in making the adverse determination was [Health
Care Service Corp.] Medical Policy: Stem-Cell Transplant for Autoimmune
Disorders.” Id.
In early December, Dr. Burt appealed the decision on behalf of Robertson,
asking that the denial be overturned and that Robertson be allowed to enroll in the
clinical trial protocol. BCAR 25, 907–08. Robertson’s appeal was reviewed by an
independent review organization, which upheld Blue Cross’s previous denial.
BCAR 25, 42–43. The denial letter dated December 19, 2013, stated that the
Procedure is “experimental, investigational and unproven.” BCAR 42. The
decision was based on the conclusion that “[t]he proposed transplant for the
treatment of systemic sclerosis is part of a phase 3 randomized clinical trial and is
therefore considered investigational.” Id. The letter again referenced the Health
Care Service Corp. Medical Policy and advised,
The source of screening criteria utilized as guidelines in making this
determination was Blue Cross and Blue Shield of Texas Medical Policy
Guidelines, which are developed by the Blue Cross and Blue Shield of
Texas Medical Division and which take into consideration views of the
state and national medical communities, the guidelines and practices of
5
Medicare, Medicaid, or other government-financed programs, and peer
reviewed literature.
Id.
Robertson submitted her final appeal on February 12, 2014, which included
more than 300 pages of medical records, medical articles, physician letters, and
other documents. BCAR 25–26, 113–421. Robertson’s appeal was reviewed by a
different independent review organization, which again upheld the denial of
benefits. BCAR 26, 52–57. In its letter dated February 24, 2014, the review
organization concluded “[t]he requested autologous stem cell transplant . . . is
considered experimental/investigational based on the Medical Policy and
applicable Plan language.” BCAR 26, 52–57. The letter quoted the Health Care
Service Corp. Medical Policy provision and the Plan’s definition of
experimental/investigational. BCAR 55. The letter also summarized the
conclusion of a “recent review” that supports use of the Procedure but states that
ongoing trials “will determine whether the benefits of [the Procedure] outweigh
the risks.” BCAR at 56.
Robertson sued Stallion and Blue Cross on September 6, 2014, claiming
benefits under ERISA and seeking a declaration that the Plan provides coverage
for the Procedure and attorneys’ fees. (Compl., Doc. 1.)
6
DISCUSSION
I.
Motions to Strike and Expedite
As a preliminary matter, Robertson has filed two motions to strike and two
motions to expedite that are ripe for decision.
A.
Motion to Strike Reply Brief
At the request of Robertson for an expedited briefing schedule during the
preliminary pretrial conference, the Court entered an Order with the following
briefing schedule:
IT IS ORDERED that Plaintiff’s motion [for entry of judgment]
(Doc. 24) is DENIED SUBJECT TO RENEWAL as a motion for
summary judgment, pursuant to Rule 56.
IT IS FURTHER ORDERED that Defendants will have 28 days
from the date the motion for summary judgment and brief are filed to
file responses and cross-motions for summary judgment. Plaintiff will
have 10 days to file a reply.
(Doc. 33.)
After Robertson filed her reply, which also responded to Defendants’ cross
motions for summary judgment, Blue Cross filed a reply brief. (Doc. 60.)
Robertson moved to strike Blue Cross’s reply brief because it is not allowed
pursuant to the Court’s Order. (Doc. 62.) Blue Cross argues that the Local Rules
allow for a reply and that the Order did not preclude Defendants from filing a
reply. (Doc. 64.) Blue Cross also states that counsel “contacted Chambers to
7
clarify that the same ‘10 day’ reply period would apply to [Blue Cross] for its
Reply.” (Id. at 2.) There is no record or recollection of such a phone call by
anyone in my Chambers. Furthermore, a phone call of that nature would have
been inappropriate ex parte contact. The Court’s Management Order supersedes
the Local Rules for briefing deadlines, and the Order did not contemplate reply
briefs from Defendants. Blue Cross’s reply brief is stricken.
B.
Motion to Strike Declarations
Blue Cross attached three declarations to its cross motion for summary
judgment. (Docs. 49, 50, 51.) The declarations concern the process used by and
qualifications of the medical reviewers who reviewed Robertson’s request for
preapproval and appeals. Robertson wants to strike the declarations because they
are not a part of the administrative record. (Doc. 53.)
“[T]he record that was before the administrator furnishes the primary basis
for review.” Kearney v. Standard Ins. Co., 175 F.3d 1084, 1090 (9th Cir. 1999).
A “district court ha[s] discretion to allow evidence that was not before the plan
administrator ‘only when circumstances clearly establish that additional evidence
is necessary to conduct an adequate de novo review.’” Id. (quoting Mongeluzo v.
Baxter Travenol Disability Benefit Plan, 46 F.3d 938, 942 (9th Cir. 1995)). A
district court may also admit supplemental evidence to review a potential conflict
8
of interest. Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 970 (9th Cir.
2006) (en banc). The appropriate standard of review here is for an abuse of
discretion. And although Robertson argues that a conflict of interest exists, there
is no evidence in the record to support the allegation. Therefore, no additional
evidence is necessary. The declarations are stricken.
C.
Motions to Expedite
After briefing of the cross motions for summary judgment was complete,
Robertson filed two motions to expedite. (Docs. 65, 71.) Because the cross
motions for summary judgment are now resolved, the motions to expedite are
denied as moot.
II.
Cross Motions for Summary Judgment
A party is entitled to summary judgment if it can demonstrate that “there is
no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). Summary judgment is warranted where
the documentary evidence produced by the parties permits only one conclusion.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). Only disputes over
facts that might affect the outcome of the lawsuit will preclude entry of summary
judgment; factual disputes that are irrelevant or unnecessary to the outcome are
not considered. Id. at 248.
9
A.
Standard of Review
Robertson insists that Blue Cross’s denial of benefits can be reviewed under
a de novo standard. (Doc. 37 at 17.) Stallion and Blue Cross argue the denial
must be reviewed for an abuse of discretion. (Docs. 43 at 12; 46 at 17.) “[F]or a
plan to alter the standard of review from the default of de novo to the more lenient
abuse of discretion, the plan must unambiguously provide discretion to the
administrator.” Abatie, 458 F.3d at 963. The parties have stipulated that “[t]he
Plan confers discretionary authority to [Blue Cross] to construe terms of the Plan,”
(Stipulated Statement of Facts, Doc. 31 at 2), and the Plan unambiguously
provides discretion to Blue Cross, SAR 84–85. Therefore, an abuse of discretion
standard applies.
Robertson claims that a violation of ERISA procedural requirements
requires a de novo review and that Blue Cross “did just that” by failing to engage
in a medical necessity analysis and by withholding the information it relied on in
making its determination. (Doc. 37 at 19.) “Under ERISA, plan administrators
must follow certain practices when processing and deciding plan participants’
claims. . . . [but] an administrator’s failure to comply with such procedural
requirements ordinarily does not alter the standard of review.” Abatie, 458 F.3d at
971. Only “[w]hen an administrator engages in wholesale and flagrant violations
10
of the procedural requirements of ERISA, and thus acts in utter disregard of the
underlying purpose of the plan,” will the decision to deny benefits be reviewed de
novo. Id. When a case does not “fall into that rare class of cases,” any procedural
errors made by the administrator are instead “to be weighed in deciding whether
an administrator’s decision was an abuse of discretion.” Id. at 972.
There is no proof that Blue Cross engaged in “wholesale and flagrant
violations” of the ERISA procedural requirements. Blue Cross did not violate
ERISA by refusing to make a medical necessity determination, and Blue Cross’s
reliance on its determination that the Procedure is experimental/investigational
will be considered in determining whether the denial was an abuse of discretion.
Blue Cross met the procedural requirement to provide “adequate notice in writing”
of the reasons for denial and a “full and fair review” of the decision, 29 U.S.C. §
1133, by notifying Robertson of the policy provision it relied on, that additional
information was available “upon request and free of charge,” 29 C.F.R. §
2560.503-1(h)(2)(iii), and that the decision may be appealed. BCAR 28–29,
42–43, 52–57. Therefore, any procedural irregularities do not alter the standard of
review.
Robertson also argues that an inherent conflict of interest that affects a
benefits determination alters the standard of review and that Blue Cross had such a
11
conflict because of both its pecuniary interest in denying Robertson coverage and
its interest in establishing precedent for future denials of coverage for the
Procedure. (Doc. 37 at 20.) An “inherent conflict [may] exist[] when a plan
administrator both administers the plan and funds it.” Abatie, 458 F.3d at 967.
Yet such a conflict does not alter the standard of review and should instead be
“weighed as a factor” in determining whether there was an abuse of discretion in
denying benefits. Id. at 969 (internal quotation marks omitted).5
In this case, no such conflict of interest exists. Blue Cross is the Claims
Administrator and does not fund the Plan. (Doc. 31 at 2.) Also, Robertson has not
produced any evidence demonstrating that Blue Cross, as an operating division of
Health Care Service Corp., had a vested pecuniary interest in denying coverage or
that it sought to establish precedent for future denials of coverage. Not only does
the abuse of discretion standard apply, there is no conflict of interest to be
weighed as a factor in determining whether Blue Cross abused its discretion in
denying coverage.
The test for abuse of discretion is whether the court is “‘left with a definite
5
Robertson relies on Lang v. Long-Term Disability Plan of Sponsor Applied Remote
Technology, Inc., 125 F.3d 794, 797–98 (9th Cir. 1997), for the proposition that a conflict of
interest alters the standard of review. But Lang relied on Atwood v. Newmont Gold Co., 45 F.3d
1317 (9th Cir. 1995), which was overruled in its entirety by Abatie, 458 F.3d at 967.
12
and firm conviction that a mistake has been committed,’” and the court “may not
merely substitute [its] view for that of the fact finder.” Salomaa v. Honda Long
Term Disability Plan, 642 F.3d 666, 676 (9th Cir. 2011) (quoting United States v.
Hinkson, 585 F.3d 1247 (9th Cir. 2009) (en banc)). The considerations are
“whether application of a correct legal standard was ‘(1) illogical, (2) implausible,
or (3) without support in inferences that may be drawn from the facts in the
record.’” Id. “‘A plan administrator abuses its discretion if it renders a decision
without any explanation, construes provisions of the plan in a way that conflicts
with the plain language of the plan, or fails to develop facts necessary to its
determination.’” Pac. Shores Hosp. v. United Behavioral Health, 764 F.3d 1030,
1042 (9th Cir. 2014) (quoting Anderson v. Suburban Teamsters of N. Ill. Pension
Fund Bd. of Trustees, 588 F.3d 641, 649 (9th Cir. 2009)).
B.
Whether Blue Cross Abused Its Discretion in Denying Benefits
Without making a medical necessity determination, Blue Cross denied
preapproval of the Procedure because it concluded the Procedure is
experimental/investigational. Robertson argues the Procedure is not experimental
or investigational under the terms of the Plan and that the Procedure is medically
necessary, which “trumps” the experimental/investigational exclusion. (Doc. 37 at
9–15.)
13
The “Medical Limitations and Exclusions” provision of the Plan provides,
The benefits as described in this Benefit Booklet are not available for:
1.
Any services or supplies which are not Medically Necessary and
essential to the diagnosis or direct care and treatment of a
sickness, injury, condition, disease, or bodily malfunction.
2.
Any Experimental/Investigational services and supplies.
....
SAR 148.
1.
Experimental/Investigational
Robertson insists Blue Cross’s determination that the Procedure is
experimental/investigational was an abuse of discretion because the Plan’s clinical
trial exclusion does not apply to the Procedure. (Doc. 37 at 9.)
According to the Plan,
Experimental/Investigational means the use of any treatment,
procedure, facility, equipment, drug, device, or supply not accepted as
standard medical treatment of the condition being treated or any of such
items requiring Federal or other governmental agency approval not
granted at the time services were provided.
....
Standard medical treatment means the services or supplies that are in
general use in the medical community in the United States, and:
•
have been demonstrated in peer reviewed literature to have
scientifically established medical value for curing or alleviating
the condition being treated;
•
are appropriate for the Hospital or Facility Other Provider in
which they were performed; and
•
the Physician or Professional Other Provider has had the
14
appropriate training and experience to provide the treatment or
procedure.
The Claim Administrator for the Plan shall determine whether any
treatment, procedure, facility, equipment, drug, device, or supply is
Experimental/Investigational, and will consider the guidelines and
practices of Medicare, Medicaid, or other government-financed
programs in making its determination.
Although a Physician or Professional Other Provider may have
prescribed treatment, and the services or supplies may have been
provided as the treatment of last resort, the Claim Administrator still
may determine such services or supplies to be Experimental/
Investigational within this definition. Treatment provided as part of a
clinical trial or a research study is Experimental/Investigational.
SAR 156–57 (underlined emphasis added).
An employee benefit plan must be “established and maintained pursuant to a
written instrument.” 29 U.S.C. § 1102(a)(1). A plan fiduciary “shall discharge
[its] duties with respect to a plan . . . in accordance with the documents and
instruments governing the plan.” 29 U.S.C. § 1104(a)(1)(D). Likewise, a claim
for benefits under the statutory scheme may be brought by a plan participant or
beneficiary “to recover benefits due to [her] under the terms of the plan, to enforce
[her] rights under the terms of the plan, or to clarify [her] rights to future benefits
under the terms of the plan.” 29 U.S.C. § 1132(a)(1)(B). A claim for benefits
“therefore stands or falls by ‘the terms of the plan.’” Kennedy v. Plan Adm’r for
DuPont Sav. & Inv. Plan, 555 U.S. 285, 300 (2009) (quoting § 1132(a)(1)(B)).
15
The Plan’s provision that “[t]reatment provided as part of a clinical trial or a
research study is Experimental/Investigational” is unambiguous. There is no
question that Robertson sought to enroll in a phase 3 clinical trial, as both she and
Dr. Burt acknowledged. BCAR 807, 113. The clinical trial is described as a
“study” that will provide treatment to the participants in both the “control” and
“experimental” arms of the program, which is to run from 2011 to 2018. BCAR
186–94. The Plan must be enforced according to its terms, and Blue Cross
arguably construed the Plan’s experimental/investigational exclusion in a legally
reasonable way in denying preapproval of the Procedure, which was treatment
provided as a part of a clinical trial. See Gagliano v. Reliance Standard Life Ins.
Co., 547 F.3d 230, 239 (4th Cir. 2008) (“ERISA requires the Plan be administered
as written and to do otherwise violates not only the terms of the Plan but causes
the Plan to be in violation of ERISA.” (citing 29 U.S.C. § 1102(a)(1)).
Moreover, Dr. Burt acknowledged that the Procedure is not “standard
therapy” for severe systemic sclerosis. BCAR 808, 908. The medical literature
Robertson submitted with her final appeal shows that the Procedure is still under
investigation, is associated with treatment-related mortality, but is not “in general
use in the medical community” for the treatment of systemic sclerosis. BCAR
120–85.
16
Robertson claims that the clinical trial exclusion is inapplicable because the
clinical trial for which she seeks enrollment is not testing whether the Procedure
itself is safe and effective but rather is examining whether a less intense regimen
for the Procedure is safer and yet as effective as the standard regimen, which was
established during a prior clinical trial. (Doc. 37 at 10–11; BCAR 186–87.)
Although this argument may have merit, Robertson cites no authority or Plan
provision supporting her restricted definition of “clinical trial.” To the contrary,
the clinical trial exclusion broadly excludes “treatment provided as a part of a
clinical trial,” which in no way limits the exclusion to clinical trials testing
particular outcomes. BCAR 157 (emphasis added). Unfortunately, Blue Cross did
not abuse its discretion in relying on the clinical trial exclusion to deny benefits
under the Plan. It examined the needs of the Plan and ignored the needs of Lana
Robertson, a process protected by the rules cited.
Blue Cross also relied on the Health Care Service Corp. Medical Policy in
denying coverage. Health Care Service Corp. “has medical policies that serve as
guidelines for [its operating divisions, including Blue Cross of Texas] for health
care benefit coverage decisions, which may vary according to the different
products and benefit plans offered by each state.” Available at
http://www.hcsc.com/medical _policies.html (accessed Apr. 14, 2015). Health
17
Care Service Corp.’s Medical Policy for Stem-Cell Transplant for Autoimmune
Disorders states that the Procedure “[i]s considered experimental, investigational
and unproven for treatment of any autoimmune disease, including but not limited
to MS, JRA, RA, SLE, systemic sclerosis/scleroderma, and TIDM.” BCAR
90–91.
Robertson claims that Health Care Service Corp.’s guidelines provide no
medical or legal basis for denying her request for coverage because the guidelines
have not been peer reviewed or incorporated into the Plan documents. (Doc. 37 at
12.) Her view is that the discussion in the relevant Medical Policy demonstrates
that the Procedure is more effective than drug therapy, which necessitates
coverage because drug therapy has been ineffective in her case. (Id.) The Policy
provision states that the Plan documents govern, BCAR 90, and a claim for
benefits “stands or falls by the terms of the plan,” Kennedy, 555 U.S. at 300
(internal quotation marks omitted). Where Blue Cross reasonably relied on the
Plan’s clinical trial exclusion, as discussed above, its additional reliance on the
Medical Policy is of no consequence regardless of whether or not the Policy
supports coverage.
2.
Medical Necessity
Robertson insists Blue Cross abused its discretion by not making a medical
18
necessity determination and that a finding of medical necessity would “trump” the
experimental/investigational exclusion. (Doc. 37 at 14.)
According to the Plan,
Medically Necessary or Medical Necessity means those services or
supplies covered under the Plan which are:
1.
2.
3.
4.
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
Provided in accordance with and are consistent with generally
accepted standards of medical practice in the United States; and
Not primarily for the convenience of the Participant, his
Physician, Behavioral Health Practitioner, the Hospital, or the
Other Provider; and
The most economical supplies or levels of service that are
appropriate for the safe and effective treatment of the Participant.
...
The medical staff of the Claim Administrator shall determine whether
a service or supply is Medically Necessary under the Plan and will
consider the views of the state and national medical communities, the
guidelines and practices of Medicare, Medicaid, or other governmentfinanced programs, and peer reviewed literature. Although a Physician,
Behavioral Health Practitioner or Professional Other Provider may have
prescribed treatment, such treatment may not be Medically Necessary
within this definition.
SAR 161.
Robertson maintains that the experimental/investigational exclusion cannot
apply to services that are medically necessary and that, at the very least, the Plan is
ambiguous and must be construed in her favor. (Doc. 37 at 16.) However,
19
according to the terms of the Plan, a service must be both “covered” and satisfy
the four criteria to be medically necessary. SAR 161. The Plan unambiguously
states that benefits are not available for experimental/investigational services.
SAR 148. Thus, “[t]he Plan covers treatment which is medically necessary but
limits treatment to that which is not experimental.” Tillery v. Hoffman Enclosures,
Inc., 280 F.3d 1192, 1200 (8th Cir. 2002) (cited in Rush Prudential HMO, Inc. v.
Moran, 536 U.S. 355, 380 n.10 (2002) (Some insurance contracts may “guarantee
medically necessary care, but then modify that obligation by excluding
experimental procedures from coverage.”). To interpret the Plan to cover all
medically necessary treatments regardless of any exclusions or limitations would
render those exclusions meaningless. See Johnson v. Am. United Life Ins. Co.,
716 F.3d 813, 820 (4th Cir. 2013). As a consequence, the medically necessary
provision is not ambiguous and it does not “trump” the experimental/
investigational exclusion. Blue Cross did not legally abuse its discretion by not
making a medically necessary determination.
Robertson also maintains that under the reasonable expectations doctrine,
the experimental/investigational exclusion is unenforceable. (Doc. 37 at 15–16.)
Under that doctrine, where a “plan’s attempted exclusion was not clear, plain, and
conspicuous enough to negate the claimant’s objectively reasonable expectations
20
of coverage, it was unenforceable and the plan was liable for the coverage at
issue.” Winters v. Costco Wholesale Corp., 49 F.3d 550, 554 (9th Cir. 1995).
Although Robertson may reasonably expect coverage for any treatment that is
medically necessary under the terms of the Plan, the experimental/investigational
exclusion is plain, conspicuous, and is enforceable. It is listed as the second
exclusion under the “Medical Limitations and Exclusions” section of the Booklet,
just under the first limitation for medical necessity. SAR 148. The exclusion is
also listed in bold-face type and defined in the “Definitions” section of the
Booklet. SAR 156–57. The clinical trial exclusion is buried within the
experimental/investigational definition, but there is sufficient record evidence
supporting the conclusion that the Procedure is also experimental/investigational
because it is not “standard medical treatment.” BCAR 156–57.
Robertson included in her final appeal paperwork, and highlights now, four
instances where Blue Cross and Blue Shield entities approved the same Procedure
because it was medically necessary, despite a prior determination that it was
experimental/investigational. BCAR 278–95. One of these instances involves
Blue Cross and Blue Shield of Illinois, which is also a division of Health Care
Service Corp. BCAR 292–94. Although it is disconcerting that Blue Cross
entities may be making inconsistent determinations, the relevant plan language
21
under which those determinations were made are not a part of the record. Thus,
the consequential moral problem in how Lana Robertson’s case was decided. It is
unknown how narrow or broad the medical necessity and experimental or
investigational definitions6 are in those cases, all of which involved plans and
claims administrators that are different from this case. Those cases are therefore
not relevant and cannot be used in analyzing whether Blue Cross abused its
discretion in this case under the terms of Robertson’s Plan.
Robertson’s medical condition cannot be conflated with her legal condition
so that the Court is “left with a definite and firm conviction that a mistake has
been committed.” Salomaa, 642 F.3d at 676 (internal quotation marks omitted).
Under the law, Blue Cross acted legally in denying preapproval of the Procedure
because Robertson’s enrollment in the phase 3 clinical trial is excluded as
experimental/investigational under the terms of the Plan.
CONCLUSION
The case is a troubling example of how sometimes the law and justice can
pass like ships in the night. Robertson faces death as a result of a rare disease, the
treatment of which her insurance will not cover despite her valid enrollment in the
6
See Stallion’s Brief (Doc. 43 at 22 (establishing that actual experimental/investigational
definitions vary widely from plan to plan and gathering cases that demonstrate the spectrum of
definitions)).
22
Plan. Robertson’s doctors have stated that the Procedure is medically necessary,
yet Defendants deny her that treatment under the legal shield of the terms of the
Plan (while other Health Care Service Corp. entities approve the same treatment
for other individuals). ERISA was enacted to protect the interests of participants
in employee benefits plans. 28 U.S.C. § 1001. The result here does not comport
with that intent. The masks of the law in this case conceals the person at risk of
dying by a deferential standard of review and the rules of legal interpretation. The
result is a determination that Blue Cross’s denial of benefits was legally, but
perhaps not morally, reasonable.
Accordingly, IT IS ORDERED that Plaintiff’s Motion for Summary
Judgment (Doc. 35) is DENIED.
IT IS FURTHER ORDERED that Defendant Stallion’s Motion for
Summary Judgment (Doc. 40) and Defendant Blue Cross’s Cross Motion for
Summary Judgment (Doc. 45) are GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Strike Declarations
(Doc. 53) and Motion to Strike Reply Brief (Doc. 62) are GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s Motions to Expedite (Docs. 65,
71) are DENIED AS MOOT.
IT IS FURTHER ORDERED that this case is CLOSED. The Clerk of Court
23
is directed to enter judgment in favor of Defendants and against Plaintiff.
DATED this 15th day of April, 2015.
24
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