P. et al v. Aetna Life Insurance Company et al

Filing 37

MEMORANDUM DECISION AND ORDER-granting 24 Motion for Summary Judgment ; denying 25 Motion for Summary Judgment. Signed by Judge David Sam on 9/11/17. (jmr)

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
**********************************************************
MICHAEL P. et al.,
)
Plaintiffs,

)

vs.

)

AETNA LIFE INSURANCE
COMPANY, and BECTON,
DICKINSON AND COMPANY
GROUP LIFE AND HEALTH
PLAN,

MEMORANDUM DECISION
AND ORDER

)
)
)

Civil No. 2:16-cv-00439- DS

)
Defendants.
**********************************************************
I. INTRODUCTION
Plaintiffs are parents Michael and Karilyn P. and their daughter Kirstyn, who seek
to recover benefits for Kirstyn’s residential treatment under 29 U.S.C. § 1132(a)(1)(B).
Through his employment and during the relevant time period, Michael P. was a participant
in the Becton, Dickinson and Company Group Life and Health Plan (the “Plan”)1 and
Karilyn and Kirstyn were beneficiaries of the Plan. The Plan was administered by Aetna
Life Insurance Company (“Aetna”). The Plan is a self-funded employer sponsored welfare
benefit plan that is governed by the Employee Retirement Income Security Act of 1974
(“ERISA”), 29 U.S.C. § 1001 et seq.

The Joint Pre-litigation Record, filed under seal, consists of Plan and other
documents Bates stamped AETPER0001-AETNAPER00534, BDPLAN000001-000058,
and SCH0001-00016.
1

Kirstyn, who has a history of mental, behavioral and emotional disorders, was
treated at New Haven Residential Treatment Center (“New Haven”). Aetna by letter dated
July 13, 2015, denied Plaintiffs’ claim for services because New Haven did not meet the
Plan’s definition of a residential treatment facility and, therefore, it was not a covered
service. (AETPER00130-134).
Plaintiffs filed two appeals with Aetna.
By letter dated September 19, 2015, Plaintiffs filed a level one appeal asserting that
because New Haven is duly licensed in Utah it should be covered as a residential
treatment center, and that Aetna’s denial of benefits was a violation of the Mental Health
Parity and Addictions Equity Act of 2008 (the “Parity Act”). (AETPER00123-128).
Aetna failed to issue its level one appeal decision within 60 days as required.
(AETPER00484; 29 C.F.R. § 2560.503-1(i)(1)(i)). On January 1, 2016, Plaintiffs called
to request a decision on the appeal. Aetna acknowledges the delay in notifying Plaintiffs
of its decision, but asserts that a decision on the appeal was made on October 24, 2015.
( AETPER0046-048 & 00260). Aetna finally issued its denial of Plaintiffs’ claims by letter
dated December 31, 2015, stating that Plaintiffs failed to comply with precertification
procedures as required, and repeating that New Haven did not qualify as a residential
treatment facility under the Plan. (AETNAPER00154-156).
Plaintiffs filed a level two appeal on February 8, 2016, arguing among other things,
that-- precertification cannot be a basis for denial because the Plan states that failure to
precertify would only result in a reduction of benefits; they were not given a fair level one
appeal because Aetna’s response contained no explanation as to how the reviewer arrived

2

at its conclusion; residential treatment was a covered benefit; and, Aetna’s failure to pay
for treatment at New Haven violated the Parity Act. (AETNAPER00159-165).
Aetna reported its final appeal decision to Plaintiffs in a letter dated February 24,
2016, upholding its denial because Plaintiffs failed to comply with required precertification
procedures set forth in the Plan. (AETPER00219-221).
This litigation followed.

The parties have filed cross-motions for summary

judgement.
II. Standard of Review2
“[A] denial of benefits challenged under [ERISA] is to be reviewed under a de novo
standard unless the benefit plan gives the administrator or fiduciary discretionary authority
to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire &
Rubber Co. V. Bruch, 489 U.S. 101, 115 (1989). If the plan gives the administrator
discretionary authority, courts “employ a deferential standard of review, asking only
whether the denial of benefits was arbitrary and capricious.” Weber v. GE Group Life
Assur. Co., 541 F.3d 1002, 1010 (10th Cir. 2008) (internal quotation marks and citation

In an ERISA case, “summary judgment is merely a vehicle for deciding the case;
the factual determination of eligibility for benefits is decided solely on the administrative
record, and the non-moving party is not entitled to the usual inferences in its favor.”
LaAsmar v. Phelps Dodge Corp. Life, Accidental Death & Dismemberment & Dependent
Life Ins. Plan, 605 F. 3d 789, 796 (10Cir. 2010) (citation and internal quotation marks
omitted).
2

3

omitted).

3

Aetna contends that an arbitrary and capricious standard of review applies,

while Plaintiffs urge that de novo review is applicable.4
It is undisputed that Plan language properly delegates discretionary authority to
Aetna which ordinarily suggests deferential review. However, Plaintiffs assert that de
novo review applies because Aetna failed to strictly comply with Plan requirements for
review of their September 19, 2015 appeal. The Court agrees. 5
Procedural irregularities, such as the plan administrator’s failure to comply with
ERISA or Plan mandated time limits in deciding an administrative appeal, “require”
application of de novo review. LaAsmar v. Phelps Dodge Corp. Life, Accidental Death &
Dismemberment & Dependent Life Ins. Plan, 605 F. 3d 789, 796 (10th Cir. 2010) (emphasis
added) (applying de novo review where the plan administrator resolved the administrative
appeal 170 days after receiving the appeal instead of within 60 days as required by ERISA
regulations and plan provisions). See also Rasenack ex rel. Tribolet v. AIG Life Ins. Co.,
585 F.3d 1311, 1315-1318 (10th Cir. 2009) (de novo review applied where plan
administrator unduly delayed both in initially deciding the claim and in resolving the

Under the arbitrary and capricious standard, the court’s “review is limited to
determining whether the interpretation of the plan was reasonable and made in good faith.”
Kellogg v. Metropolitan Life Ins. Co., 549 F.3d 818, 825-26 (10th Cir. 2008)(internal
alterations and quotation marks omitted). An administrator’s decision will be upheld “so
long as it is predicated on a reasoned basis.” Adamson v. Unum Life Ins. Co. of Am., 455
F.3d 1209, 1212 (10th Cir. 2006).
3

Under a de novo standard of review, the court reviews the decision of the plan
administrator for correctness without deferring to the plan administrator’s decision.
Gilbertson v. AlliedSignal, Inc., 172 Fed. Appx. 857, 860 (10th Cir. 2006).
4

The Court rejects Plaintiff’s argument that ERISA requirements require de novo
review for Aetna’s failure to engage in a meaningful dialogue with Plaintiffs. See note 6.
5

4

subsequent appeal); Hancock v. Metro Life Ins. Co., 590 F.3d 1141, 1152 (10th Cir. 2009)
(“de novo review may be appropriate if the benefit-determination process did not
substantially comply with ERISA regulations”). It is uncontroverted that Aetna failed to
notify Plaintiffs of its initial decision within the time-frame required.
In opposing de novo review, Aetna, in essence, argues that it has substantially
complied with the relevant time requirements. See Def.[‘] Mem. Opp’n at 17 (“Here,
Plaintiffs have failed to show anything more than a de minimis departure from the
procedural terms of the Plan with respect to timeframe for mailing members notice of an
appeals decision, and have not shown any substantive harm.”).
This Court, like other courts, need not decide the “continuing validity of the
substantial compliance test we have used to avoid creating a rule that would automatically
permit de novo review for every violation of the deadlines.” Rasenack, 585 F.3d at 1316.
As explained in LaAsmar:
We need not decide whether that “substantial compliance” doctrine still
applies to the revised regulation at issue here, 29 C.F.R. § 2560.503-1,
because even assuming it does apply, MetLife did not substantially comply
here with ERISA’s requirement of a timely resolution of an administrative
appeal. In our cases addressing the prior regulation, we stated that an
administrator substantially complied if the procedural irregularity was ”(1)
‘inconsequential’; and (2) in the context of an on-going, good-faith exchange
of information between the administrator and the claimant.” Finley, 379 F.3d
at 1174 (quoting Gilbertson, 328 F.3d 635); see also Rasenack, 585 F.3d at
1317. Assuming, without deciding, that test would apply under the revised
regulation, MetLife has failed to meet it because the 170-day delay in this
case did not occur within “the context of an on-going, good-faith exchange
of information between the administrator and the claimant.” Finley, 379 F.3d
at 1174 (quoting Gilbertson, 328 F.3d at 635).
LaAsmar, 605 F. 3d at 800. The same holds true for this case. Aetna points to no
evidence of record that there was any such ongoing good faith exchange of information
5

between it and Plaintiffs. Therefore, even assuming that the substantial compliance
doctrine is still valid, Aetna has failed to meet that test. The Court, therefore, will apply a
de novo standard of review.
III. DISCUSSION
A. Denial of Coverage
For the reasons that follow, the Court agrees with Aetna that because New Haven
does not meet the Plan’s definition of a Residential Treatment Facility, and because
Plaintiffs failed to obtain precertification as required, Plaintiffs’ claim for coverage at New
Haven was properly denied.
1. Residential Treatment Facility
Aetna initially denied Plaintiffs’ claim because New Haven did not meet the Plan’s
definition of a residential treatment facility. The Plan defines Residential Treatment Facility
as an institution that meets a list of requirements, including the following: “Services are
managed by a licensed Behavioral Health Provider who, while not needing to be
individually contracted, needs to (1) meet the Aetna credentialing criteria as an
individual practitioner, and (2) function under the direction/supervision of a licensed
psychiatrist (Medical Director).” (AETPER00503) (emphasis added).
An Aetna representative spoke to New Haven’s Jessica E., CSW, on July 10, 2015,
to determine whether New Haven met Plan requirements for a residential treatment
facility. (AETNAPER00531). The record of that conversation reflects that services at New
Haven are not “managed by a licensed Behavioral Health Provider who, while not needing
to be individually contracted, needs to (1) meet the Aetna credentialing criteria as an

6

individual practitioner, and (2) function under the direction/supervision of a licensed
psychiatrist (Medical Director).” Id.

New Haven informed Aetna that it did not have a

licensed psychiatrist as a medical director, but that the facility was instead directed by a
licensed clinical social worker. Based on that information Aetna informed Plaintiffs that
above cited specific Plan Sponsor Criteria were not met and, therefore, the service was not
a covered service.
Plaintiffs assert various reasons why Aetna’s denial of their claims should be
reversed. Each is discussed below and rejected.
a. failure to substantively respond
Plaintiffs urge that because Aetna failed to substantively respond to various issues
raised in their appeals, Aetna’s denial must be reversed. The Court disagrees.
As Plaintiffs note, an ERISA plan administrator is required to:
(1) provide adequate notice in writing to any participant or beneficiary
whose claim for benefits under the plan has been denied, setting forth the
specific reasons for such denial, written in a manner calculated to be
understood by the participant, and
(2) 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 (emphasis added)..

7

The record is clear that Aetna provided Plaintiff notice in writing stating the reason
for its initial denial (AETPER00130), denial of their level one appeal (AETPER00154-156),
and denial of their level two appeal (AETPER00219-221).6
A full and fair review requires: “knowing what evidence the decision-maker relied
upon, having an opportunity to address the accuracy and reliability of the evidence, and
having the decision-maker consider the evidence presented by both parties prior to
reaching and rendering his decision.” Sandoval v. Aetna Life and Cas. Ins. Co., 967 F.2d
377, 381 (10th Cir. 1992) (citations & quotation marks omitted). See also 29 C.F.R. §
2560.503-1(h)(2) (outlining essential procedural requirements for a full and fair review –
60 days to appeal; opportunity to submit comments, documents, records etc.; reasonable
access to documents, records and other information; and “a review that takes into account
all comments, documents, records, and other information submitted by the claimant
relating to the claim, without regard to whether such information was submitted or
considered in the initial benefit determination”).

Plaintiffs also assert that “Aetna failed to engage in a meaningful dialogue during
the appeals process.” Pls.[‘] Reply Mem. at 3. See also Pls.[‘] Mot. at 17. The authority
they rely on, however, requires a clear explanation for any denial, and if additional
information is needed for the plan administrator to make a decision, the administrator must
ask for it. See Gaither v. Aetna Life Ins. Co., 394 F.3d 792, 807 (10th Cir. 2004); Gilbertson
v. Allied Signal, Inc., 328 F.3d 625, 635 (10th Cir. 2003) (same). See also 29 C.F.R. §
2560.503-1(h)(2)(iv) (appeal of an adverse benefit determination to “[p]rovide for a review
that takes into account all comments, documents, records, and other information submitted
by the claimant relating to the claim, without regard to whether such information was
submitted or considered in the initial benefit determination”). Here, Plaintiffs were provided
with a clear explanation for denial, which did not require additional information from
Plaintiffs for Aetna to make its decision. And as discussed in the body of this decision, the
record reflects that Aetna considered all relevant information.
6

8

The record reflects that Aetna afforded Plaintiffs a full and fair review at both level
one and level two appeals as required. (AETPER00154-156, AETNAPER00219-221).
Plaintiffs’ protestations that “Aetna’s denials did not address in any meaningful way the
points raised by [Plaintiffs]”, Pls.[‘] Mot. at 19, is unsupported by authority and obviously
different from the requirement that “the decision-maker consider the evidence presented
by both parties prior to reaching and rendering his decision.” Sandoval, 967 F. 2d at 381.
Aetna in its responses to Plaintiffs’ appeals states that it considered all available
information, including the first appeal request, the second appeal request, the original
claims, Aetna policies and procedures, Aetna’s precertification database, Aetna’s provider
database, and the summary plan description for Becton Dickinson Health Plan.
(AETPER00154-156, AETNAPER00219-221) There simply is no evidence before the
Court that Aetna failed in affording Plaintiffs a full and fair review.
b. licensed health provider
Plaintiffs’ also contend that New Haven qualified for coverage under the Plan
because it was licensed by the State of Utah as a residential facility for youth. This is so,
Plaintiffs reason, because “Behavioral Health Provider” is defined in Plan documents as
“[a] licensed organization or professional providing diagnostic, therapeutic or psychological
services for behavioral health conditions.” (AETPER00489).
Plaintiffs’ position is rejected.

Meeting applicable licensing standards is only one

of numerous Plan requirements. (AETPER00502-503). A contract is to be read giving
meaning to all terms and ignoring none. Utah Transit Auth. v. Greyhound Lines, Inc. 355
P. 3d 947, 959 (Utah 2015).

Under Plaintiffs’ position, the Licensed Psychiatrist

requirement would be duplicative of the Licensing Standards requirement and
9

unnecessary. Such reasoning runs afoul of accepted rules of contract interpretation.7
c. ambiguous language
The Court likewise rejects Plaintiffs’ position that the Plan language on which Aetna
relies for its denial is ambiguous. Plaintiffs acknowledge that “the [Plan] language
unequivocally requires that individually licensed clinicians have to function under the
direction or supervision of a licensed psychiatrist”, Pls.[‘] Mem. Opp’n at 25, but urge that
“[a] reasonable reader is left to wonder whether the parenthetical Medical Director is ...
simply an example of a licensed psychiatrist who provides direction or supervision to other
individual clinicians or .... that a psychiatrist, acting is [sic] Medical Director, is a
prerequisite for a residential treatment facility to qualify for coverage under the Plan.” Id.
at 25-26.
“Ambiguity exists where a plan provision is reasonably susceptible to more than one
meaning, or where there is uncertainty as to the meaning of the term.” Admin. Comm. of
Wal-Mart Asoc. Health and Welfare Plan. v. Willard, 393 F.3d 1119, 1123 (10th Cir. 2004)
(internal quotation marks omitted). In determining whether policy language is ambiguous,
a court interprets the policy according to its plain meaning. Rasenack v. AIG Life Ins. Co.
585 F.3d 1311, 1318 (10th Cir. 2009). Language is given “its common and ordinary
meaning as a reasonable person in the position of [the plan] participant not the actual

In any event, Plaintiffs never offered any evidence that New Haven functioned
‘under the direction/supervision of a licensed psychiatrist” as the Plan requires.
(AETPER00130, AETPER00503). Their argument that a staff psychiatrist was in charge
is not supported by the record. See. n. 8.
7

10

participant, would have understood the words to mean.” Blair v. Metro. Life Ins. Co., 974
F.2d 1219, 1221 (10th Cir. 1992) (emphasis in original).
The Court concludes that a reasonable person giving the Plan language its common
and ordinary meaning would understand that services are to be provided by a behavioral
health provider who must be under the direction/supervision of someone who is a licensed
psychiatrist. (AETPER000503). The Court agrees with Aetna that the “issue is not
whether any of the licensed psychiatrists at New Haven have the ‘honorific title’ of Medical
Director, but whether the services are managed by an individual who functions under the
direction/supervision of a licensed psychiatrist.” Def.[‘s] Reply Mem. at 9. “The Licensed
Psychiatrist Requirement is a requirement of the Plan for determining whether a particular
facility is recognized by the Plan as a Residential Treatment Facility in the first instance.
It is not related to a particular claimant’s treatment.”8 Id. at 11.
Having concluded that the foregoing terms are not ambiguous, the Court will not
apply the doctrine of contra proferentem, by which ambiguities are construed against the
drafter, as Plaintiffs urge. See Miller v. Monumental Life Ins. Co., 502 F.3d 1245, 12531254 (10th Cir. 2007) (when the standard of review is de novo and the terms of an ERISA

Plaintiffs admit that ‘the Plan clearly states that licensed professionals at New
Haven must be directed or supervised by a psychiatrist”. Pls.[‘] Opp’n Mem. at 26. They
assert, however, that because the record reflects that a psychiatrist, William Bunn, D.O.,
was part of Kirstyn’s treatment team, it is “irrational” not to believe that the psychiatrist as
“the most highly credentialed and qualified member of the treatment team”, id, was not
directing or supervising the treatment. The record does not support Plaintiffs’ supposition.
Kirstyn’s Master Treatment Plan clearly lists her primary therapist as Jessica Endres and
provides for her to meet only once a month with the Consulting Psychiatrist for purposes
such as evaluation of “anxiety and OCD symptoms for medication review”, and “mood
fluctuation”. (AETPER00314-321).
8

11

plan are ambiguous, the doctrine of contra proferentem applies and ambiguities are
construed against the drafter of the plan).
d. Parity Act
The Parity Act was “designed to end discrimination in the provision of coverage for
mental health and substance use disorders as compared to medical and surgical
conditions in employer-sponsored group health plans and health insurance coverage
offered in connection with group health plans.” Am. Psychiatric Ass’n v. Anthem Health
Plans, 50 F. Supp. 3d 157, 160 (D. Conn. 2014), aff’d, 821 F. 3d 353 (2d Cir. 2016)
(quoting Coal For Parity, Inc. v. Sebelius, 709 F. Supp. 2d 10, 13 (D.D.C. 2010)).
(1) post hoc rationale
The Court rejects Plaintiffs’ assertion that Aetna’s opposition to its Parity Act
position in this litigation must be disregarded because Aetna failed to present that
opposition during the pre-litigation appeal process. Plaintiffs correctly note that “Tenth
Circuit law is clear about the inability of either party in an ERISA benefits recovery case to
introduce facts for the first time in litigation that could and should have been presented in
the pre-litigation appeal process.” Pls.[‘] Opp’n Mem at 29. However, the Court agrees
with Aetna that it has not attempted to introduce new facts or rationales for its decision to
deny Plaintiffs’ claim for treatment, which was that services at New Haven were nor a

12

covered benefit. Rather Aetna simply has responded to Plaintiffs’ positions pressed in this
litigation.9
(2) Parity Act compliance
Plaintiffs in the alternative urge that Aetna’s denial of coverage violates the Parity
Act because “[t]he requirements Aetna imposed on residential treatment facilities to be
eligible for coverage under the Plan are more stringent than the requirement the Plan
provides for either rehabilitation facilities or skilled nursing facilities to be eligible for
coverage under the Plan.” Pls.[‘] Opp’n Mem. at 32. Plaintiffs reason this is so because
the Plan does not require that an eligible rehabilitation facility be directed or supervised by
a medical doctor, and because the Plan allows a “Skilled Nursing Facility” to be supervised
by a physician or an R.N.

Id. at 32-34. Plaintiffs conclude that these restrictive

requirements can fairly be characterized as nonquantitative treatment limits in the Plan that
run afoul of the Parity Act.10

Plaintiffs presented no substantive argument regarding the Parity Act during the
pre-litigation process. Plaintiffs in both their first appeal letter (AETOER00127) and their
second appeal (AETPER00164-65) simply conclude that the Parity Act mandates
coverage. Plaintiffs’ conclusory statements are not “specifically articulated in the
administrative record” and Aetna’s opposition to Plaintiffs’ articulated position in these
proceedings does not constitute a prohibited “post hoc rationale”. See Spradley v. OwensIllinois Hourly Employees Welfare Ben. Plan, 686 F.3d 1135, 1140-41 (10th Cir. 2012)
(generally discussing post hoc rationale).
9

“Treatment limitations include both quantitative treatment limitations, which are
expressed numerically (such as 50 outpatient visits per year) and nonquantitative treatment
limitations, which otherwise limit the scope or duration of benefits for treatment under a
plan or coverage.” 29 C.F.R. § 2590.712(a). See also id at (c)(4)(ii) (providing illustrative
list of nonquantitative treatment limitations).
10

13

The Court is not persuaded that Aetna’s denial of coverage in this case violates the
Parity Act. Plaintiffs provide no case authority for their position. As Aetna notes, the
difference in requirements is not necessarily an improper limitation on mental health care,
but recognition of the inherent difference in treatment at those facilities.

Federal

regulations provide a standard for scrutinizing nonquantitative treatment limitations.
A group health plan (or health insurance coverage) may not impose a
nonquantitative treatment limitation with respect to mental health ...
benefits in any classification unless, ... any processes, strategies,
evidentiary standards, or other factors used in applying the
nonquantitative treatment limitation to mental health ... benefits in the
classification are comparable to, and are applied no more stringently
than, the processes, strategies, evidentiary standards, or other factors
used in applying the limitation with respect to medica/surgical benefits
in the classification.
29 C.F.R. § 2590.712(c)(4)(i) (emphasis added). Examples provided in the regulations
suggest that when “evidentiary standards are applied in a manner that is based on clinically
appropriate standards of care for a condition” the plan is compliant with the Parity Act
“even if the application of the evidentiary standards does not result in similar numbers of
visits, days of coverage, or other benefits utilized for mental health conditions or substance
use disorders as it does for any particular medical/surgical condition. Id. at (c)(4)(iii)
Example 4. Plaintiffs’ supposition fails to consider that the Plan differences they note may
be properly based on clinically appropriate standards. They point to no evidence of record
which persuades the Court that the Plan is noncompliant with the Parity Act.
2. precertification
On appeal, Plaintiffs also were informed that benefits were denied because they
failed to obtain precertification. The Plan provides that “[s]tays in a Residential Treatment

14

Facility for treatment of mental disorders and substance abuse” require precertification.
(AETPER000425). New Haven is such a facility. The Plan further provides:
A precertification benefit reduction will be applied to the benefits paid if you
fail to obtain a required precertification prior to incurring medical expenses.
This means Aetna will reduce the amount paid towards your coverage, or
your expenses may not be covered. You will be responsible for the unpaid
balance of the bills.
You are responsible for obtaining the necessary precertification from Aetna
prior to receiving services from an out-of-network provider. Your provider
may precertify your treatment for you; however you should verify with Aetna
prior to the procedure, that the provider has obtained precertification from
Aetna. If you treatment is not precertified by you or your provider, the
benefit payable may be significantly reduced or your expenses may not be
covered.
Id. (emphasis in original).
Kirstyn P. was admitted to New Haven on June 29, 2015. There is no record
evidence that Plaintiffs sought precertification for Kirstyn’s stay prior to her admission.11
In any event, because New Haven did not meet Plan criteria for a Residential
Treatment Facility, the stay would not have been covered even if precertification had been
requested.

Although Plaintiffs dispute that they failed to seek precertification, the only
supporting evidence they cite is AETPER00010, which as Aetna notes “is a printout of a
telephone log that identifies it as a Benefit Inquiry dated June 23, 2015, not a Request for
Precertification.” Def.[‘s[ Reply Mem. at 3.
Plaintiffs’ claim that “Aetna acknowledged that a request for precertification had
been submitted and denied”, Pls.[‘] Opp’n Mem. at 9, citing AETPER00048, appears to
the Court to be based on nothing more than notes of a telephone call from Karilyn P.,
received by Aetna in the early hours of January 1, 2016. (AETPER00048, see also
AETPER00046-47). Those documents do not support Plaintiffs’ position that
precertification was requested and denied.
11

15

a. benefit reduction for failure to precertify
Plaintiffs assert that “even if precertification was not sought or was initially denied,
the Plan calls for only a $250 reduction in the amount to be paid by Aetna”. Pls.[‘] Opp’n
Mem. at 35 (citing SCH0016). Plaintiffs’ position is rejected. The document Plaintiffs
reference provides:
The Booklet contains a complete description of the precertification program.
Refer to the “understanding Precertification” section for a list of services and
supplies that require precertification.
Failure to precertify your covered expenses when required will result in a
benefits reduction as follows:
P
A $250 benefit reduction will be applied separately to each type of
expense.
(SCH00016) (emphasis added). Because Plaintiffs’ claim was not a covered expense, the
foregoing provision does not apply.12
IV. CONCLUSION
For the reasons stated, IT IS ORDERED that Aetna’s Motion for Summary

As noted, with regard to precertification of out-of-network providers and benefits,
the Plan clearly provides that “[i]f your treatment is not precertified by you or your provider,
the benefit payable may be significantly reduced or your expenses may not be covered.”
(AETPER00425) (emphasis in original). A chart in that same document reflects that if
precertification is not requested and would not have been covered if requested, then the
expense is not covered. Id. The same chart also reflects that if precertification is requested
and denied, then the expenses are not covered, but the denial may be appealed. Id.
12

16

Judgment (Doc. #24) is GRANTED, and Plaintiffs’ Motion for Summary Judgment (Doc.
#25) is DENIED.
Dated this 11th day of September, 2017
BY THE COURT:

DAVID SAM
SENIOR JUDGE
UNITED STATES DISTRICT COURT

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