S. et al v. Beacon Health Options et al
Filing
41
MEMORANDUM DECISION granting 29 Defendants Motion for Summary Judgment ; denying 31 Plaintiffs Motion for Summary Judgment. Signed by Judge Jill N. Parrish on 12/21/21. (alf)
Case 2:20-cv-00460-JNP-JCB Document 41 Filed 12/21/21 PageID.1904 Page 1 of 19
FILED
2021 DEC 21 PM 1:10
CLERK
U.S. DISTRICT COURT
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
L.S. and B.S.,
Plaintiffs,
v.
BEACON HEALTH OPTIONS and the
CHEVRON MENTAL HEALTH &
SUBSTANCE ABUSE PLAN,
Defendants.
MEMORANDUM DECISION AND
ORDER DENYING PLAINTIFFS’
MOTION FOR SUMMARY JUDGMENT
AND GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
Case No. 2:20-cv-00460-JNP-JCB
District Judge Jill N. Parrish
Magistrate Judge Jared C. Bennett
This action arises under the Employee Retirement Income Security Act of 1974 (ERISA),
29 U.S.C. § 1001, et seq., and is before the court on the parties’ cross-motions for summary
judgment.
BACKGROUND
This dispute involves the denial of benefits allegedly due to L.S. and B.S. (collectively,
“Plaintiffs”) under their ERISA employee group health benefit plan, the Chevron Mental Health
and Substance Abuse Plan (“the Plan”). Chevron Corporation is the Plan Sponsor and
Administrator. CV Rec. at 69. 1 Beacon Health Options (“BHO”) is the Claims Administrator for
1
Some pages in the record are Bates stamped with “CV” and others with “BHO.” Accordingly,
the court will refer to “CV Rec.” for those pages Bates stamped with CV and “BHO Rec.” for
those pages Bates stamped with BHO. For brevity, the court has also removed excess leading zeros
from the Bates stamp numbers.
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the Plan. Id. at 6. Under the Plan, BHO has discretionary authority to interpret Plan provisions and
make decisions regarding specific claims for benefits and appeals of benefit denials. Id. at 175.
L.S. was a Plan participant at all times relevant to the claims in this case and his son, B.S., was a
Plan beneficiary.
Plaintiffs sought care for B.S.’s mental health and substance use conditions at Catalyst
Residential Treatment Center (“Catalyst”) in Utah. B.S. received care at Catalyst from June 28,
2016 to May 22, 2017. BHO Rec. at 5. BHO denied benefits for the entirety of B.S.’s stay at
Catalyst. Id. Plaintiffs contend that BHO’s denial of benefits caused them to pay over $75,000 in
unreimbursed, out-of-pocket expenses. ECF No. 2 ¶ 32.
I.
THE PLAN
The Plan offers benefits for medically necessary mental health and substance abuse care.
CV Rec. at 40. The plan does not cover “[s]ervices that aren’t considered medically necessary and
appropriate,” as determined by the claims administrator. Id. at 51. The Plan defines medically
necessary services as those that are
•
•
•
•
•
•
•
•
Intended to prevent, diagnose, correct, cure, alleviate or preclude
deterioration of a diagnosable condition (ICD-9 or DSM-IV) that threatens
life, causes pain or suffering or results from illness or infirmity.
Expected to improve an individual’s condition or level of functioning.
Individualized, specific and consistent with symptoms and diagnosis and
not in excess of patient’s needs.
Essential and consistent with nationally accepted standard clinical evidence
generally recognized by mental health or substance abuse care professionals
or publications.
Reflective of a level of service that is safe, where no equally effective, more
conservative and less costly treatment is available.
Not primarily intended for the convenience of the recipient, caretaker or
provider.
No more intensive or restrictive than necessary to balance safety,
effectiveness and efficiency.
Not a substitute for non-treatment services addressing environmental
factors.
2
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Id. at 101.
The Plan defines a residential treatment center (“RTC”) as a program that “[p]rovides
structured mental health and/or substance abuse treatment that includes medical supervision by a
doctor (M.D./D.O.) and is staffed by a multidisciplinary team, which may include doctors (M.D.s,
Ph.D.s), psychologists, social workers, substance abuse counselors, registered nurses (R.N.s) and
other health care professionals.” Id. at 229. Upon Plaintiffs’ request, BHO clarified that in order
for Catalyst to be considered medically necessary under Beacon’s RTC criteria, the program must
include
•
•
•
•
•
•
Confirmation of weekly visits with an MD Psychiatrist at Catalyst.
A program schedule that demonstrates structured therapeutic programming,
led by a licensed professional, for at least 6 hours of therapeutic activities
of some kind, 7 days per week. Progress notes should include
documentation regarding [B.S.’s] progress toward treatment goals during
these activities.
Evidence of 24-hour supervision by licensed personnel. This does not
include ‘on-call’ personnel.
An individualized treatment plan for [B.S.], including specific goals and,
when progress reports are noted, [B.S.’s] progress toward those
individualized goals.
Ongoing clinical updates that contain documentation that Catalyst is
monitoring his symptoms, providing adequate behavioral and medical
treatment, and that provided services continue to meet medical necessity.
In order to successfully be paid by Beacon and the Chevron plan, the facility
must bill using industry-accepted coding for residential treatment centers,
etc.
BHO Rec. at 146-47.
The Plan includes a notification requirement for out-of-network services. The Plan pays
for 80% of allowed inpatient mental health and substance abuse benefits for out-of-network
services if the member notifies BHO within two days of admission. CV Rec. at 34-37. If the
member fails to meet the notification requirement, then the Plan pays 60% of allowed charges for
out-of-network services. Id.
3
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II.
B.S.’S CONDITION AND TREATMENT
B.S. grew up abroad, primarily in Australia. BHO Rec. at 123. B.S. and his family moved
to Houston, Texas in January 2014. Id. Within two months, B.S.’s parents began noticing changes
in B.S.’s behavior. Id. B.S. withdrew from his family and schoolwork. Id. at 123-24. B.S.’s
condition continued to deteriorate; in August 2014, he had a major anxiety attack. Id. at 124. As a
result, B.S.’s parents started taking him to counseling in fall 2014. Id. In February 2015, B.S. had
another anxiety attack. Id. B.S. began seeing a psychiatrist, who prescribed a number of
medications, including EnLyte, Prozac, and Quillivant. Id.
But the medications did not resolve B.S.’s mental health struggles. On March 22, 2016,
B.S. attempted suicide by driving his car at seventy miles per hour into a concrete median. Id. B.S.
was subsequently admitted to Houston Behavioral Hospital (“HBH”). Id. at 124-25. Doctors at
HBH adjusted his medication and B.S. stepped down to an intensive outpatient program after eight
days of hospitalization. Id. at 125. B.S. remained in intensive outpatient care through May 2016.
Id. After ending intensive outpatient care, B.S. deteriorated further, to the point that he began to
self-medicate and his parents refused to leave him alone, even at night. Id. at 126. B.S.’s condition
became so poor that his counselor recommended immediate hospitalization for stabilization. Id.
B.S.’s parents readmitted him to HBH on June 23, 2016. Id.
After several days of hospitalization, HBH abruptly discharged B.S. when BHO indicated
it would not pay for further treatment at HBH. Id. B.S.’s psychiatrist at HBH recommended
immediate transfer to an RTC facility based on B.S.’s condition. Id. at 126-27 (“She recommended
[B.S.] be transferred directly to the RTC with a specific recommendation not to bring him home . . .
because of his suicidal thoughts and previous history.”). B.S.’s parents selected Catalyst, and
arranged for a transport to Utah. Id. at 127. B.S. received care at Catalyst from June 28, 2016 to
4
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May 22, 2017. In August 2016, while at Catalyst, B.S. attempted suicide while unsupervised in
the bathroom.
III.
DENIAL OF BENEFITS
After B.S. was admitted to Houston Behavioral Hospital for the second time on June 23,
2016, L.S. began investigating residential treatment centers that B.S. could transition to after his
discharge from HBH. Id. at 126. Plaintiffs assert that on June 24, 2016, L.S. spoke with a BHO
representative about RTC programs, including Catalyst. Id. Plaintiffs contend that the BHO
representative told L.S. that Catalyst was an accredited RTC and therefore BHO would cover the
facility without any further information from L.S. Id. Specifically, Plaintiffs indicate that the BHO
representative told L.S. that BHO would cover 70% of the cost of Catalyst, up to the $2,000 annual
out-of-pocket maximum, at which time BHO would cover 100% up to BHO’s limit for RTC
treatment. Id. L.S. states that he confirmed this information with two other BHO representatives.
Id. BHO further advised L.S. that nothing needed to be done until B.S. was admitted to Catalyst,
at which point the insurance coverage would be organized with Catalyst. Id. Based in part on this
information, B.S.’s parents enrolled him at Catalyst. However, BHO represents that it has no record
of the aforementioned conversations between L.S. and BHO representatives. BHO states that it
keeps careful records of all conversations between representatives and Plan participants.
Moreover, BHO notes that the percentages purportedly cited by the BHO representatives do not
accurately reflect the Plan coverage.
BHO did not pay for any services at Catalyst. As a result, Plaintiffs and Catalyst requested
a retrospective review on September 9, 2016. Id. at 28, 564. During a retrospective review, BHO
reviews services already provided for retrospective authorization. Following a retrospective review
by Dr. Vaswani, BHO sent Plaintiffs an initial denial letter on September 23, 2016. Id. at 104-06.
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BHO informed Plaintiffs that it could not authorize coverage for B.S. because “the selected nonnetwork facility does not appear to provide intense enough therapeutic programming to meet your
needs.” Id. at 104. BHO pointed to two pieces of evidence for its conclusion. First, the Catalyst
program “does not include weekly psychiatrist visits.” Id. Second, it “does not appear to provide
sufficient structured/supervised programming.” Id. Although BHO did not include this information
in its denial letter, BHO’s additional rationale for denying coverage was the fact that B.S. attempted
to hang himself in August 2016 while in Catalyst’s care. Id. at 27. BHO did not deny that B.S.
needed RTC-level care. Id. at 104 (“[M]edical necessity appears to have been met for 24 hour
services at the mental health residential level of care . . . .”). Rather, it “recommend[ed] [B.S.] seek
mental health residential services at an alternate facility that provides more intensive daily
programming.” Id. Despite BHO’s denial of coverage, B.S.’s parent did not transfer him to a
facility that met BHO’s requirements.
BHO permits providers to request reconsideration within three days of an initial denial. Id.
at 105. The reconsideration involves a conversation between the treating practitioner and BHO,
and does not constitute part of the appeals process. Id. The clinical director at Catalyst requested
reconsideration. BHO’s reviewer, Dr. Cohen, spoke with Shayden Bertagnolli, LMFT, on
September 26, 2016. Id. at 36. Based on this conversation, Dr. Cohen noted that “no psychiatrist
is involved in the treatment program” and that “med[ication]s [are] provided by [a] nurse
practitioner.” Id. Dr. Cohen concluded that “the specific residential treatment program under
review cannot be validated as medically necessary to address your treatment needs.” Id. Dr. Cohen
provided two reasons. First, “there is no validation of at least weekly active involvement of a
psychiatrist to oversee your treatment.” Id. And second, “it is reported that while attending the
program you had a serious attempt to end your life and it is not possible to validate that there is
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sufficient staff training and programmatic structure including supervision of staff; completion of
an appropriate treatment plan; and oversight regarding an appropriate medication regimen to
provide for your safety.” Id. Again, Dr. Cohen confirmed that B.S. would qualify for coverage “at
an alternative residential facility where an active and appropriate treatment plan could be
provided.” Id. 2
Plaintiffs sent several letters to BHO that BHO construed as a level one appeal. Id. at 144344, 1446-52. In their first letter they reasserted that BHO representatives had previously stated that
BHO would cover care at Catalyst. Id. at 1443. In response to BHO’s concerns about the lack of
weekly psychiatric treatment, Plaintiffs stated that “we have contacted Catalyst and they will
arrange the on staff psychiatrist to have weekly consultations with [B.S.].” Id. And in response to
BHO’s concerns about adequate supervision, Plaintiffs noted that even when hospitalized at HBH,
B.S. was permitted to use the bathroom unsupervised. Id. Therefore, Plaintiffs argued, the
bathroom suicide attempt at Catalyst would not have been prevented even had B.S. been in
hospitalized care. Plaintiffs’ second letter outlined B.S.’s medical history, including his increasing
anxiety, suicide attempt, and hospitalizations. Id. at 1446-52. On October 19, 2016, BHO denied
Plaintiffs’ level one appeal. Id. at 108-10. BHO provided an identical conclusion and rationales as
stated in the initial denial. Id. at 108.
Plaintiffs filed a level two appeal on January 5, 2017. Id. at 120-36. The appeal included
B.S.’s full medical record at Catalyst up to that point. Id. at 177-598. On January 26, 2017, BHO
denied Plaintiffs’ appeal. Id. at 112. BHO again confirmed that “medical necessity appears to have
2
Based on the record, it is not clear whether BHO conveyed this message to Plaintiffs. The
statement is included at the end of the reviewer’s notes, and it is written in the language typically
included in denial letters (i.e., addressing the letter to B.S.). But the record does not include
evidence of a reconsideration denial letter transmitted to Plaintiffs. Nevertheless, these rationales
were clearly conveyed to Plaintiffs on numerous occasions.
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been met for 24 hour services at the mental health residential level of care.” Id. But, just as in the
previous denials, BHO found that Catalyst “does not appear to provide intense enough therapeutic
programming to meet your needs.” Id. As evidence, BHO stated that “[t]he facility does not include
weekly psychiatrist visits and does not appear to provide sufficient structured/supervised
programming.” Id. Specifically, the reviewer found that “[t]here is a total of only 15 hours per
week of treatment, including 3 hours of treatment, 5 hours of group therapy, and 7-8 hours of
experiential recreation.” Id. Again, BHO confirmed that B.S. could have sought treatment at a
“facility where an active and appropriate treatment plan could be provided.” Id.
Plaintiffs submitted the remainder of B.S.’s treatment records from Catalyst to BHO on
August 10, 2017. Id. at 600-1420. BHO did not communicate further with Plaintiffs.
IV.
THE PARTIES’ ARGUMENTS
Plaintiffs argue that B.S. was entitled to coverage at Catalyst. They argue that BHO
indicated multiple times that it would cover care at Catalyst prior to B.S.’s admission at Catalyst.
And Plaintiffs argue that B.S.’s care at Catalyst met all of BHO’s stated requirements once Catalyst
arranged for weekly psychiatrist visits for B.S.
Defendants contend that BHO made a reasonable decision to deny coverage for B.S.’s stay
at Catalyst. They argue that there is no evidence in the record demonstrating that Catalyst followed
through on its promise to provide weekly psychiatric visits. They further argue that the evidence
in the record shows that Catalyst lacked the supervision and structure required for BHO to approve
it as a medically necessary and appropriate RTC for B.S.’s treatment.
LEGAL STANDARD
Under Federal Rule of Civil Procedure 56(a), “[t]he court shall grant summary judgment
if the movant shows that there is no genuine dispute as to any material fact and the movant is
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entitled to judgment as a matter of law.” When both parties move for summary judgment in an
ERISA case, the parties have effectively “stipulated that no trial is necessary” and thus “summary
judgment is merely a vehicle for deciding the case.” LaAsmar v. Phelps Dodge Corp. Life,
Accidental Death & Dismemberment & Dependent Life Ins. Plan, 605 F.3d 789, 796 (10th Cir.
2010) (citation omitted). In these cases, “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.” Id. (citation omitted).
ANALYSIS
I.
STANDARD OF REVIEW FOR DENIAL OF BENEFITS CLAIM
Before evaluating BHO’s denial of benefits for B.S.’s treatment at Catalyst, the court must
first determine the proper standard of review to apply to its evaluation. The court finds arbitrary
and capricious review appropriate.
A.
ERISA’s Framework for Judicial Review
A plan administrator’s denial of ERISA benefits is reviewed de novo “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). Where a plan vests such discretion in the plan administrator, a reviewing court will instead
apply “a deferential standard of review, asking only whether the denial of benefits was arbitrary
and capricious.” Weber v. GE Grp. Life Assurance Co., 541 F.3d 1002, 1010 (10th Cir. 2008)
(citations omitted). Here, the parties do not dispute that the Plan expressly gives BHO the
discretion to develop criteria and determine whether a claimant is entitled to benefits under the
Plan. ECF No. 33 at 9-10. But even where a claims administrator has discretion, a court may apply
a less deferential standard if a claims administrator’s decision failed to comply with ERISA’s
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procedural requirements. See Rasenack ex rel. Tribolet v. AIG Life Ins. Co., 585 F.3d 1311, 131617 (10th Cir. 2009). 3
B.
Applicable Standard of Review
Plaintiffs argue that procedural irregularities marred BHO’s review process and require the
court to apply de novo review. Specifically, Plaintiffs contend that Defendants failed to
demonstrate that they had taken any of the information Plaintiffs submitted during their appeals
into account. Plaintiffs further claim that Defendants made no attempt to engage in meaningful
dialogue with Plaintiffs, as required by ERISA.
The meaningful dialogue requirement stems from subsections (g) and (h) of 29 C.F.R.
§ 2526.503-1. See Metzger v. UNUM Life Ins. Co. of Am., 476 F.3d 1161, 1168 n.4 (10th Cir. 2007)
(stating that the subsection (g) and (h) requirements “enable claimants to submit informed
responses to the adverse decision and to engage in meaningful dialogue with the plan
administrator”). “Subsection (g) . . . requires in part that any notice of denial must (1) provide the
3
The court notes that the Tenth Circuit has explicitly left open the question of whether the
substantial compliance rule still applies under the revised 2002 ERISA regulations and has
declined to resolve the issue on several subsequent occasions. See, e.g., Kellogg v. Metro. Life Ins.
Co., 549 F.3d 818, 828 (10th Cir. 2008) (“We find it unnecessary to conclusively decide the
continuing validity of the ‘substantial compliance’ rule . . . .”); LaAsmar, 605 F.3d at 800 (“We
need not decide whether that ‘substantial compliance’ doctrine still applies to the revised regulation
at issue here . . . .”); Hancock v. Metro. Life Ins. Co., 590 F.3d 1141, 1152 n.3 (10th Cir. 2009)
(“Because Ms. Hancock has failed to show any noncompliance, we need not consider whether
substantial compliance is sufficient under the January 2002 revisions of ERISA.”); Rasenack, 585
F.3d at 1316 (“Because AIG has failed [the] substantial compliance test . . . we need not decide
whether a minor violation of the deadlines or other procedural irregularities would entitle the
claimant to de novo review under the 2002 amendments.”). Plaintiffs argue that the court should
instead apply the standard set forth in Halo v. Yale Health Plan, 819 F.3d 42, 53-54, 58 (2d Cir.
2016) (holding that failure to comply with any part of the regulations triggers de novo review,
unless the irregularities were inadvertent and harmless). Here, because BHO clearly complied with
ERISA’s procedural requirements under both the substantial compliance and Halo standards, the
court need not wade into the debate as to whether the “substantial compliance” doctrine still applies
under the 2002 ERISA regulations.
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specific reason for the adverse determination, (2) reference the specific provision warranting
denial, and (3) for medical-necessity denials, explain the scientific or clinical judgment supporting
the determination.” Mary D. v. Anthem Blue Cross Blue Shield, 778 F. App’x 580, 589 (10th Cir.
2019) (unpublished). Here, all three denial letters met those requirements: they cited failure to
provide care at the appropriate intensity as the specific reason for denial; they referenced the
residential treatment criteria that governed the medical necessity determination; and they provided
rationales and clinical evidence supporting each rationale. Thus the letters comply with subsection
(g).
And, in a broader sense, the evidence in the record demonstrates that BHO meaningfully
engaged in dialogue with Plaintiffs. The purpose behind the meaningful engagement requirement
is to allow members to clearly understand and respond to the insurance company’s rationales for a
claim denial. See Gilbertson, 328 F.3d at 635-36. BHO clearly expressed its rationale for denying
coverage. It repeated this rationale a number of times. And it even communicated with Plaintiffs
outside of the formal review process. Specifically, on November 9, 2016, a Senior Account
Executive for BHO clarified to Plaintiffs the exact steps that Catalyst would need to take in order
to be considered a medically necessary program for B.S. BHO Rec. at 146-47. BHO also offered
to provide in-network referrals a number of times. Id. at 39 (“October 11, 2016 . . . CCM can given
[sic] inn[etwork] referrals. Mom did not request at this time.”); Id. at 62 (providing a residential
treatment center referral on August 1, 2016). And BHO repeatedly reiterated its commitment to
providing RTC-level care to B.S., provided that the facility operated at the appropriate intensity of
care. These indicia of meaningful engagement demonstrate that BHO clearly communicated its
rationales for denial throughout the process and engaged with Plaintiffs to come up with a solution.
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Thus, Plaintiffs cannot support their argument that BHO failed to engage Plaintiffs during the
appeals process.
Subsection (h) requires that medical reviewers take into account materials provided by a
claimant during the appeals process. Mary D., 778 F. App’x at 589 (noting that under 29 C.F.R.
§ 2560.503-1(h)(2)(iv), BHO must “‘take’ these materials and arguments ‘into account’”). Here,
the record indicates that BHO’s reviewers considered the records submitted by Plaintiffs.
Reviewers referenced Plaintiffs’ submissions, including B.S.’s medical records from Catalyst.
BHO Rec. at 48. And the reviewers’ notes indicate that the reviewers actually read through the
records. See id. at 39 (noting that BHO doctor “reviewed the clinical information”); id. at 48
(indicating that BHO reviewer read Plaintiffs’ submission where BHO reviewer includes
information from appeal letter in summary). But just as in Mary D., Plaintiffs’ counsel “doesn’t
cite to any authority—nor are we aware of any—that required [BHO] to affirmatively respond to
these submissions.” Mary D., 778 F. App’x at 589; see also Joel S. v. Cigna, 356 F. Supp. 3d 1305,
1319 (D. Utah 2018) (finding that “Cigna’s failure to discuss [evidence submitted by plaintiffs]
does not make the denial arbitrary and capricious”). Thus BHO met its burden of taking into
account information provided by Plaintiffs.
Because Plaintiffs have failed to demonstrate any procedural irregularities in BHO’s
decision, the court applies the arbitrary and capricious standard to its review of BHO’s denial of
benefits.
II.
ARBITRARY AND CAPRICIOUS REVIEW OF BHO’S DENIAL OF BENEFITS
Applying arbitrary and capricious review means that this court will uphold the
administrator’s determination “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). “The Administrator’s decision need not
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be the only logical one nor even the best one” as long as it is “sufficiently supported by facts within
his knowledge.” Finley v. Hewlett-Packard Co. Emp. Benefits Org. Income Prot. Plan, 379 F.3d
1168, 1176 (10th Cir. 2004) (quoting Kimber v. Thiokol Corp., 196 F.3d 1092, 1098 (10th Cir.
1999)). In fact, BHO need only show that its “decision resides somewhere on a continuum of
reasonableness—even if on the low end.” Adamson, 455 F.3d at 1212 (citation omitted).
In addition to considering whether the decision is predicated on a reasoned basis, the court
must also consider whether the decision is rooted in substantial evidence because a lack of
substantial evidence indicates an arbitrary and capricious decision. Id. “Substantial evidence
means more than a scintilla . . . yet less than a preponderance.” Id.
A.
Reasoned Basis and Substantial Evidence
Unlike many ERISA cases, the parties here do not dispute the appropriate level of care for
B.S. Rather, they disagree whether Catalyst provided proper RTC-level care to B.S. The question
for the court, then, is whether the evidence in the record supports BHO’s determination that
Catalyst did not provide appropriate RTC-level care to B.S.
BHO provided two rationales for denying Plaintiffs’ claim. First, it argued that Catalyst did
not provide sufficient supervision and structured programming. Second, it argued that Catalyst
failed to provide weekly psychiatric services. Ultimately, “it’s [Plaintiff’s] burden to show that [the
child’s] residential treatment was medically necessary, not the administrator’s burden to show they
determined it wasn’t.” Mary D., 778 F. App’x at 595; Hancock, 590 F.3d at 1155 (finding that the
“[plaintiff] bore the burden of proving the occurrence of a covered loss [i.e., eligibility for
coverage]” in the life insurance context); Pruter v. Loc. 210’s Pension Tr. Fund, 858 F.3d 753,
762 (2d Cir. 2017) (“[A] plaintiff bears the burden of demonstrating entitlement to ERISA
benefits.”). In satisfying its burden, the plaintiff must point to “the presence of any record that
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might support a contrary finding.” Mary D., 778 F. App’x at 595. The court addresses whether
each of BHO’s rationales (lack of supervision, structure, and psychiatric services) derives support
from the record.
i.
Supervision and Structured Programming
The evidence is murky as to whether B.S. was subject to 24-hour supervision. See BHO
Rec. at 146 (requiring “[e]vidence of 24-hour supervision by licensed personnel”). BHO records
note that Catalyst provided “24hr/7 days per week medically-monitored services” Id. at 83. It is
not clear exactly what “medically-monitored services” includes, and, specifically, whether it
includes supervision. BHO’s records also indicate that B.S. was on “line of sight watch – 10-15
feet from a mentor at all times.” Id. at 30. But this was only “for the weekend” and he was
“reassess[ed] Monday.” Id. The record does not indicate if he remained on line of sight watch, or
any other form of 24/7 monitoring, upon reassessment. Of course, B.S.’s suicide attempt also raises
concerns that Catalyst did not provide sufficient supervision. Id. at 35. Absent any affirmative
evidence that Catalyst provided 24-hour supervision, Plaintiffs have failed to establish that
Catalyst provided sufficient supervision for B.S.
With regard to structured programming, a BHO reviewer’s notes record that the Catalyst
Office Manager, Mikell, stated “about 6 hours is structured programming.” Id. at 83-84. However,
it is unclear whether this refers to six hours per day, or six hours per week. See id. at 146 (requiring
“[a] program schedule that demonstrates structured therapeutic programming, led by a licensed
professional, for at least 6 hours of therapeutic activities of some kind, 7 days per week”).
Catalyst’s website, included as an exhibit to Plaintiffs’ appeal letter, indicates that “[e]ach student
receives a minimum of 15 hours of therapeutic treatment weekly.” Id. at 164. The website, of
course, does not indicate exactly how many hours of treatment B.S. received each day. But, again,
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Plaintiffs fail to point to any affirmative evidence demonstrating that B.S. received six hours of
therapeutic programming each day. In fact, B.S.’s master treatment plan indicates that Catalyst
planned to engage him in family therapy once per week, group therapy three to four times per
week, and individual therapy once per week. Id. at 1315. Similarly, the treatment request form
submitted by Catalyst to BHO indicates that B.S. was receiving “2 hours weekly individual
therapy, 4x weekly group therapy, 1x weekly family therapy, 2x weekly recreation therapy.” Id. at
22. Even if each of these sessions were several hours, it would not reach the level of structured
programming required by BHO for RTC care.
ii.
Physician Oversight
The evidence in the record clearly supports BHO’s contention that B.S. did not receive the
requisite amount of psychiatric care at Catalyst. BHO repeatedly notified B.S.’s family that the
facility must provide at least one hour of psychiatric care weekly. But it is unclear that B.S. ever
saw a psychiatrist while at Catalyst. His initial psychiatric evaluation appears to have been
completed by a nurse practitioner, “J. Blake Petrick, PMHNP.” 4 Id. at 573. And the same nurse
practitioner managed his medications. See, e.g., id. at 958, 1011, 1073. Most of the substantive
progress and treatment notes in his record come from a licensed marriage and family therapist,
Shayden Bertagnolli. Further, the treatment records list four members of B.S.’s treatment team,
none of whom were licensed psychiatrists: Therapist Lisa Dickman, LCSW; Academic Director
Nicole Butler, MS; Clinical Director Adam Poll, LMFT; and Therapist Shayden Bertagnolli,
LMFT. See, e.g., id. at 650, 663, 679.
Indeed, the only evidence provided by Plaintiffs suggesting that B.S. saw a psychiatrist
while at Catalyst was the letter from L.S., stating that “we have contacted Catalyst and they will
4
PMHNP is shorthand for a psychiatric-mental health nurse practitioner.
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arrange the on staff psychiatrist to have weekly consultations with [B.S.].” Id. at 1443. This
assertion does not meet Plaintiffs’ burden. To prevail on their claim, Plaintiffs would need to point
to evidence in the record that Catalyst followed through on its promise that B.S. would see a
psychiatrist. But “Plaintiffs concede that the Catalyst records do not, in and of themselves,
demonstrate that Plaintiffs’ representations were correct.” ECF No. 38, at 12. Plaintiffs’ briefing
repeatedly casts doubt on BHO’s conclusions about the intensity of care received by B.S. But
Plaintiffs point to no evidence that Catalyst met the Plan’s medical necessity criteria for residential
treatment care by providing any psychiatric care, much less weekly psychiatrist visits.
In fact, it is unclear if B.S. ever saw any sort of licensed doctor while at Catalyst. The basic
definition of RTC care in the Plan requires “medical supervision by a doctor (M.D./D.O.).” See
CV Rec. at 229. But Plaintiffs have provided no evidence—outside of a screenshot of Catalyst’s
website showing that Dr. Matt Gardiner was on staff, see BHO Rec. at 167,—to establish that a
doctor supervised B.S.’s care at Catalyst. The record contains no treatment notes from a doctor,
nor any psychiatric evaluations completed by a doctor. There is no record that a doctor on staff
ever communicated with B.S.’s family. In fact, Dr. Gardiner’s name does not appear at any point
in B.S.’s medical records from Catalyst. Instead, all of the psychiatric notes and the psychiatric
evaluation included in the record are signed by the nurse practitioner on staff. In sum, the record
strongly supports the conclusion that—in addition to failing to provide weekly psychiatric visits—
Catalyst failed to ensure that a licensed doctor oversaw B.S.’s care at Catalyst in any capacity.5
These are basic, minimum requirements for RTC care under the terms of Plan. Thus, BHO’s
5
This court regularly reviews administrative records in ERISA cases. In this court’s experience, it
is common for the record to contain therapeutic notes, medication management notes, psychiatric
evaluations, and correspondence with parents authored by a child’s RTC doctor or psychiatrist.
The court finds the glaring absence of any such record in this case compelling.
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decision to deny B.S. coverage at Catalyst, on the basis that the program did not meet BHO’s
requirements for RTC care, was eminently reasonable and supported by substantial evidence.
B.
BHO’s Promise to Pay Benefits
Plaintiffs assert that BHO’s prior representations regarding coverage at Catalyst entitled
them to benefits coverage. Specifically, Plaintiffs contend that BHO represented that it would
cover treatment at Catalyst without need for any additional information prior to B.S.’s parents’
decision to place him at Catalyst. ECF No. 31, at 5. Plaintiffs maintain that BHO representatives
conveyed this information to them telephonically. But BHO claims that it has no record of any
such conversation. Thus, the only evidence that these phone calls occurred is L.S.’s assertion in
her appeals letter that she received the above information from BHO.
This court is sympathetic to Plaintiffs’ plight. It appears that L.S. may have received
misleading information from BHO representatives prior to B.S.’s placement at Catalyst. But this
court’s role under ERISA is simply to evaluate whether BHO made a reasoned benefits
determination, supported by substantial evidence. Whether BHO representatives made misleading
promises to Plaintiffs prior to the claims procedure is not part of the analysis. Considering the
record in front of BHO, the decision to deny coverage was reasonable for the reasons discussed
above.
This court also understands that Plaintiffs may feel frustrated that they did not receive
feedback about the deficiencies in the Catalyst program until September 23, 2016, nearly three
months after B.S. enrolled in Catalyst. But regardless of what BHO represented to Plaintiffs on the
phone, the Plan documents clearly state that mental health and substance use treatment out-ofnetwork inpatient services “[r]equire notification to [BHO] within two business days of
admittance.” CV Rec. at 34. As the Plan states, “[n]otification to [BHO] allows [BHO] to review
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your provider’s proposed treatment plan for medical necessity and advise your provider how
many . . . days of care will be covered based on your medical need.” Id. Had Plaintiffs promptly
notified BHO of B.S.’s admission to Catalyst, as required by the Plan, BHO could have pointed
out Catalyst’s shortcomings and facilitated B.S.’s transfer to another, covered facility more rapidly.
The Plan further outlines how to file a claim and explains how members receive notification of the
benefit determination. See id. at 53, 56. At no point does the Plan represent that preauthorization
via telephone constitutes a guarantee of benefits coverage. At most, the Plan provides that members
can call BHO for assistance locating in-network providers. Id. at 127. In fact, at least one BHO
representative reminded B.S.’s parents “to call back for authorization when [appointment is]
scheduled.” BHO Rec. at 63.
Plaintiffs may have genuinely believed that Catalyst was the best environment for B.S. But
faced with the information that Catalyst did not meet BHO’s RTC standards, Plaintiffs were not
entitled to continue insisting on coverage for care at Catalyst. The Plan is only contractually
required to “pay[] benefits for covered charges for services, supplies, and treatment that are
medically necessary and appropriate, as determined by the claims administrator.” CV Rec. at 34
(emphasis added). And RTC-level care without any sort of physician supervision clearly did not
meet the standards set out by BHO and the Plan.
In sum, the court’s review is limited to asking whether BHO’s determinations were
arbitrary and capricious. And because the court concludes that substantial evidence supports
BHO’s determination, it must affirm BHO’s denial of coverage for B.S.’s treatment.
CONCLUSION
For the reasons stated above, the court GRANTS summary judgment for Defendants and
DENIES summary judgment for Plaintiffs.
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DATED December 21, 2021.
BY THE COURT
______________________________
Jill N. Parrish
United States District Court Judge
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