A. et al v. Tufts Health Plan et al

Filing 84

MEMORANDUM DECISION and Order - Plaintiffs' 59 Motion for Summary Judgment is GRANTED and Defendants' 57 , 58 Motions for Summary Judgment are DENIED. On Plaintiffs' cause of action for wrongful denial of Plan benefits, the court REVERSES the denial of Plaintiff M.A.'s benefits for her entire residential treatment at Fulshear and REMANDS to Cigna for proper reconsideration. The court retains jurisdiction to reconsider Plaintiffs' request for attorney's fees and costs following Cigna's reconsideration of Plaintiffs' benefits claim on remand. Signed by Judge Robert J. Shelby on 3/10/2025. (mh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
H.A., and M.A.,
Plaintiffs,
v.
TUFTS HEALTH PLAN, and CIGNA
BEHAVIORAL HEALTH,
Defendants.

MEMORANDUM DECISION AND
ORDER GRANTING PLAINTIFFS’
MOTION FOR SUMMARY JUDGMENT
AND DENYING DEFENDANTS’
MOTIONS FOR SUMMARY
JUDGMENT
Case No. 2:22-cv-00476-RJS-DBP
Chief Judge Robert J. Shelby
Chief Magistrate Judge Dustin B. Pead

Now before the court are the parties’ cross-motions for summary judgment. For the
reasons set forth below, the court GRANTS Plaintiffs’ Motion 1 and DENIES Cigna Behavioral
Health and Tufts Health Plan’s Motions. 2
FACTUAL BACKGROUND
This case arises from an insurance coverage dispute for residential mental health
treatment Plaintiff M.A. received at Fulshear Ranch Academy (“Fulshear”) from August 5, 2020
to May 22, 2021. 3 The facts in the Motions are largely undisputed. Plaintiffs lodge no specific
objection to any numbered facts in Defendants’ Motions—though they state Cigna minimizes 4
M.A.’s mental health struggles and relied on internal notes “not communicated to the Plaintiffs
1

Dkt. 59, Plaintiffs’ Motion for Summary Judgment (Plaintiffs’ Motion).

Dkt. 57, Cigna Behavioral Health Motion for Summary Judgment (Cigna’s Motion); Dkt. 58, Tufts Health Plan
Motion for Summary Judgment (Tufts’ Motion).

2

3

Cigna’s Motion at 1.

See Dkt. 70, Plaintiffs’ Opposition to Cigna’s Motion for Summary Judgment (Plaintiffs’ Opposition to Cigna’s
Motion) at 3; Dkt. 71, Plaintiffs’ Opposition to Tufts’ Motion for Summary Judgment (Plaintiffs’ Opposition to
Tufts’ Motion) at 3–4.

4

prior to litigation.” 5 Cigna likewise complains “Plaintiffs fail to provide broader context,” but
other than one unopposed correction to a date, Cigna does not dispute Plaintiffs’ facts. 6 For its
part, Tufts disputes “in part” some of Plaintiffs’ stated facts either because Plaintiffs do not
define or explain certain terms, 7 do not provide complete statements, 8 state characterizations as
facts, 9 state legal conclusions, 10 or imply objectionable inferences. 11 However, Tufts does not
contend Plaintiffs’ Motion presents any genuine issue of material fact precluding summary
judgment, and Plaintiffs do not address Tufts’ partial objections in their Reply. With
consideration of the parties’ responses to their respective statements, the court sets forth the
following facts as undisputed.

5

Plaintiffs’ Opposition to Tufts’ Motion at 3–4.

Dkt. 68, Defendant Cigna Behavioral Health’s Opposition to Plaintiffs’ Motion for Summary Judgment (Cigna’s
Opposition to Plaintiffs’ Motion) at 4–6.

6

7
See e.g., Dkt. 69, Tufts Health Plan’s Opposition to Plaintiffs’ Motion for Summary Judgment (Tufts’ Opposition
to Plaintiffs’ Motion) at 2 (stating Plaintiffs do not define “sub-acute residential and transitional living treatment”);
id. at 6 (objecting to Plaintiffs’ failure to explain “separate requirements for admission to an Acute Inpatient Mental
Health Treatment for Adults”); id. at 8 (stating Plaintiffs’ reference to an “unspecified neurodevelopmental disorder”
is unclear).

See, e.g., id. at 4–5 (disputing Plaintiffs’ Fact Nos. 15–17 on the grounds Plaintiffs provide only incomplete
citations to the record); id. at 10–11 (disputing Plaintiffs’ Fact No. 56 as an incomplete explanation of the basis for
denial).
8

9

See, e.g., 8–9 (contending statements and conclusions of Plaintiff H.A. do not constitute facts).

See, e.g., id. at 13 (objecting to Plaintiffs’ Fact No. 63 as asserting a legal conclusion); id. at 14 (objecting to
Plaintiffs’ Fact No. 65 is a “legal argument disguised as a fact”); id. at 15–16 (stating Plaintiffs’ Fact No. 66 assert
legal questions).
10

See e.g., id. at 7–8 (objecting to Plaintiffs’ implied inference from Cigna’s response to an interrogatory); id. at 9–
10 (disputing Plaintiffs’ Fact. Nos. 53–54 “to the extent Plaintiffs ask the Court to infer M.A.’s treatment at Fulshear
was medically necessary”); id. at 11 (objecting to any inference implying coverage denial was illegal); id. at 12
(objecting to any inference from Plaintiffs’ Fact No. 60 equating certain treatments as analogues); id. at 14
(objecting to any inference from Plaintiffs’ Fact No. 64 that Defendants did not comply with the law).
11

2

Plaintiff H.A. is Plaintiff M.A.’s mother. 12 H.A. is a participant in Tufts Health Plan (the
Plan), which is governed by the Employee Retiree Income Security Act (ERISA). 13 M.A., as
H.A.’s dependent, was a beneficiary of the Plan at all relevant times. 14
The Plan “has a utilization management program,” by which authorized reviewers
evaluate whether health care services provided to beneficiaries are medically necessary and
“provided in the most appropriate and efficient manner.” 15 Relevant here, Tufts authorized
Cigna, “a licensed utilization review agent,” to review claims for mental health and substance
abuse treatment for medical necessity under the Plan. 16
I.

M.A.’s History Before Entering Fulshear

Plaintiffs reside in Massachusetts. 17 From a young age, M.A. struggled socially and
experienced bullying. 18 M.A. met with a counselor briefly in fifth grade but continued to
struggle socially and academically through middle school and high school. 19 M.A. underwent a
neuropsychological evaluation in 2017 that revealed she suffered from “significant general
anxiety, and social anxiety.” 20 Later in 2017 and 2018, M.A. began engaging in self-harm and
reported suicidal ideation. 21

12

Plaintiffs’ Motion ¶ 2.

13

Id. ¶¶ 3–8.

14

Id. ¶ 7.

15

Dkt. 55-1, Administrative Record (AR) at 35.

16

Tufts’ Motion ¶ 10; Plaintiffs’ Motion ¶ 4.

17

Plaintiffs’ Motion ¶ 1.

18

Plaintiffs’ Motion ¶ 20; AR at 274.

19

Plaintiffs’ Motion ¶¶ 22; AR at 273–76.

20

Plaintiffs’ Motion ¶ 24; AR at 437–56.

21

Plaintiffs’ Motion ¶¶ 27–28; AR at 276.

3

M.A. went to the hospital for evaluation in 2018, but her behavioral problems persisted. 22
M.A. continued engaging in self-harm, and she began to consume drugs and alcohol. 23 M.A.
attempted suicide on June 21, 2020 and was hospitalized at Newton-Wellesley Hospital for
stabilization until June 24, 2020. 24 A psychiatrist at Newton-Wellesley recommended inpatient
psychiatric hospitalization, and M.A. was subsequently committed to McLean Hospital for
further treatment. 25 M.A. stayed at McLean until July 20, 2020. 26 McLean treatment providers
documented the following during M.A.’s stay:
a. June 24–25, 2020: “M.A. received provisional diagnoses that included Major
Depressive Disorder, General Anxiety Disorder and ADHD, social anxiety, and an
eating disorder" and, shortly afterwards, borderline personality disorder. 27 M.A.
reported she was sexually assaulted twice during high school. 28 M.A.’s overall acute
risk to harm herself or others was high. 29
b. June 27, 2020: M.A. exhibited progress by participating in therapeutic group sessions
and interacting with peers. 30
c. June 29, 2020: M.A. exhibited decreased irritability and an improved mood. 31
d. July 6, 2020: M.A. showed lack of progress. She did not utilize coping skills and was
difficult to redirect over the weekend. 32
e. July 7, 2020: M.A. exhibited progress by using coping skill to deal with anxiety and
presented no acute behavioral or safety concerns. 33
22

Plaintiffs’ Motion ¶¶ 28–29, 41; AR at 277–78.

23

Plaintiffs’ Motion ¶ 44.

24

Id. ¶¶ 45–46; AR at 482–89.

25

AR at 484.

26

Id. at 490–923.

27

Plaintiffs’ Motion ¶¶ 46–47.

28

AR at 515–57.

29

Id. at 519–20.

30

Id. at 540.

31

Id. at 541.

32

Id. at 544.

33

Id. at 545.

4

f. July 15, 2020: M.A.’s irritability was decreased, and her mood improved. She
showed an increasing ability to utilize coping skills. A tentative date for discharge
and transition to a residential program was set. 34
g. July 20, 2020: M.A. was diagnosed with borderline personality disorder and general
anxiety disorder at discharge. 35 M.A. readily engaged in treatment and participated in
groups and socialized with peers. M.A.’s mood improved, and her suicidal ideation
was “resol[ved].” 36 M.A. had “no acute medical issues during [her] hospital stay,”
and her overall “risk of harm to self/others or inadequate self care [was] moderate.” 37
Her prognosis was fair and could be improved if M.A. “engage[d] in intensive
treatment.” 38
II.

M.A.’s Treatment at Fulshear

On July 22, 2020, M.A. entered residential treatment at Fulshear. 39 M.A. received
treatment at Fulshear until May 22, 2021 for borderline personality, depressive, and anxiety
disorders. 40 M.A.’s medical records at Fulshear reveal her mental health disorders manifested on
at least the following occasions:
a. July 24, 2020: M.A. demonstrated high anxiety, poor relational skills, and a
depressed mood. 41
b. July 26, 2020: M.A. was anxious and did not receive feedback well. 42
c. July 27, 2020: M.A. described her history “as if she [was] a victim of the
behavior of others . . . [and] glosse[d] over whatever she has done.” 43
d. July 31, 2020: M.A. demonstrated high anxiety and had tangential speech. 44

34

AR at 550.

35

Id. at 500.

36

Id. at 501.

37

Id.

38

Id.

39

Plaintiffs’ Motion ¶¶ 10, 48.

40

AR at 1604–05.

41

Id. at 1579.

42

Id. at 1572.

43

Id. at 1569.

44

Id. at 1544.

5

e. August 2, 2020: M.A. reported she sometimes had disturbing thoughts she
couldn’t get rid of, was frequently nervous and afraid, and sometimes had
thoughts of “ending [her] life.” 45
f. August 9, 2020: M.A. was withdrawn and became increasingly anxious
throughout the day. 46
g. August 10, 2020: Police responded to Fulshear and escorted M.A. to the
hospital after M.A. got into an argument with another Fulshear resident. 47
The police reported M.A. punched the Fulshear office door and broke it. 48 A
Fulshear treatment provider described M.A. as dramatic and manipulative. 49
M.A. explained she broke into the office to retrieve her cellphone “so she
could call her father because she wanted to go back home to
Massachusetts.” 50 M.A. called her father and yelled to him “that bad men
were [there] to hurt her.” M.A. would not stop talking and listen to the police,
yelled at an officer not to touch her, and said she believed the officer was
“going to drive her out into the woods.” 51
h. September 3, 2020: M.A. was mildly anxious and felt depressed. 52
i. September 9, 2020: M.A. was anxious and stated she had a recent panic attack
and wanted to leave treatment. 53
j. October 18, 2020: M.A. stated to a mentor that “she wish[ed] she would have
just killed herself so she wouldn’t have to be in treatment.” 54 M.A. also stated
she thought she was ready to go home. 55
k. November 11, 2020: M.A. cried and was upset about “relapsing into old
behavior.” 56
l. November 16, 2020: M.A. stated she was crying every day and having trouble
with roommates. M.A. “display[ed] a lot of victimizing.” 57

45

Id. at 1521–25.

46

AR at 1469.

47

Plaintiffs’ Motion ¶ 68; AR at 3077–78.

48

AR at 3077.

49

Id. at 3077–78.

50

Id.

51

Id.

52

Id. at 1349.

53

AR at 1325.

54

Id. at 1136.

55

Id.

56

Id. at 1072.

57

Id. at 1053.

6

m. November 23, 2020: M.A. stated she was “deep in her eating disorder” and
expressed frustration about roommates. 58
n. December 5, 2020: M.A. started employment but quit after three days
“because it was making her uncomfortable.” 59
o. December 7, 2020: M.A. was dysregulated, angry, and irritable. 60
p. December 17, 2020: M.A. “struggle[ed] to attend check in, and
programming,” “[struggled] to communicate with peers … [and did] not
attend[] A.A.” 61
q. December 28, 2020: M.A. exhibited symptoms and behaviors “demonstrating
[she] continued to need [residential treatment] level of care.” 62
r. January 4, 2021: M.A. reported sleep trouble and stated she was “manic.” 63
s. January 6, 2021: M.A. stated she did not want to be at Fulshear, did not want
to be sober, and often pretended because, if she did not pretend, then her
providers would take things away from her. 64
t. January 8, 2021: M.A. reported anxiety and poor decision making. 65
M.A.’s providers also noted progress on the following occasions:
a. July 26, 2020: M.A. interacted with peers and appeared “to be enjoying
herself” and reported “she was fine” though she missed her friends. 66
b. July 30, 2020: M.A. reported she “was feeling good.” 67
c. August 2, 2020: M.A. reported she was taking her medications regularly as
prescribed; she thought it “ma[de] sense” for her to be in the Fulshear
program, reported she thought she had made therapeutic progress.” 68

58

Id. at 1042.

59

AR at 1012, 1020.

60

Id. at 1007.

61

Id. at 975.

62

Id. at 971.

63

Id. at 944.

64

Id. at 937.

65

AR at 933.

66

Id. at 1573.

67

Id. at 1550.

68

Id. at 1531–33.

7

d. August 4, 2020: M.A. was “doing well in her community” and did not show
any signs of depression. 69
e. August 18, 2020: M.A. was “mostly in a good mood.” 70
f. August 28, 2020: M.A. was in a “happy mood . . . [and] was open and
interactive.” 71
g. September 15–16, 2020: M.A. did not seem to be in a depressed mood, made
no mention of her anxiety, and was “actively engaged in her recovery
programming.” 72
h. October 21, 2020: M.A. was “much improved,” “more relaxed, less moody
and more approachable.” 73
i. November 1, 2020: M.A. applied for a job. 74
j. November 22, 2020: M.A. was very talkative and spent time laughing. 75
k. December 14, 2020: M.A. was “noticeably happier” and wanted to start
reducing her medication. 76
l. December 20, 2020: M.A. was “actively engaged in her recovery
programming,” attending A.A. meetings, and counseling sessions. 77
m. January 4, 2021: M.A. was much more stable and in control of her behavior. 78
n. January 7, 2021: M.A. was in a “great mood.” 79
Ultimately, Cigna approved only fourteen days of residential treatment for M.A. at
Fulshear: from July 22, 2020 through August 4, 2020. 80

69

Id. at 1498.

70

Id. at 1425.

71

AR at 1377.

72

Id. at 1297, 1301.

73

Id. at 1108.

74

Id. at 1104.

75

Id. at 1049.

76

Id. at 992.

77

AR at 975.

78

Id. at 944.

79

Id. at 934.

80

Cigna’s Opposition to Plaintiffs’ Motion ¶ 16.

8

III.

The Plan Coverage Terms

There is no dispute that M.A. was a beneficiary of the Plan for the duration of her stay at
Fulshear and the Plan is subject to ERISA. The Plan provides behavioral health and substance
use disorder services, which Tufts or its delegate must deem “Medically Necessary.” 81 The Plan
defines “Medically Necessary” as:
A service or supply that is consistent with generally accepted principles of professional
medical practice as determined by whether that service or supply:
• is the most appropriate available supply or level of service for the MEMBER in
question considering potential benefits and harms to that individual;
• is known to be effective, based on scientific evidence, professional standards and
expert opinion, in improving health outcomes; or
• for services and interventions not in widespread use, as based on scientific
evidence. 82
The Plan uses “Medical Necessity Guidelines” to determine Medical Necessity for covered
services. The Medical Necessity Guidelines are:
•
•
•
•
•

based on current literature review;
developed with input from practicing PROVIDERS in the Service Area;
developed in accordance with the standards adopted by government agencies and
national accreditation organizations;
updated annually or more often as new treatments, applications and technologies are
adopted as generally accepted professional medical practice; and
scientific evidence-based, if practicable. 83

The Plan states Tufts “has entered into an agreement with Tufts Benefit Administrators
(‘TBA’) for TBA to administer the health benefits and make available a network of
PROVIDERS,” 84 and “[a]n AUTHORIZED REVIEWER reviews and approves certain services
and supplies to MEMBERS. He or she is TUFTS HEALTH PLAN’s Chief Medical Officer (or

81

AR at 35.

82

Id. at 123.

83

Id. at 35.

84

Id. at 6.

9

equivalent) or someone that person names (which may include a delegate).” 85 The Plan further
explains the Authorized Reviewer’s role in the “utilization management program”:
•

UTILIZATION MANAGEMENT: TUFTS HEALTH PLAN has a utilization
management program. This is employed to evaluate whether health care services
provided to MEMBERS are (1) MEDICALLY NECESSARY and (2) provided in
the most appropriate and efficient manner….
TUFTS HEALTH PLAN considers these guidelines as well as the MEMBER’s
individual health care needs to evaluate on a case-by-case basis if a service or
supply is MEDICALLY NECESSARY.
The utilization management program sometimes includes prospective, concurrent,
and retrospective review of health care services for MEDICAL NECESSITY
(collectively, this comprises AUTHORIZED REVIEW) and is performed by an
AUTHORIZED REVIEWER….
Prospective and concurrent reviews let MEMBERS know if proposed health care
services are MEDICAL NECESSARY and covered under their plan. This allows
MEMBERS to make informed decisions about their care….
TUFTS HEALTH PLAN or its delegate makes coverage determinations. You
and your PROVIDER make all treatment decisions. 86

The Plan also states inpatient behavioral health and substance use residential treatment
“may require approval by an AUTHORIZED REVIEWER.” 87 The parties do not dispute Cigna
“provides third-party claim administration services to the Plan.” 88 Cigna, which employs a
behavioral health Chief Medical Officer, 89 determines benefits for mental health treatment based
on Cigna’s own standards and guidelines. 90

85

Id. at 117.

86

AR at 35–37.

87

Id.

Cigna’s Motion at 1; Plaintiffs’ Motion ¶ 4 (“Cigna provides claims evaluation and processing services for
Tufts.”); id. ¶ 11 (identifying Cigna as Tufts’ agent); Tufts’ Motion ¶ 10 (identifying Cigna as “a licensed utilization
review agent” for Tufts).

88

89

AR at 145–47.

90
Cigna’s Motion ¶ 13; Plaintiffs’ Opposition to Cigna’s Motion at 3 (presenting no opposition to Cigna’s statement
of fact ¶ 13).

10

The Plan outlines four levels of mental health care to “deliver[] the most effective and
most appropriate care to every patient.” 91 These include acute inpatient mental health treatment,
residential mental health treatment, partial hospital mental health treatment, and intensive
outpatient mental health treatment. 92 Acute inpatient and residential treatment both provide 24hour supervision and monitoring while partial hospital and outpatient treatment are utilized when
an individual does not require a 24-hour-monitoring environment. 93
The Plan describes the services and establishes the medical necessity criteria for each
level of care. Acute inpatient care occurs in a contained environment when an individual
requires, among other things, “around-the-clock intensive, psychiatric/medical care and onsite 24
hour nursing care including continuous observation, monitoring and intervention,”
administration of any prescribed medications, “[a]cute management to prevent harm or
significant deterioration of functions and to ensure the safety of the individual and/or others.” 94
An individual must meet each of the following medical necessity criteria to be admitted for acute
inpatient mental health treatment:
All of the following must be met:
1. All Elements of Medical Necessity must be met.
2. The individual has been diagnosed with a severe and acute mental health disorder,
per the most recent version of the Diagnostic and Statistical Manual of Mental
Disorders that is significantly impairing functioning.
3. One or more of the following criteria must be met:
A. It is likely that the individual is currently at imminent risk of causing serious
bodily harm to him/herself or someone else due to a psychiatric illness, (not
due to intentional criminal behavior), as evidenced by:
i) A recent and serious suicide attempt or threat of violence toward
others involving deadly intent or plan, OR

91

AR at 146–47.

92

Id. at 144, 149–65.

93

Id.

94

Id. at 149.

11

ii) A current expression of suicidal intent or homicidal intent with a plan
for bodily harm that has a high likelihood of becoming deadly or
causing serious injury, OR
iii) Recent, serious and intentional self-injury along with an inability to
develop a reasonable plan for safety so that 24 hour observation, safety
measures, and treatment are needed in a secure setting, OR
iv) Recent violent, impulsive, and unpredictable behavior that is likely to
result in harm to the individual or someone else without 24 hour
observation and treatment, including the possible use of seclusion
and/or restraints in a secured setting.
B. It is very likely that serious harm will come to the individual due to
psychiatric illness, and that harm cannot be prevented at a lower level of care
as evidenced by:
i) The individual is unable to care for self (nutrition, shelter, and other
essential activities of daily living) due to his/her psychiatric condition
so that imminent life-threatening deterioration is expected, OR
ii) The individual has irrational or bizarre thinking, and/or severe
slowness or agitation in movements along with interference with
essential activities of daily living of such severity as to require 24 hour
psychiatric/medical, nursing and social service interventions.
C. The individual has a secondary condition such that treatment cannot be
provided at a less restrictive level of care as evidenced by:
i) A life threatening complication of an eating disorder; OR
ii) An active general medical condition … which requires that psychiatric
interventions be monitored in a 24 hour psychiatric/medical setting,
OR
iii) The individual requires Electroconvulsive Therapy (ECT) and the
initial trial requires a 24 hour psychiatric/medical setting.
D. Appropriate less restrictive levels of care are unavailable for safe and effective
treatment.” 95
The Plan describes residential care as “transitional” treatment “focused on stabilization
and improvement of functioning and reintegration with family or significant others” in a facility
providing 24-hour supervision and monitoring. 96 The medical necessity criteria for residential
treatment state:
All of the following must be met:
1. All Elements of Medical Necessity must be met.
2. The individual is expressing willingness to actively participate in this level of
care.
95

Id. at 151–52.

96

Id. at 153.

12

3. The individual has been diagnosed with a moderate-to-severe mental health
disorder … and [exhibits] evidence of significant distress/impairment.
4. This impairment in function is seen across multiple settings such as work, home,
and in the community, and clearly demonstrates the need for 24 hour psychiatric
and nursing monitoring and intervention.
5. As a result of the interventions provided at this level of care, the symptoms and/or
behaviors that led to the admission can be reasonably expected to show
improvement such that the individual will be capable of returning to the
community and to less restrictive levels of care.
6. The individual is able to function with some independence, [and] participate in
structured activities in a group environment.
7. There is evidence that a less restrictive level of care is not likely to provide safe
and effective treatment. 97
In contrast to acute inpatient and residential care, both partial hospital and outpatient
treatment are for individuals who do not require 24-hour supervision. 98 Partial hospital treatment
is for those with a mental health disorder experiencing moderate-to-severe and acute psychiatric
symptoms that “compromis[e] daily functioning” 99 and is “similar in nature and intensity to that
provided in an inpatient hospital setting.” 100 However, those in partial hospital treatment are
able to maintain safety in the community if they have an ongoing risk of harm to self or others
and the individuals are not considered a resident of the structured program. 101 Outpatient
treatment is coordinated, time-limited care “for individuals who can maintain personal safety
with support systems in the community and who can maintain some ability to fulfill family,
student, or work activities,” but are “experiencing psychosocial stressors and/or complex family
dysfunction, such that a multidisciplinary treatment team is needed to stabilize the individual.” 102

97

AR at 156.

98

Id. at 157, 186–87.

99

Id. at 157–58.

100

Id. at 157.

101

Id.

102

Id. at 162.

13

The only level of care utilized when an individual poses an imminent or very likely risk
or threat of harm is acute inpatient treatment. 103
Acute inpatient and residential treatment have the same criteria to qualify for a continued
stay. For both:
All of the following must be met:
1. The individual continues to meet all Elements of Medical Necessity.
2. One of more of the following criteria must be met:
a. The treatment provided is leading to measurable clinical improvements in the
moderate-to-severe symptoms and/or behaviors that led to this admission and
a progression toward discharge from the present level of care, but the
individual is not sufficiently stabilized so that he/she can be safely and
effectively treated at a less restrictive level of care.
b. If the treatment plan implemented is not leading to measurable clinical
improvements in the moderate-to-severe symptoms and/or behaviors that led
to this admission and a progression toward discharge from the present level of
care, there must be ongoing reassessment and modifications to the treatment
plan that address specific barriers to achieving improvement when clinically
indicated.
c. The individual has developed new symptoms and/or behaviors that require
this intensity of service for safe and effective treatment.
3. All of the following must be met:
a. The individual and family are involved to the best of their ability in the
treatment and discharge planning process.
b. Continued stay is not primarily for the purpose of providing a safe and
structured environment.
c. Continued stay is not primarily due to a lack of external supports. 104
IV.

Plan Denial and Appeal Terms

The Plan provides that a member may appeal a denial of coverage based on medical
necessity through an appeals process. 105 First, if a member disagrees with a coverage
determination, they must file a written or oral appeal within 180 days and should include “a
detailed description of [their] concern (including relevant dates, any applicable medical

103

AR. at 149–65.

104

Id. at 152, 156.

105

Id. at 102–06.

14

information, and PROVIDER names)” and any documentation supporting the claim. 106 Then
Tufts “or its delegate” will review the appeal and make a decision. 107 If the appeal requires a
review of medical records, the member must sign and return a medical information release
authorization form within 30 days. 108 After the medical records are provided, “an actively
practicing health care professional in the same or similar specialty as typically treats the medical
conditions . . . and who did not participate in any of the prior decisions on the case” will review
the records to make a medical necessity determination. 109 Tufts will review this first (“Level
One”) appeal and issue a decision letter “based on Medical Necessity,” that includes
“identification of the specific information considered for [the] appeal and an explanation of the
basis for the decision.” 110 The decision letter will also include Tufts’:
understanding of [the] presenting symptoms or condition; diagnosis and treatment
interventions, and the specific reasons such medical evidence fails to meet the relevant
medical review criteria; applicable clinical practice guidelines and review criteria;
notification of the steps for requesting external review . . . and the titles and credentials of
the individuals who reviewed the case. 111
If a member is not satisfied with the Level One appeal decision, a member may submit a
written request for reconsideration “where relevant medical information (1) was received too late
to review within the 30 calendar day time limit; or (2) was not received but is expected to
become available within a reasonable time period following the written resolution.” 112 The
Massachusetts Office of Patient Protection, unaffiliated with Tufts, then administers “an

106

Id. at 104.

107

Id.

108

Id.

109

AR at 104.

110

Id. at 105.

111

Id.

112

Id. at 106.

15

independent external review for final coverage determinations based on medical necessity.” 113
The Plan provides the member “will have access to any medical information and records relating
to [the] appeal” in the possession or control of Tufts, and the review panel will issue a final,
binding coverage determination. 114
The Plan also requires a member to exhaust the appeals process before a member may
file a lawsuit against the Plan. Specifically, the Plan provides:
Limitation on Actions
You cannot file a lawsuit against [the Plan] for failing to pay or arrange for COVERED
SERVICES unless you have completed the [the Plan’s] MEMBER Satisfaction Process
and file the lawsuit within two years from the time the cause of action arose. For
example, if you want to file a lawsuit because you were denied coverage under this
GROUP or INDIVIDUAL CONTRACT, you must first complete our MEMBER
Satisfaction Process, and then file your lawsuit within two years after the day you were
first sent a notice of the denial. 115
V.

The Coverage Denials
A.

Cigna’s Initial Denial

Cigna covered the first fourteen days of M.A.’s treatment at Fulshear—July 22, 2020
through August 4, 2020, 116 and Plaintiffs submitted a request to extend coverage for continued
care at Fulshear. 117 On August 5, 2020, Cigna notified Plaintiffs of its decision to deny benefits
for August 5, 2020 forward. 118 Dr. Gelman, a Cigna Medical Director board-certified in
psychiatry, conducted the medical necessity review for M.A.’s continued treatment and

113

Id.

114

Id.

115

AR at 108.

116

Cigna’s Motion ¶ 20; Tufts’ Motion ¶ 9; Plaintiffs’ Motion ¶¶ 48–56.

117

AR at 260–61, 265.

118

Id. at 291–94.

16

concluded M.A. no longer met the medical necessity criteria for residential treatment care. 119
Cigna’s initial denial letter provided the following reasons for denying benefits:
Based upon the available clinical information, your symptoms do not meet the Cigna
medical necessity criteria for Residential Mental Health Treatment for Adults for
continued stay from 08/05/2020 forward as there is no current risk of harm to yourself or
others. You do not have a severe and pervasive psychiatric disorder which results in
significant impairment in multiple settings. You do not demonstrate a need for 24
hour/day monitoring and active treatment. Your family is involved in treatment. From
the available clinical evidence, you could receive psychiatric treatment in a less
restrictive setting. 120
The August 5, 2020 letter referred Plaintiffs to Cigna’s medical necessity criteria for mental
health disorders for more information and provided information regarding the appeal process. 121
B.

Plaintiffs’ Appeals of Cigna’s Initial Denial

Plaintiffs submitted two Level One appeal letters on January 27, 2021—one for Cigna’s
denial of benefits from August 5, 2020 through October 19, 2020, and one for Cigna’s denial of
benefits from October 20, 2020 forward. 122 Plaintiffs included multiple documents with their
appeal letters including, among other things, authorization to disclose M.A.’s medical records,
M.A.’s 2017 neuropsychological evaluation report, letters from Dr. Steven Benyas and Dr. Lynn
Porter, a statement from M.A.’s school, and M.A.’s medical records from McClean and
Fulshear. 123 In their appeal letters, Plaintiffs contended the initial denial was based on incorrect
criteria. 124 Specifically, Plaintiffs complained the Cigna reviewer used “acute level” medical

119

Id.; Cigna’s Motion ¶ 21–22; Plaintiffs’ Opposition to Cigna’s Motion at 3 (Plaintiffs do not dispute these facts).

120

AR at 292.

121

Id. at 292–94.

122

Cigna’s Motion ¶¶ 24–25; AR at 265–84, 1713–32.

123

AR at 1708–09.

124

Plaintiffs’ Motion ¶ 61; AR at 268–73, 1716–20.

17

necessity criteria “to restrict the availability of the non-acute mental health care M.A.
received.” 125 The letter Plaintiffs submitted from Dr. Benyas stated the following:
I have treated [M.A.] from 04/14/2017 through 03/03/2020. [M.A.’s] treatment at
Fulshear Treatment to Transition has been, and continues to be, medically necessary for
the treatment of her psychiatric illnesses. This treatment is beneficial, and [M.A.’s]
status is improving. Without such treatment, [M.A.] would be at far higher risk for
worsening symptoms and suicide. 126
Dr. Porter’s letter also supported M.A.’s treatment at Fulshear. Specifically, Dr. Porter stated:
[M.A.] is a patient of mine who is attending a special program in Texas to treat her
Borderline Personality disorder and is improving under their techniques. I am writing a
letter for her current insurance company to cover these fees. [M.A.] has been incorrectly
treated/diagnosed when living in Massachusetts. She participated in many therapy
modalities and hospitalization with often the same results. Ultimately, leading her to
participate in high risk behaviors, culminating in her suicide attempt prior to finding this
Texas program. 127
Dr. Porter’s letter did not include any specific information regarding when she provided what
treatment to M.A. or state whether she had evaluated M.A. since M.A. had been in residential
treatment at Fulshear. 128
C.

Defendants’ Processing of Plaintiffs’ Appeals

After receiving Plaintiffs’ appeals, Tufts notified Fulshear the appeals were rejected
because Fulshear failed to include a required claim review form. 129 When Plaintiffs were
notified of Tufts’ rejection of the appeals, Plaintiffs’ submitted a complaint to the Massachusetts
Division of Insurance stating the appeals had been incorrectly categorized as provider appeals
rather than member appeals. 130 On May 7, 2021, Tufts confirmed it had miscategorized the

125

Plaintiffs’ Motion ¶ 61.

126

AR at 1896.

127

Plaintiffs’ Motion ¶ 67; AR at 3081.

128

AR at 3081.

129

Plaintiffs’ Motion ¶¶ 72–73.

130

Id. ¶ 72.

18

appeals as provider appeals, and stated it would process Plaintiffs’ appeals as member claims. 131
Plaintiffs resubmitted the appeals to Tufts. 132
D.

Cigna’s Appeals Denial

Two Cigna Medical Directors, both board-certified in psychiatry, reviewed Plaintiffs’
Level One appeals. Dr. Mohsin Qayyum reviewed Plaintiffs’ appeal for benefits from August 5,
2020 though October 19, 2020, and Dr. Karl Sieg reviewed Plaintiffs’ appeal for benefits for
October 2020 forward. 133 Cigna upheld its denial determination for both appeals. 134
In a letter dated July 29, 2021, Cigna denied benefits from August 5, 2020 to October 20,
2020 and provided the following explanation:
Based upon the available clinical information received initially and with this appeal,
your symptoms did not meet Medical Necessity Criteria for continued stay at Acute
Inpatient Mental Health Treatment for Adults from 08/05/2020 - 10/20/2020 as you had
not recently demonstrated actions or made serious threats of harm to yourself or others
as a result of a mental health disorder that were of such severity that you required the
intensity of treatment intervention and 24 hour monitoring of a Residential Mental
Health Treatment program for your safe and effective treatment. You had not developed
new symptoms and/or behaviors that required this intensity of service for safe and
effective treatment. Less restrictive levels of care were available for safe and effective
treatment. 135
Cigna’s denial letter again referred Plaintiffs to Cigna’s Medical Necessity Criteria and included
information regarding the appeals process. 136 A form for requesting an independent external
review and additional information regarding the external review process was attached to Cigna’s
denial letter. 137
131

Id. ¶¶ 73–74.

132

Id. ¶ 75.

133

Cigna’s Motion ¶ 27; AR at 1659, 1662–64, 1695–98, 1702–06.

134

Cigna’s Motion ¶¶ 28–29.

135

AR at 1663–64.

136

Id. at 1663–80.

137

Id. at 1670–80.

19

In a letter dated August 5, 2021, titled “Initial Medical Necessity Denial,” Cigna upheld
its denial for benefits from October 20, 2020 forward. 138 The letter informed Plaintiffs their
appeal had been reviewed by board-certified psychiatrist Dr. Sieg and provided the following
justification for denial:
Based upon my review of the available clinical information and Cigna’s Behavioral
Health Medical Necessity Criteria, medical necessity [sic] your symptoms did not meet
the medical necessity criteria of Cigna Behavioral Health’s Level of Care Guidelines for
Residential Mental Health Treatment for Adults for continued stay from 10/20/2020 –
01/06/2022. The treatment provided had led to sufficient stabilization of your symptoms
so that you could be safely and effectively treated at a less restrictive level of care. You
were not reported to be voicing thoughts of harm to self or others. You were not reported
to be exhibiting aggression or disordered thinking. You were described as in behavioral
control. You were able to care for your basic needs. You were compliant with
medications. Your depression had improved. You were participating in groups. You
were sleeping and eating adequately. You had not developed new symptoms and/or
behaviors that required this intensity of service for safe and effective treatment.
Your family is involved in treatment. Less restrictive levels of care were available for
safe and effective treatment[.] In addition, Cigna is denying benefit authorization of the
requested services because the level of care rendered by this program was inconsistent
with the level of care requested. It appeared you were being treated at a lower level of
care such as a transitional living program. 139
The denial letter included information regarding how to appeal Cigna’s denial determination and
request an independent external review. 140
PROCEDURAL HISTORY
After receiving Cigna’s denial letters for their Level One appeals, Plaintiffs initiated this
lawsuit on July 19, 2022. 141 Plaintiffs seek to recover Plan benefits under 29 U.S.C.
138

Id. at 1695–98.

139

Id. at 1695–96.

140

Id. at 1696–98.

See Complaint. The Administrative Record does not contain any information regarding a request for an external
review or any external benefit determinations. Neither party raises or disputes whether the appeals, one each for
different dates of services, were Level One appeals. Both parties appear to treat Cigna’s initial notice of denial of
benefits from August 5, 2020 forward as Cigna’s first review and Cigna’s review of the January 27, 2021 appeals as
Cigna’s final review. See Cigna’s Motion 10–11, 15 (stating Plaintiffs submitted their “Level 1” appeals and Cigna
upheld the upheld the denial of benefits for both Level 1 appeals and referring to the appeal denial as the final

141

20

§ 1132(a)(1)(B), arguing Defendants breached their fiduciary obligations under ERISA by failing
to provide coverage and failing to provide a “full and fair review” of their claim. 142 Moreover,
Plaintiffs assert Defendants violated the Parity Act because Defendants evaluated M.A.’s mental
health claims using incorrect medical necessity criteria which resulted in a disparity between
coverage for mental health benefits and analogous levels of medical or surgical benefits. 143
Specifically, Plaintiffs allege Defendants wrongly imposed acute care medical necessity
requirements for subacute care. 144
Now before the court are the parties’ cross-motions for summary judgment. 145 The
Motions are fully ripe and ready for review. 146
LEGAL STANDARD
ERISA authorizes plan participants and beneficiaries “(A) to enjoin any act or practice
which violates any provision of [ERISA] or the terms of the plan, or (B) to obtain other
appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of

adverse benefit determinations); Tufts’ Motion 11–15, 18–19 (stating Cigna’s denial conclusions were reached by
three separate internal reviewers—Dr. Gelman, Dr. Qayyum, and Dr. Sieg); Plaintiffs’ Motion ¶¶ 75–81 (stating
Plaintiffs resubmitted their initial appeal, the appeal was denied, and Plaintiffs “exhausted their pre-litigation
obligations”). The Tenth Circuit has held that “exhaustion of administrative remedies is an implicit prerequisite to
seeking judicial relief under § 1132(a)(1)(B).” Gaylor v. John Hancock Mut. Life Ins. Co., 112 F.3d 460, 467 (10th
Cir. 1997). However, exhaustion is not a statutory requirement and because Defendants do not argue Plaintiffs’
claims should be barred for failure to exhaust their remedies, the court does not address the issue further. See id.;
see also McGraw v. Prudential Ins. Co. of Am., 137 F.3d 1253, 1263 (10th Cir. 1998) (stating because “ERISA itself
does not specifically require the exhaustion of remedies available under pension plans, courts have applied this
requirement as a matter of judicial discretion”) (internal quotation marks and citation omitted).
142

Plaintiffs’ Motion at 18–22.

143

Id. at 30–37.

144

Id.

145

Dkt. 57, Cigna’s Motion; Dkt. 58, Tufts’ Motion; Dkt. 59, Plaintiffs’ Motion.

Dkt. 57, Cigna’s Motion; Dkt. 70, Plaintiffs’ Opposition to Cigna’s Motion; Dkt. 78, Cigna’s Reply; Dkt. 58,
Tufts’ Motion; Dkt. 71, Plaintiffs’ Opposition to Tufts’ Motion; Dkt. 80, Tufts’ Reply; Dkt. 59, Plaintiffs’ Motion;
Dkt. 68, Cigna’s Opposition to Plaintiffs’ Motion; Dkt. 69, Tufts’ Opposition to Plaintiffs’ Motion; Dkt. 79,
Plaintiffs’ Combined Reply.
146

21

[ERISA] or the terms of the plan[.]” 147 Summary judgment is appropriate if the moving party
establishes “there is no genuine issue as to any material fact” and it is “entitled to judgment as a
matter of law.” 148 When all parties move for summary judgment in an ERISA case, “summary
judgment is merely a vehicle for deciding the case.” 149 “[T]he 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.” 150 In contrast, because the Parity Act claim is a
legal question of statutory interpretation, “the court will ‘view the evidence and make all
reasonable inferences in the light most favorable to the nonmoving party.’” 151
ANALYSIS
The parties’ cross-Motions address Plaintiffs’ two causes of action: 1) a claim for
wrongful denial of Plan benefits under ERISA for M.A.’s residential treatment at Fulshear, and
2) a claim for violation of the Parity Act. Specifically, Plaintiffs contend Defendants did not
provide a full and fair review by failing to engage with the physician letters Plaintiffs submitted
with their appeals, and they claim Defendants’ denial violated the Parity Act by applying the
medical necessity criteria for acute inpatient care for M.A.’s subacute, intermediate residential
treatment.
The court concludes Defendants adequately considered the letters from M.A.’s treating
physicians, but Defendants erroneously analyzed M.A.’s eligibility using medical necessity

147

29 U.S.C. § 1132(a)(3).

148

Fed. R. Civ. P. 56(a).

LaAsmar v. Phelps Dodge Corp. Life, Accidental Death & Dismemberment & Dependent Life Ins. Plan, 605 F.3d
789, 796 (10th Cir. 2010) (quoting Bard v. Boston Shipping Ass’n, 471 F.3d 229, 235 (1st Cir. 2006)).
149

150

Id. (internal quotation marks and citation omitted).

Theo M. v. Beacon Health Options, 631 F.Supp.3d 1087, 1100 (D. Utah 2022) (quoting N. Natural Gas Co. v.
Nash Oil & Gas, Inc., 526 F.3d 626, 629 (10th Cir. 2008)).
151

22

criteria for acute inpatient care. Because an erroneous basis for denial is unreasonably arbitrary
and capricious, the court grants Plaintiffs’ Motion on this basis and does not reach the Parity Act
issue.
I. Standard of Review
The court must first decide what standard of review applies. 152 “[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.” 153 “If the plan vests such discretion in the administrator, a
reviewing court will apply ‘a deferential standard of review, asking only whether the denial of
benefits was arbitrary and capricious.’” 154 Accordingly, the validity of a claim to benefits under
an ERISA plan often “turn[s] on the interpretation of terms in the plan at issue.” 155 Here, the
parties dispute whether the Plan grants discretionary authority to Cigna, and it is Defendants’
burden “to establish that this court should review [Cigna’s] benefits decision . . . under an
arbitrary-and-capricious standard.” 156
Defendants argue the Plan’s utilization management program confers authority to Cigna
to make coverage determinations at its sole discretion. 157 Conversely, Plaintiffs contend the Plan
lacks any language explicitly granting authority to Cigna. Specifically, Plaintiffs argue the Plan
“never mentions the phrase ‘discretionary authority,’” and “has no . . . language to put a plan

152

Cigna’s Motion at 12–15; Tufts’ Motion at 8–10; Plaintiffs’ Motion at 16–18.

153

Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989).

154
Raymond M. v. Beacon Health Options, Inc., 463 F. Supp. 3d 1250, 1266 (D. Utah May 29, 2020) (quoting
Weber v. GE Grp. Life Assurance Co., 541 F.3d 1002, 1010 (10th Cir. 2008)).
155

Firestone, 489 U.S. at 115.

156

Eugene S. v. Horizon Blue Cross Blue Shield of N.J., 663 F.3d 1124, 1130 (10th Cir. 2011) (citation omitted).

157

Cigna’s Motion at 12; Tufts’ Motion at 8–9.

23

participant or beneficiary on notice that Cigna enjoyed discretionary authority to construe
eligibility for benefits.” 158
In Eugene S. v. Horizon Blue Cross Blue Shield of New Jersey, the Tenth Circuit clarified
the kind of policy language sufficient to grant discretion to an administrator. 159 In Eugene S., an
ERISA-governed insurer denied coverage for residential treatment costs. 160 The insurer’s thirdparty plan administrator determined the beneficiary “qualified for intensive outpatient treatment,
but not for residential treatment.” 161 The plaintiff sought relief in district court and the district
court, concluding an arbitrary and capricious standard of review applied, upheld the insurer’s
denial. 162 On appeal, the Tenth Circuit Court of Appeals explained, “[w]e have been
comparatively liberal in construing language to trigger the more deferential standard of review
under ERISA . . . [and] we have found arbitrary and capricious review appropriate where plan
language defines ‘needed’ services as those determined by the plan administrator to meet certain
tests . . . .” 163 The Tenth Circuit then looked to the plan language and concluded it sufficiently
granted both the insurer and the third-party administrator discretion sufficient to warrant
arbitrary and capricious review. 164 Specifically, the Tenth Circuit concluded the plan had
discretion because it “limit[ed] ‘Medically Necessary and Appropriate’ services or supplies to
those ‘determined by [the plan’s] medical director or designee(s)’ to be such” 165; the plan limited

158

Plaintiffs’ Opposition to Cigna’s Motion at 5.

159

Eugene S. v. Horizon Blue Cross Blue Shield of N.J., 663 F.3d 1124, 1130 (10th Cir. 2011).

160

Id. at 1128.

161

Id. at 1128.

162

Id. at 1128–29, 1135.

163

Id. at 1132 (citation omitted).

164

Id. at 1132–33.

165

Eugene S. v. Horizon Blue Cross Blue Shield of N.J., 663 F.3d at 1132.

24

payment to services that, “in [the plan’s] judgment, are provided at the proper level of care” 166;
the plan reserved the “right to require that care be rendered in an alternate setting as a condition
of providing payment for benefits if [the plan] determine[d] that a more cost-effective manner
exist[ed]” 167; and the plan stated Horizon “determine[d] what [was] medically necessary and
appropriate under its Utilization Review and Management program.” 168 The Tenth Circuit also
concluded the third-party claims administrator had discretion because the plan defined a “‘Care
Manager’ as a person or entity designated by the plan to manage, assess, coordinate, direct and
authorize the appropriate level of health care treatment,” and provided different levels of
coverage depending on whether the care manager authorized treatment for mental illnesses. 169
Like Eugene S., the Plan here contains language sufficient to grant Cigna discretion in
reviewing claims. The Plan includes a utilization management program by which “an authorized
reviewer” determines whether “health care services provided to members are (1) medically
necessary and (2) provided in the most appropriate and efficient manner.” 170 The Plan defines
“Authorized Reviewer” as one who “reviews and approves certain services and supplies to
members.” 171 He or she is Tufts Health Plan’s “Chief Medical Officer (or equivalent) or
someone that person names (which may include a delegate).” 172 Lastly, the Plan also designates
inpatient treatment for behavioral health and substance use disorders as a covered service that
“may require approval by an authorized reviewer,” and states the member is responsible for

166

Id. at 1132 (internal quotation marks omitted).

167

Id. (internal quotation marks omitted).

168

Id. (internal quotation marks omitted).

169

Id. at 1133 (internal alteration and quotation marks omitted).

170

AR at 35–36.

171

Id. at 117.

172

Id.

25

ensuring the provider obtains approval from an authorized reviewer for out-of-network
benefits. 173 The court concludes this language is sufficient to grant Cigna discretion to make
coverage determinations and triggers arbitrary and capricious review. 174
II.

Cigna’s Denials were Arbitrary and Capricious

To determine whether Cigna’s decision was arbitrary and capricious, the court must
evaluate whether Cigna’s decision was “consistent with the purposes of the plan.” 175 The court
upholds the administrator’s determination “so long as it was made on a reasoned basis and
supported by substantial evidence.” 176 The court is “limited to considering only the rationale
given by [Cigna] for [the] denial” 177 and reviews the record as a whole to determine whether
substantial evidence exists to support the administrator’s decision. 178 The Tenth Circuit has
identified the following administrative actions as arbitrary and capricious: unreasonable
interpretations of an ERISA plan, 179 failure to “address an independent ground for paying

173

Id. at 16, 49.

See Tracy O. v. Anthem Blue Cross Life & Health Ins., 807 F. App’x 845, 853 (10th Cir. 2020) (stating language
that adequately grants discretionary authority “triggers” the more deferential arbitrary and capricious standard of
review).
174

Flinders v. Workforce Stabilization Plan of Phillips Petrol. Co., 491 F.3d 1180, 1193 (10th Cir. 2007); see also
Tracy O., 807 F. App’x at 854 (stating “an interpretation inconsistent with the plan’s unambiguous language” is
arbitrary and capricious).
175

Ian C. v. UnitedHealthcare Ins. Co., 87 F.4th 1207, 1219 (10th Cir. 2023) (internal quotation marks and citations
omitted); see also Tracy O., 807 F. App’x at 853 (stating that under an arbitrary and capricious review, “the
administrator’s decision will be upheld unless it is not grounded on any reasonable basis”) (emphasis in original)
(internal quotation marks and citation omitted); Foster v. PPG Indus., Inc., 693 F.3d 1226, 1231–32 (10th Cir. 2012)
(stating the “abuse-of-discretion standard” and the “arbitrary-and-capricious standard” are interchangeable in the
ERISA context).
176

LaAsmar v. Phelps Dodge Corp. Life, Accidental Death & Dismemberment & Dependent Life Ins. Plan, 605 F.3d
789, 801 (10th Cir. 2010); see also David P. v. United Healthcare Ins. Co., 77 F.4th 1293, 1313 (10th Cir. 2023)
(“[A] court reviewing an administrator’s benefits decision cannot consider reasons the administrator included in its
internal notes when the administrator never conveyed those reasons to the claimant.”).
177

Caldwell v. Life Ins. Co. of N. Am., 287 F.3d 1276, 1282 (10th Cir. 2002) (“Substantiality of the evidence is
based upon the record as a whole.”).
178

Scruggs v. ExxonMobil Pension Plan, 985 F.3d 1356, 1362–63 (10th Cir. 2009) (“[I]f the plan provision is
unambiguous, and the plan administrator’s interpretation differs from the unambiguous meaning, then the plan
179

26

benefits” raised by a claimant on appeal, 180 arbitrary refusal to “credit the opinions of a treating
physician,” 181 and failure to consistently apply the unambiguous terms of an ERISA plan. 182
Procedurally, ERISA requires an administrator to provide a participant “adequate notice
in writing” that explains the specific reasons for a claim denial and “afford a reasonable
opportunity . . . for a full and fair review . . . of the decision denying the claim.” 183 For a “full
and fair” review, claimants must know what “evidence the decision-maker relied upon,” have
“an opportunity to address the accuracy and reliability of the evidence, [and] hav[e] the decisionmaker consider the evidence presented by both parties prior to reaching and rendering his
decision.” 184 Additionally, administrators “may not arbitrarily refuse to credit a claimant’s
reliable evidence, including the opinions of a treating physician,” but administrators are not
required to “accord special weight to the opinions of a claimant’s physician” or provide an
“explanation when they credit reliable evidence that conflicts with a treating physician’s
evaluation.” 185
The court concludes Cigna did not fail to engage with the medical opinions submitted by
Plaintiffs. However, the court also determines the denials were based on unreasonable,
inconsistent interpretations of the Plan and were thus arbitrary and capricious.

administrator’s interpretation is unreasonable, and the decision to deny benefits based on that interpretation is
arbitrary and capricious.”) (internal quotation marks and citation omitted).
David P. v. United Healthcare Ins. Co., 77 F.4th 1293, 1309 (10th Cir. 2023); see also Ian C., 87 F.4th at 1222
(“If an administrator’s decision ignores an independent ground for coverage and there is scant evidence to refute the
claimant’s theory, then the decision fails arbitrary-and-capricious review.”).
180

Tracy O. v. Anthem Blue Cross Life & Health Ins., 807 F. App’x 845, 854 (10th Cir. 2020) (quoting Black &
Decker Disability Plan v. Nord, 538 U.S. 822, 834 (2008)) (ellipsis omitted).
181

182

Id. (citation omitted).

183

29 U.S.C. § 1133(2).

184

Sandoval v. Aetna Life & Cas. Ins. Co., 967 F.2d 377, 382 (10th Cir. 1992).

185

Nord, 538 U.S. at 834.

27

A. Cigna Adequately Considered the Opinions of M.A.’s Treating Physicians
Relying on D.K. v. United Behavioral Health and David P. v. United Healthcare
Insurance Company, Plaintiffs argue Defendants did not provide a “full and fair review” because
Defendants “fail[ed] to engage with the opinions of [M.A.’s] treating caregivers” and provided
only “conclusory interpretations” without reference to the medical records. 186 Specifically,
Plaintiffs complain “[t]he denial letters … make no mention of the treating professional opinions
[of Dr. Benyas and Dr. Porter] that recommended M.A. receive residential care at Fulshear.” 187
In. D.K., the district court reviewed denial of ERISA-governed benefits for a
beneficiary’s inpatient behavioral health care. 188 The beneficiary engaged in extensive mental
health treatment, including therapy and participation in multiple inpatient and outpatient
treatment programs, before entering a long-term residential treatment facility. 189 After an initial
approved stay, the defendants, relying on a coverage provision that had been removed, denied
further coverage. 190 Reminding defendants the provision had been removed, the plaintiffs
appealed and defendants again denied coverage, determining the long-term treatment was not a
covered service. 191 The plaintiffs appealed again and an external review yielded the same
result. 192 The denial letter from the last internal review stated the administrator considered “the

186

Plaintiffs’ Motion at 18–20.

187

Id. at 19.

188
See generally, D.K. v. United Behavioral Health, No. 2:17-CV-01328-DAK, 2021 WL 2554109 (D. Utah Jun.
22, 2021), aff’d, 67 F.4th 1224 (10th Cir. 2023).

Id. at *3 (stating the beneficiary had “11 psychiatric emergency room visits; five in-patient hospitalizations
(totaling 58 days); four stints of residential treatment centers lasting 38 days, 57 days, 63 days, and 79 days (totaling
237 days); six enrollments into partial hospitalization programs (totaling 69 days); weekly individual therapy; family
therapy; medication management from a psychiatrist; and some DBT therapy” before entering the long-term
residential treatment program).
189

190

Id. at *4.

191

Id.

192

Id. at *4–5.

28

medical record, case management notes, and appeal letter.” 193 The external review denial letter
stated the administrator considered “the appeal information, denial letters, correspondence, . . .
submitted medical information, submitted criteria, and the [s]ummary [p]lan [d]escription.” 194
The plaintiffs challenged the determination arguing, among other things, the defendants
“incorrectly disregarded [the beneficiary’s] treating physicians’ opinions” and failed to
“articulate how they applied the terms” of the benefit plan to the beneficiary’s “medical history
or current condition.” 195 The district court agreed. 196 However, the court’s conclusion was not
based on a disregard for the physician letters or information the plaintiffs submitted with their
appeal. Rather, the court concluded the beneficiary’s “medical history and her treating
professionals’ opinions [stood] in stark contrast to the denial letters’ scant reasoning.” 197 Despite
the beneficiary’s very extensive prior mental health treatment, “the only reference to all of [the
beneficiary’s] medical history and professionals’ opinions [was] a passing reference stating that
the purpose of the treatment was to ‘consolidate’ [the beneficiary’s] ‘gains.’” 198 Here, there is
not a blatant discrepancy between M.A.’s medical history and Cigna’s denial letters sufficient to
conclude Cigna did not consider the opinions of M.A.’s treating physicians. Unlike the denial
letters in D.K. that lacked “any analysis, let alone a reasoned analysis,” 199 Cigna’s denial letters

193

Id. at *9.

D.K. v. United Behavioral Health, No. 2:17-CV-01328-DAK, 2021 WL 2554109, at *9 (D. Utah Jun. 22, 2021),
aff’d, 67 F.4th 1224 (10th Cir. 2023).
194

195

Id. at *8.

196

Id. at *9.

197

Id. at *10.

198

Id. at *3, 10 (emphasis and quotation marks in original).

199

Id. at *10 (emphasis in original).

29

reference behaviors “reported” and “described” in the medical records. 200 Indeed, both denial
letters state all information submitted with Plaintiffs’ appeals was considered. 201
Plaintiffs also rely on David P. v. United Healthcare Insurance Company to support their
contention that Defendants failed to engage with the medical opinions of Dr. Benyas and
Dr. Porter. 202 The court is similarly unpersuaded. In David P., the claims administrator denied
benefits for residential treatment at two different facilities for the beneficiary’s mental health and
substance abuse disorders. 203 During the appeals process, the defendants gave varying reasons
for denying coverage. Defendants initially denied coverage based on failure to get
preauthorization. 204 Plaintiffs appealed, asserting preauthorization was not required, and
submitted medical records. 205 The denial on the first administrative appeal stated no clinical
information indicated treatment was required. 206 With their second appeal, the plaintiffs
submitted a chronological history with extensive documentation and informed defendants the
reviewer “overlooked [the plaintiff’s] substance use disorder as an independent ground for
coverage.” 207 The second appeal denial letter again stated there was no clinical information to
support residential treatment and made no mention of treatment for substance abuse. 208

200

AR at 1662–63, 1695–96.

See id. at 1662 (“All the original information in your file and the information submitted with this request were
reviewed.”); id. at 1695 (“After a review of the information submitted, [Cigna] has determined that the requested
services are not covered.”).
201

202

Plaintiffs’ Motion at 19–20.

203

David P. v. United Healthcare Ins. Co., 77 F.4th 1293, 1301 (10th Cir. 2023).

204

Id. at 1303.

205

Id. at 1304.

206

Id.

207

Id.

208

Id. at 1304–05.

30

On review, the district court concluded the denials were arbitrary and capricious because
they were inconsistent, did not address whether the substance abuse disorder “provided an
independent ground for coverage,” and “failed to engage with the recommendations made by
[the plaintiff’s] treating care givers.” 209 In concluding the administrators did not engage with the
opinions of the plaintiff’s treatment providers, the court noted the initial appeal denial stated
there was no clinical information to support treatment, and then, after the plaintiffs provided
medical records and other documentation, the second denial again stated there was no clinical
information indicating the plaintiff needed residential treatment. 210 Thus, “under th[o]se facts,”
it was evident the administrators had ignored the documentation the plaintiffs submitted. 211 In
contrast, the record in this case does not contain any obvious disregard of the information
Plaintiffs submitted. As stated above, Cigna stated it had considered all the materials submitted
with the appeal. Additionally, Cigna was not required to “affirmatively respond” to the materials
Plaintiffs submitted; the ERISA statute only requires the administrators to take the “materials
and arguments into account.” 212 Accordingly, Plaintiffs have not demonstrated Defendants
failed to provide a full and fair review in disregarding the medical opinions of M.A.’s treating
physicians.

209

See David P. v. United Healthcare Ins. Co., 77 F.4th 1293, 1309–10 (10th Cir. 2023).

210

Id. at 1310–12.

211

Id. at 1312.

Tracy O. v. Anthem Blue Cross Life & Health Ins., 807 F. App’x 845, 854 (10th Cir. 2020) (“ERISA does not
require plan administrators to accord special deference to the opinions of treating physicans, nor does it place a
heightened burden of explanation on administrators when they reject a treating physician’s opinion.”) (internal
quotation marks and citations omitted); 29 C.F.R. § 2560.503-1(h) (stating a full and fair review requires plaintiffs
be provided an opportunity to submit comments, documents, records, and other information pertaining to the claim
and the review “takes into account [all information] submitted by the claimant relating to the claim”).
212

31

B. Cigna’s Denials Were Arbitrary and Capricious Interpretations of the Plan
Although the court concludes Cigna did not fail to consider the letters of Dr. Benyas and
Dr. Porter, the court nevertheless concludes Cigna’s denials were arbitrary and capricious. A
decision that “fails to utilize the proper plan language or criteria” is arbitrary and capricious. 213
The court makes this determination “based on the language of the plan.” 214 Accordingly, the
court “scrutinize[s] the ‘plan documents as a whole and, if unambiguous, construe[s] them as a
matter of law.’” 215 “In making this determination, [the court] consider[s] the common and
ordinary meaning as a reasonable person in the position of the plan participant, not the actual
participant, would have understood the words to mean.” 216
Plaintiffs argue Defendants imposed “acute symptom requirements” for M.A.’s subacute
care at Fulshear. 217 Defendants counter “Plaintiffs cannot establish that 24-hour residential
treatment care is ‘subacute’ rather than ‘acute’ treatment,” 218 and they insist Plaintiffs incorrectly
“cast the medical necessity question as binary” because the criteria for acute inpatient care and
residential treatment partially overlap. 219 The court addresses these issues in turn and concludes

Flinders v. Workforce Stabilization Plan of Phillips Petroleum Co., 491 F.3d 1180, 1193 (10th Cir. 2007) (stating
the court considers whether a decision is “consistent with the purposes of the plan” in determining whether a denial
of benefits was arbitrary and capricious) (citation omitted); see also Fought v. UNUM Life Ins. Co. of Am., 379 F.3d
997, 1003 (10th Cir. 2004) (“[A]ssuming full and expansive discretion has been conferred, then the plan
administrator’s interpretation of [an] ambiguous plan provision should be judged as follows: (a) as a result of
reasoned and principled process . . . (d) consistent with the purposes of the plan.” (quoting Kathryn J. Kennedy,
Judicial Standard of Review in ERISA Benefit Claim Cases, 50 AM. U.L.REV. 1083, 1135, 1172 (2001))).
213

214

Weber v. GE Group Life Assur. Co., 541 F.3d 1002, 1011 (10th Cir. 2008).

215

Id. (quoting Miller v. Monumental Life Ins. Co., 502 F.3d 1245, 1250 (10th Cir. 2007)).

216

Id. (emphasis in original) (internal quotation marks and citation omitted).

217

Plaintiffs’ Motion. at 35.

218

Tufts’ Opposition to Plaintiffs’ Motion at 39.

219

Cigna’s Opposition to Plaintiffs’ Motion at 30–31.

32

the Plan designates residential treatment as subacute care and Cigna arbitrarily and capriciously
applied acute criteria in denying benefits for M.A. 220
A. Residential Treatment is Subacute Care Under the Plan
The court first addresses whether residential treatment is acute or subacute according to
the language of the Plan. Cigna’s Standards and Guidelines/Medical Necessity Criteria For
Treatment of Mental Health and Substance Use Disorders distinguish between four levels of
mental health treatment for adults: acute inpatient, residential, partial hospital, and intensive
outpatient. 221 Cigna’s descriptions and accompanying medical necessity criteria distinguish the
levels of care by degree. 222 The Plan states both acute inpatient care and partial hospital care are
intended to provide acute treatment. 223 Acute inpatient care is utilized when an individual needs
intensive around-the-clock psychiatric and medical monitoring, acute management to prevent
harm and ensure safety, and a “contained environment for specific treatments that could not be
safely done in a non-monitored setting.” 224 Partial hospitalization treatment provides only shortterm acute care “for individuals who can maintain personal safety with support systems in the

Although Plaintiffs present their incorrect-criteria argument in the context of the Parity Act, the court concludes
Cigna’s failure to apply the proper plan criteria was arbitrary and capricious because it was an inconsistent
interpretation of the Plan. See Raymond M., 463 F.Supp.3d at 1250 (“[A]n ERISA plan fiduciary’s failure to utilize
the proper plan language or criteria in evaluating whether a plan beneficiary is entitled to benefits is arbitrary and
capricious.”); Owings v. United of Omaha Life Ins. Co., 873 F.3d 1206, 1213 (10th Cir. 2017) (concluding an
administrator’s decision that “misconstrued” the requirements for benefits was arbitrary and capricious); McGraw v.
Prudential Ins. Co. of Am., 137 F.3d 1253, 1259 (10th Cir. 1998) (“A decision to deny benefits is arbitrary and
capricious if it is not a reasonable interpretation of the plan’s terms.”) (citation omitted). Because the court
concludes Defendants’ denials were arbitrary and capricious in applying the wrong criteria for benefits, the court
does not reach the Parity Act.

220

221

AR at 143–65.

222

See id.

Id. at 149 (stating acute inpatient care provides “[a]cute management to prevent harm or significant
deterioration”); id. 157 (stating partial hospital treatment “is similar in nature and intensity to that provided in an
inpatient hospital setting” and is meant “to respond to acute situations”).
223

224

Id. at 149.

33

community” without 24 hour supervision. 225 The medical necessity criteria for acute inpatient
and partial hospitalization treatment both require an acute mental health disorder and include
criteria that mention actions or threats of harm to self or others. 226
In contrast, residential treatment is “transitional in nature” and focused on returning the
individual to the community. 227 Intensive outpatient treatment provides time-limited care “for
individuals who can maintain personal safety with support systems in the community” and have
some ability to fulfill outside obligations. 228 Residential treatment and intensive outpatient
treatment do not require an acute mental health disorder and the medical necessity criteria
include elements of independence and willingness to engage in treatment. 229 Although the Plan
does not explicitly delineate between acute and subacute care, from the perspective of a plan
participant it is clear the Plan classifies residential treatment as something less than acute or
subacute, so the administrator must apply the corresponding subacute residential medical
necessity criteria in making benefits determinations. 230

225

Id. at 157.

See id. at 151 (listing the following medical necessity criteria for acute inpatient care: “[t]he individual has been
diagnosed with a severe and acute mental health disorder” and either “[i]t is likely that the individual is currently at
imminent risk of causing serious bodily harm to him/herself or someone else” or “[i]t is very likely that serious harm
will come to the individual due to a psychiatric illness, and that harm cannot be prevented at a lower level of care”);
id. at 160 (listing the following medical necessity criteria for partial hospitalization: “[t]he individual has been
diagnosed with a moderate-to-severe and acute mental health disorder” and “[t]he individual has recently
demonstrated actions of or made serious threats of self-harm or harm to others, but does not require a 24 hour
monitoring environment”).
226

227

AR at 153.

228

Id. at 162.

See id. at 156 (listing the following medical necessity criteria for residential treatment: a “moderate-to-severe
mental health disorder,” “[t]he individual is expressing willingness to actively participate in this level of care” and
“able to function with some independence, [and] participate in structured activities in a group environment”); id. at
165 (listing the following medical necessity criteria for intensive outpatient care: a “moderately severe mental health
disorder,” the individual is “mentally and emotionally capable to engage in the treatment program,” and “willing to
engage in treatment”).
229

See Raymond M. v. Beacon Health Options, Inc., 463 F. Supp. 3d 1250, 1275 (“[T]he Plan classifies [residential]
treatment as subacute, so the administrator must apply subacute medical necessity criteria to benefits decisions for
claimants seeking [residential treatment] care for subacute mental health and/or substance abuse conditions.”).
230

34

B. Cigna Applied Acute Criteria in Denying Benefits for M.A.’s Subacute Care
The court agrees Cigna’s denials are based, at least in part, on M.A.’s failure to meet are
acute-level criteria. Because the Plan classifies residential treatment as subacute care, applying
acute inpatient medical necessity criteria in determining benefits was inconsistent with the Plan
and arbitrary and capricious.
Cigna’s medical necessity criteria for a continued stay for both acute inpatient and
residential treatment require that “[t]he individual continues to meet all elements of Medical
Necessity” for the specified level of care. 231 In determining coverage eligibility for a continued
stay, therefore, a reviewer first looks to whether the individual still meets the medical necessity
criteria that qualified the individual for treatment in the first instance.
The Plan provides the following medical criteria to be admitted for acute inpatient mental
health treatment:
All of the following must be met:
1. All Elements of Medical Necessity must be met.
2. The individual has been diagnosed with a severe and acute mental health disorder,
per the most recent version of the Diagnostic and Statistical Manual of Mental
Disorders that is significantly impairing functioning.
3. One or more of the following criteria must be met:
A. It is likely that the individual is currently at imminent risk of causing
serious bodily harm to him/herself or someone else due to a psychiatric
illness, (not due to intentional criminal behavior), as evidenced by:
v) A recent and serious suicide attempt or threat of violence
toward others involving deadly intent or plan, OR
vi) A current expression of suicidal intent or homicidal intent with
a plan for bodily harm that has a high likelihood of becoming
deadly or causing serious injury, OR
vii) Recent, serious and intentional self-injury along with an
inability to develop a reasonable plan for safety so that 24 hour
observation, safety measures, and treatment are needed in a
secure setting, OR
viii) Recent violent, impulsive, and unpredictable behavior that is
likely to result in harm to the individual or someone else
231

AR at 151–52, 156.

35

without 24 hour observation and treatment, including the
possible use of seclusion and/or restraints in a secured setting.
B. It is very likely that serious harm will come to the individual due to
psychiatric illness, and that harm cannot be prevented at a lower level of
care as evidenced by:
i)
The individual is unable to care for self (nutrition, shelter, and
other essential activities of daily living) due to his/her psychiatric
condition so that imminent life-threatening deterioration is
expected, OR
ii) The individual has irrational or bizarre thinking, and/or
severe slowness or agitation in movements along with
interference with essential activities of daily living of such
severity as to require 24 hour psychiatric/medical, nursing and
social service interventions.
C. The individual has a secondary condition such that treatment cannot be
provided at a less restrictive level of care as evidenced by:
i)
A life threatening complication of an eating disorder; OR
ii)
An active general medical condition … which requires that
psychiatric interventions be monitored in a 24 hour
psychiatric/medical setting, OR
iii) The individual requires Electroconvulsive Therapy (ECT) and
the initial trial requires a 24 hour psychiatric/medical setting.
iv) Appropriate less restrictive levels of care are unavailable for safe
and effective treatment.
D. Appropriate less restrictive levels of care are unavailable for safe and
effective treatment. 232
In contrast, the medical necessity criteria for residential mental health treatment states:
All of the following must be met:
1.
All Elements of Medical Necessity must be met.
2.
The individual is expressing willingness to actively participate in this level of care.
3.
The individual has been diagnosed with a moderate-to-severe mental health
disorder … and [exhibits] evidence of significant distress/impairment.
4.
This impairment in function is seen across multiple settings such as work, home,
and in the community, and clearly demonstrates the need for 24 hour psychiatric
and nursing monitoring and intervention.
5.
As a result of the interventions provided at this level of care, the symptoms and/or
behaviors that led to the admission can be reasonably expected to show
improvement such that the individual will be capable of returning to the community
and to less restrictive levels of care.
6.
The individual is able to function with some independence, participate in structured
activities in a group environment.

232

Id. at 151–52 (emphasis added).

36

7.

There is evidence that a less restrictive level of care is not likely to provide safe and
effective treatment. 233

Cigna’s initial denial letter dated August 5, 2020, references both acute inpatient and
residential treatment medical necessity criteria. For example, Cigna states M.A. does not qualify
for continued coverage because “there is no current risk of harm to [M.A.] or others.” 234 A
current risk of harm is a medical necessity criterion for acute inpatient treatment but not
residential treatment. 235 On the other hand, the letter also states, “[y]ou do not have a severe and
pervasive psychiatric disorder which results in significant impairment in multiple settings.” 236
Exhibiting significant impairment across multiple settings is a criterion for residential treatment
and is not a criterion for acute inpatient treatment. 237 Cigna’s remaining bases for denial in the
August 5, 2020 letter reference criteria applicable to both acute inpatient treatment and
residential treatment: the “need for 24 hour/day monitoring and active treatment,” family
involvement, and the inability to “receive psychiatric treatment in a less restrictive setting.” 238
Both appeal letters address the medical necessity criteria for continued care, but in
addressing the first criterion—the individual continues to meet all admission medical necessity

233

Id. at 156 (emphasis added).

234

Id. at 291–92.

235
Compare id. at 151 (listing “the individual is currently at imminent risk of causing serious bodily harm to
him/herself or someone else due to psychiatric illness” as a criterion for acute inpatient treatment admission) with id.
at 156 (including no references to harm or threat of harm in the medical necessity criteria for residential treatment).
236

AR at 292.

Compare AR at 156 (requiring a “moderate-to-severe mental health disorder” that causes significant distress or
impairment “seen across multiple settings such as work, home, and in the community” for residential treatment) with
id. at 151 (including no mention of impairment across multiple settings as a criterion for acute inpatient treatment).
237

AR at 292. Compare id. with AR at 151 (listing the need for 24-hour psychiatric monitoring and treatment or
intervention as a criterion for acute inpatient care), and id. at 156 (listing the need for 24-hour psychiatric and
nursing monitoring and intervention as a criterion for residential treatment), and id. at 152 (listing family
involvement and the inability to be effectively treated at a less restrictive level of care as an acute inpatient criterion
for continued stay), and id. at 156 (listing family involvement and the inability to be effectively treated at a less
restrictive level of care as a acute inpatient criterion for continued stay).
238

37

criteria—the letters reference medical necessity criteria for acute inpatient care. 239 Indeed, the
July 29, 2021 denial letter explicitly states M.A. “did not meet Medical Necessity Criteria for
continued stay at Acute Inpatient Mental Health Treatment for Adults.” 240 The letter goes on to
explain that M.A. “had not recently demonstrated actions or made serious threats of harm to
[herself] or others as a result of a mental health disorder that . . . [she] required . . . 24 hour
monitoring of a Residential Mental Health Treatment program for . . . safe and effective
treatment.” 241 This language closely tracks criterion 3(A)(iv) for acute inpatient admission: “It is
likely that the individual is currently at imminent risk of causing serious bodily harm to
him/herself or someone else due to a psychiatric illness as evidenced by . . . behavior that is
likely to result in harm to the individual or someone else without 24 hour observation and
treatment.” 242 As Plaintiffs point out, the residential treatment medical necessity criteria do not
include any reference to harm or threat of harm to self or others. 243
The August 5, 2021 letter also cites acute inpatient care medical necessity criteria. This
letter states M.A. does not meet the medical necessity criteria because she was “not reported to
be voicing thoughts of harm to self or others,” she was “not reported to be exhibiting aggression
or disordered thinking,” she was “in behavioral control” and “able to care for [her] basic
needs.” 244 Medical necessity criterion 3(B) for acute inpatient care requires: “It is very likely
that serious harm will come to the individual due to a psychiatric illness . . . as evidenced by: i)
The individual is unable to care for self . . . OR ii) The individual has irrational or bizarre

239

Compare AR at 151–52, with id. at 156, 1662–63, 1695–96.

240

Id. at 1663.

241

Id.

242

Id. at 151.

243

Plaintiffs’ Motion at 31–32; AR at 156.

244

AR at 1695.

38

thinking, and/or severe slowness or agitation in movements . . . .” 245 The medical necessity
criteria for residential treatment make no mention of thoughts of harm, irrational or disordered
thinking, or being able to care for oneself. 246
This court has addressed similar misapplications of Plan language in James F. ex rel.
C.F. v. CIGNA Behavioral Health, Inc. and Raymond M. v. Beacon Health Options, Inc. In
James F. the court concluded Cigna’s administrator arbitrarily and capriciously denied benefits
“by applying criteria more appropriately applied to acute inpatient admissions and treatment” for
the claimant’s residential treatment. 247 Specifically, Cigna stated the claimant was “not at risk of
harm to [self],” but Cigna’s “criteria for residential treatment admission [did] not require that the
patient be ‘a risk of harm to self or others.’” 248 The court concluded the administrator’s “failure
to utilize the proper plan language or criteria in evaluating whether a plan beneficiary is entitled
to benefits” was “not grounded on any reasonable basis,” was “arbitrary and capricious[,] and
[was] an abuse of discretion.” 249
Raymond M. is similar. In that case, the plan administrator denied coverage for a
continued residential stay by requiring the claimant to “prove acute-level conditions or
symptoms” for subacute residential treatment. 250 Specifically, the administrator denied benefits
because the plaintiff did not have a disorder such that “there would be a danger to self or others,”
she was not “psychotic or aggressive,” and did not exhibit an inability “to perform self-care

245

Id. at 151.

246

Id. at 156.

247
James F. ex rel. C.F. v. CIGNA Behavioral Health, Inc., No. 1:09-CV-070-DAK, 2010 WL 5395075, at *4–6 (D.
Utah Dec. 23, 2010).
248

Id. at *6.

249

Id. at *6.

250

Raymond M. v. Beacon Health Options, Inc., 463 F.Supp.3d 1250, 1278–79 (10th Cir. 2020).

39

activity”—all criteria for acute inpatient care under the relevant Plan. 251 The court concluded
that by denying “benefits [that] relied on criteria that [were] based on ‘interpretations that are
inconsistent with the plain language of the Plan,’” the administrator “acted in an arbitrary and
capricious manner.” 252 Although the administrator had discretion to interpret and administer the
Plan, the “discretion [did] not stretch so far as to ignore the language of the Plan itself.” 253 The
administrator’s application of more stringent medical necessity criteria than required was
arbitrary and capricious because it was “inconsistent with the plain language of the Plan.” 254
Cigna argues the administrator did not impermissibly refer to acute criteria in making
benefits determinations because “the criteria for acute inpatient care and residential treatment
partially overlap.” 255 However, the cases Cigna relies on for support all involve guidelines
where the language of the acute/subacute medical necessity criteria explicitly overlap—the
criteria have similar requirements and/or both use the term “acute.” 256 Such is not the case here.
The acute inpatient medical necessity criteria Plaintiffs point to in the denial letters have no

251

Id. at 1278.

252

Id. at 1279–80 (quoting Owings v. United of Omaha Life Ins. Co., 873 F.3d 1206, 1213 (10th Cir. 2017).

253

Id. at 1279.

254

Id. at 1280 (internal quotation marks, alteration, and citation omitted).

Cigna’s Opposition to Plaintiff’s Motion at 31; see also Tufts’ Opposition to Plaintiff’s Motion at 35–36 (arguing
Plaintiffs’ use of “labels of ‘acute’ and ‘subacute’ is insufficient” to prove disparate requirements because “there
appears to be no meaningful difference between the selected . . . admissions criteria” despite the different language)
(citing M.Z. v. Blue Cross Blue Shield Ill., No. 1:20-CV-00184-RJS-CMR, 2023 WL 2634240 (D. Utah Mar. 24,
2023)).
255

256
See Mark M. v. United Behavioral Health, No. 2:18-CV-00018-BSJ, 2020 WL 5259345, at *8, 10 (D. Utah Sept.
3, 2020) (stating the reference to the “suicidal or . . . imminent risk of self-harm” acute criterion was relevant in
applying the residential treatment criterion of “the member is not in imminent or current risk of harm to self, others,
and/or property”); Anne M. v. United Behavioral Health, No. 2:18-CV-808, 2022 WL 3576275, at *10 (D. Utah
Aug. 19, 2022) (rejecting the plaintiffs’ argument that the administrator required acute symptoms for subacute care
because, under the Plan, residential treatment was medically necessary only if needed to address short-term “acute
changes in the member’s condition” that “renders outpatient treatment temporarily inadequate”); Mary D. v. Anthem
Blue Cross Blue Shield, 778 F. App’x 580, 591 (10th Cir. 2019) (concluding an implicit look at the acute care
criterion of “imminent suicidal risk or danger to others” was relevant to the residential treatment criterion of “selfinjurious or risk-taking behaviors that risk serious harm”).

40

overlap with any residential treatment criteria. 257 Additionally, the July 29, 2021 letter
specifically states “your symptoms do not meet Medical Necessity Criteria for continued stay at
Acute Inpatient Mental Health Treatment for Adults.” 258 The court concludes Cigna’s denial of
benefits was “based on interpretations that are inconsistent with the plain language of the Plan”
and is therefore arbitrary and capricious. 259
III. Remedy
Having concluded Defendants’ denial of benefits was arbitrary and capricious, the court
“may either remand the case to the plan administrator for a renewed evaluation of [M.A.’s case]
or . . . order an award of benefits.” 260 Plaintiffs argue the court should award benefits because a
remand “runs a significant and problematic risk of creating an unfair ‘heads we win; tails, let’s
play again’ system of benefits adjudication in favor of defendant insurance companies.” 261 Not
surprisingly, Defendants argue “the only appropriate remedy would be a remand of the claim
back to Cigna for further review and/or further factual development of the record.” 262

See Plaintiffs’ Motion at 31–32 (listing the following acute inpatient medical necessity criteria identified in the
denial letters: current risk of harm to self or others; voicing thoughts of harm to self or others; not exhibiting
aggression or disordered thinking); Plaintiffs’ Opposition to Tufts’ Motion at 18–19 (same); Plaintiff’s Opposition to
Cigna’s Motion at 22 (stating Cigna improperly based the denials on “no current risk of harm to self or others, and
no serious threats of harm to yourself or others, and not voicing thoughts of harm to self or other no exhibiting
aggression or disordered thinking”) (internal quotation marks and citations omitted).
257

258

AR at 1663.

Raymond M. v. Beacon Health Options, Inc., 463 F. Supp. 3d 1250, 1279 (10th Cir. 2020).; see also Flinders v.
Workforce Stabilization Plan of Phillips Petroleum Co., 491 F.3d 1180, 1193 (10th Cir. 2007) (stating a benefits
determination is arbitrary and capricious if it is not “consistent with the purposes of the plan”); James F. ex rel. C.F.
v. CIGNA Behavioral Health, Inc., No. 1:09-CV-070-DAK, 2010 WL 5395075, at *6 (D. Utah Dec. 23, 2010)
(holding the “failure to utilize the proper plan language or criteria in evaluating whether a plan beneficiary is entitled
to benefits is an abuse of discretion,” “not grounded on any reasonable basis and is therefore arbitrary and
capricious”) (citations omitted).
259

260

Weber v. GE Group Life Assur. Co., 541 F.3d 1002, 1015 (10th Cir. 2008).

261

Plaintiffs’ Motion at 37 (quoting Tam v. First Unum Life Ins. Co., 491 F. Supp. 3d 698, 712 (C.D. Cal. 2020)).

Cigna’s Opposition to Plaintiffs’ Motion at 36; see also Tufts’ Opposition to Plaintiffs’ Motion at 41 (stating “the
only appropriate remedy is for a remand for Cigna to evaluate whether benefits are due”).

262

41

The appropriate remedy “depends on the specific flaws in the plan administrator’s
decision.” 263 “The remedy when an ERISA administrator fails to make adequate findings or to
explain adequately the grounds of her decision is to remand the case to the administrator for
further findings or explanation.” 264 An award of benefits is only appropriate “if the evidence in
the record clearly shows that the claimant is entitled to benefits.” 265 Here, the record does not
clearly establish M.A. was eligible for coverage “[u]nder any reasonable interpretation.” 266
Accordingly, remand is the proper remedy. 267 However, on remand, Cigna may not “reevaluate
[M.A.’s claim] based on a rationale not raised in the administrative record.” 268 Cigna’s decision
letters must identify the reviewers and their credentials and “list expressly the levels of care
being applied, list each relevant criteria[,] and state in detail the facts considered in applying the
criteria with citations to the administrative record.” 269
Plaintiffs also request an award of attorney’s fees and costs pursuant to 29 U.S.C.
§1132(g). 270 Under ERISA, the court has discretion to award attorney’s fees in any action “by a

263

Flinders, 491 F.3d at 1194.

Caldwell v. Life Ins. Co. of N. Am., 287 F.3d 1276, 1288 (10th Cir. 2002) (citations omitted); see also Weber, 541
F.3d at 1015 (“Where the administrator failed to make adequate factual findings or failed to adequately explain the
grounds for the decision, then the proper remedy is to remand the case.” (internal quotation marks and citation
omitted)).
264

265

Weber, 541 F.3d at 1015.

Id. (stating the court correctly awarded benefits because the claimant was eligible for benefits under any
reasonable interpretation of the plan policy).
266

267
See Scott M. v. Blue Cross and Blue Shield of Massachusetts, 528 F. Supp. 3d 1200, 1220–21 (D. Utah Mar. 24,
2021) (concluding remand was the appropriate remedy when the administrator did not evaluate the correct medical
necessity criteria).
268

Carlile v. Reliance Standard Life Ins. Co., 988 F.3d 1217, 1229 (10th Cir. 2021).

269

Scott M., 528 F. Supp. 3d at 1221.

270

Plaintiffs’ Motion at 39.

42

participant, beneficiary, or fiduciary.” 271 In determining whether to award attorney fees under
section 1132(g)(1), the court considers the following factors:
(1) the degree of the opposing parties’ culpability or bad faith; (2) the ability of the
opposing parties to personally satisfy an award of attorney’s fees; (3) whether an award
of attorney’s fees against the opposing parties would deter others from acting under
similar circumstances; (4) whether the parties requesting fees sought to benefit all
participants and beneficiaries of an ERISA plan or to resolve a significant legal question
regarding ERISA; and (5) the relative merits of the parties positions. 272
“No single factor is dispositive and a court need not consider every factor in every case.” 273
Considering these factors, the court concludes an award of attorney’s fees is appropriate.
Cigna is responsible for erroneously assessing M.A.’s eligibility for benefits and can satisfy an
attorney’s fees award. Additionally, holding Defendants responsible may have a deterrent effect
for other improper benefit determinations. Accordingly, the court awards Plaintiffs their
reasonable attorney’s fees and costs and declines to award prejudgment interest. 274
CONCLUSION
For the reasons stated above, Plaintiffs’ Motion for Summary Judgment 275 is GRANTED
and Defendants’ Motions for Summary Judgment 276 are DENIED. On Plaintiffs’ cause of action
for wrongful denial of Plan benefits, the court REVERSES the denial of Plaintiff M.A.’s benefits
for her entire residential treatment at Fulshear and REMANDS to Cigna for proper
reconsideration. The court retains jurisdiction to reconsider Plaintiffs’ request for attorney’s fees
and costs following Cigna’s reconsideration of Plaintiffs’ benefits claim on remand.

271

29 U.S.C. § 1132(g)(1).

272

Gordon v. U.S. Steel Corp., 724 F.2d 106, 109 (10th Cir. 1983).

273

Cardoza v. United of Omaha Life Ins. Co., 708 F.3d 1196, 1207 (10th Cir. 2013) (citation omitted).

274

See 29 U.S.C. § 1132(g).

275

Dkt. 59.

276

Dkt. 57; Dkt. 58.

43

The Clerk of Court is directed to close the case, subject to the court’s retention of
jurisdiction over fee-related issues or a motion to reopen for good cause shown.

SO ORDERED this 10th day of March 2025.
BY THE COURT:
________________________________
ROBERT J. SHELBY
United States Chief District Judge

44