Todd R. et al v. Premera Blue Cross Blue Shield of Alaska

Filing 48

ORDER scheduling Oral Argument on parties' 37 , 33 MOTIONS for Summary Judgment : Motion Hearing set for 1/23/2019 at 01:30 PM. Signed by Judge James L. Robart. (SWT)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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TODD R., et al.,

CASE NO. C17-1041JLR
Plaintiffs,

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v.

ORDER SCHEDULING ORAL
ARGUMENT

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PREMERA BLUE CROSS BLUE
SHIELD OF ALASKA,

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Defendant.

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The court hereby SCHEDULES oral argument on the parties’ motions found at
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docket numbers 33 and 37 for Wednesday, January 23, 2019, at 1:30 p.m. The court
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DIRECTS the parties to come prepared to discuss the following issues that the parties did
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not fully brief:
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1. Should the parties’ motions be considered under Federal Rule of Civil
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Procedure 52 rather than Federal Rule of Civil Procedure 56? The Ninth Circuit has held
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that in an ERISA benefits case, where the court’s review is for abuse of discretion,
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ORDER - 1

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summary judgment is the proper “conduit to bring the legal question before the district

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court.” Bendixen v. Standard Ins. Co., 185 F.3d 939, 942 (9th Cir. 1999), overruled on

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other grounds by Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 965 (9th Cir.

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2006) (en banc). However, where, like here, the standard of review is de novo, 1 the

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Ninth Circuit has not definitively identified the appropriate vehicle for resolving an

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ERISA benefits claim. See Bunger v. Unum Life Ins. Co. of Am., 196 F. Supp. 3d 1175,

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1177 (W.D. Wash. 2016). In considering this issue, the court DIRECTS counsel to

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consider the following authority: Casey v. Uddeholm Corp., 32 F.3d 1094, 1099 (7th Cir.

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1994) (ruling that on de novo review of an ERISA benefits claim, the “appropriate

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proceeding[] . . . is a bench trial and not the disposition of a summary judgment motion”);

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Rabbat v. Standard Ins. Co., 894 F. Supp. 2d 1311, 1314 (D. Or. 2012) (concluding that

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the appropriate procedural vehicle for adjudicating an ERISA claim under de novo

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review is through a bench trial based on the administrative record); Lee v. Kaiser Found.

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Health Plan Long Term Disability Plan, 812 F. Supp. 2d 1027, 1032 (N.D. Cal. 2011)

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(“De novo review on ERISA benefits claims is typically conducted as a bench trial under

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Rule 52.”); Sammons v. Regence Bluecross Blueshield of Or., No. 3:15-CV-01703-SI,

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2016 WL 1171019, at *2 (D. Or. Mar. 23, 2016), aff’d, 739 F. App’x 385 (9th Cir. 2018)

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(See Plf. MSJ (Dkt. # 37) at 14 (“Premera’s decision to deny benefits to [Lillian] should
be reviewed de novo.”); Def. MSJ (Dkt. # 33) at 10 (“[T]he de novo standard . . . applies here.”);
Plf. Resp. (Dkt. # 43) at 2 (“The parties agree that this [c]ourt should apply a de novo standard of
review to assess the validity of [Lillian R.’s] need for residential treatment and Premera’s
responsibility to pay for that treatment.”)); see also Rorabaugh v. Cont’l Cas. Co., 321 F. App’x
708, 709 (9th Cir. 2009) (stating that the court may accept the parties’ stipulaton to de novo
review).

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(“The appropriate procedure to resolve this dispute is through a bench trial on an

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administrative record.”)

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2. Could Plaintiff Lillian R.’s continued treatment at Elevations Residential

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Treatment Center (“Elevations”) from May 1, 2014, until her discharge on June 21, 2015,

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be considered medically necessary based on the sixth provision of Defendant Premera

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Blue Cross Blue Shield of Alaska’s (“Premera”) Medical Policy, which provides that

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residential care admission is appropriate for an adolescent where the “[p]atient has

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currently stabilized during [an] inpatient treatment stay for severe symptoms or behavior

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and requires a structured setting with continued around-the-clock behavioral care.” (See

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AR (Dkt. # 36) (sealed) at 007137.) In assessing the applicability of this provision,

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please note that Dr. Shubu Ghosh specifically refers to “residential care” as “inpatient.”

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(See is at 000404-05 (“It is my opinion that inpatient residential care was the only option

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for [Lillian R.] [Lillian R.] needed inpatient residential level of care.”).) In addition,

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Premera repeatedly describes Lillian R.’s “residential care” at Elevations as “inpatient”

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throughout its briefing. (See Def. MSJ at 10 (“On January 14, 2016, MCMC upheld

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Premera’s denial of coverage for inpatient residential treatment.”), 13 (“The medical

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evidence offered by Plaintiffs fails to raise an issue of fact as to whether Jon’s condition

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was at such an acute level as to require inpatient care.”), 15; Def. Resp. (Dkt. # 44) at 10,

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22.)

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3. Specifically, the court DIRECTS the parties to consider whether or not Dr.

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Laura B. Brockbank’s February 2014 evaluation of Lillian R. supports the conclusion that

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Lillian R.’s continued treatment at Elevations was medically necessary based on the sixth

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provision of Premera’s Medical Policy. The court DIRECTS the parties to consider this

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issue in light of Dr. Brockbank’s strong recommendation that Lillian R. complete the

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program at Elevations, her recommendation that Lillian R. remain “closely monitored”

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given Lillian R.’s “history of running away and suicidal ideation,” and her observation

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that “[u]nless some change can occur on the family-system level, it is unlikely that

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[Lillian R.] will be successful at home.” (AR at 000031-32, 000427, 000429.)

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Dated this 14th day of January, 2019.

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A

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JAMES L. ROBART
United States District Judge

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ORDER - 4