CASE 0:20-cv-00564-PAM-KMM Doc. 59 Filed 12/15/20 Page 1 of 10
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`UNITED STATES DISTRICT COURT
`DISTRICT OF MINNESOTA
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`Civ. No. 20-564 (PAM/KMM)
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`MEMORANDUM AND ORDER
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`T.G.,
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`v.
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`United Healthcare Services, Inc.,
`and United Behavioral Health,
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`Plaintiff,
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`Defendants.
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`This matter is before the Court on the parties’ cross-Motions for Summary
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`Judgment. For the following reasons, Defendants’ Motion is granted and Plaintiff’s
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`Motion is denied.
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`BACKGROUND
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`At the time of the events giving rise to this lawsuit, Plaintiff T.G. was a participant
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`in his employer-sponsored health-insurance plan administered by Defendant United
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`Healthcare Services, Inc. and United Behavioral Health (“UBH”) (collectively, “United”).
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`(Am. Compl. (Docket No. 21) ¶ 4.) In May 2018, T.G.’s 20-year-old son, J.G., started
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`residential mental-health treatment at a program called Pacific Quest in Hawaii. J.G. is on
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`the autism spectrum and had been suffering with depression and anxiety for years, but in
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`the late winter of 2018 his condition deteriorated to the point that his treating psychologist
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`recommended residential treatment. (Nguyen Aff. Ex. 1 (“Admin. R.”) pt. 1 (Docket No.
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`48) at 77.1) J.G. participated in the Pacific Quest program until August 2018; his parents
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`paid nearly $50,000 out of pocket for the treatment. After United denied coverage for the
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`program, T.G. exhausted the administrative appeals process and then brought this lawsuit.
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`The Amended Complaint raises a single claim under the Employee Retirement Income
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`Security Act (“ERISA”), 29 U.S.C. § 1132(a)(1)(B). (Am. Compl. ¶¶ 24-26.)
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`T.G.’s frustration with United’s handling of his son’s benefits is understandable.
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`United’s six denial letters or explanations of benefits are rife with errors and shifting
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`justifications for the denial of coverage. The first letter denying coverage, dated January
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`25, 2019, used the pronoun “her” to refer to J.G., who is, as noted, male; it referred to the
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`insurer as Optum rather than United; and it stated that although “wilderness therapy [is] an
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`experimental or unproven treatment” and thus was “not covered under her health plan
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`benefits,” Pacific Quest was “contracted with UBH,” implying that Pacific Quest was an
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`approved provider of mental-health services. (Admin. R. pt. 3 (Docket No. 48-2) at 94-
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`95.) This document also listed the “dates of service” as 05/05/18 through 02/02/18. (Id.
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`at 95.) United purported to “correct” the errors in a letter dated January 29, 2019, changing
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`Optum to UBH, “her” to “you,” and took out the sentence regarding the health plan’s
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`contract with Pacific Quest. (Id. at 51-52.)
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`1 The complete Administrative Record is attached as Exhibit 1 to the Declaration of Ngoc
`Han Nguyen (Docket No. 48). Because the record is voluminous, the exhibit is in five
`parts. The Court will cite each part with its corresponding docket number and will cite to
`the pages on the Court’s electronic filing system rather than the parties’ Bates numbering
`system, for ease of reference.
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`2
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`CASE 0:20-cv-00564-PAM-KMM Doc. 59 Filed 12/15/20 Page 3 of 10
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`In an Explanation of Benefits (“EOB”) dated January 30, 2019, United sent T.G. a
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`statement for J.G.’s treatment. (Admin. R. pt. 4 (Docket No. 48-3) at 162-63) This
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`statement listed the treatment as “outpatient,” the “amount billed” as $49,500, applied a
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`“plan discount” of $49,500, and stated that T.G. “owe[d] the provider” $0.00. The EOB
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`also noted that “the procedure code submitted is not eligible for payment. Therefore, no
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`benefits are payable for this service.” (Id. at 163.)
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`On April 12, 2019, United denied Plaintiff’s appeal of the original denial of benefits.
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`(Admin. R. pt. 3 (Docket No. 48-2) at 73-74.) The letter stated that the claim was not
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`approved for payment because “[t]he procedure code in question is not a payable service.
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`Therefore, the claim was appropriately processed.” (Id. at 73.)
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`On May 7, 2019, United again denied Plaintiff’s appeal, citing “Optum Level of
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`Care Guideline for the MENTAL HEALTH RESIDENTIAL TREATMENT CENTER
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`Level of Care.” (Id. at 29-30.) The letter stated, “You were admitted for treatment of” but
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`had no diagnosis or indeed any word or phrase after this statement. (Id. at 29.) It went on
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`to say that “it is noted you had made progress and that your condition no longer met
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`Guidelines for further coverage of treatment in this setting.” (Id.) But as Plaintiff points
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`out, the denial of benefits was as of J.G.’s first day in treatment, and thus his progress
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`during that treatment could not have been relevant to that denial.
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`The letter also stated that benefits were denied because Pacific Quest is a
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`“Wilderness Therapy Program”2 that the “Optum Clinical Technology Assessment
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`2 While United’s Behavioral Clinical Policy specifically addressing wilderness therapy is
`highly critical of wilderness therapy, the policy nowhere states that wilderness therapy is
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`Committee . . . found to be unproven and experimental at this time. Services that are
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`deemed to be unproven and experimental are not a covered benefit under this policy.” (Id.
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`at 29-30.) The reviewer took “the additional step of reviewing this case for medical
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`necessity.” (Id. at 30.) Because J.G. “was no longer in any serious or severe risk of harm
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`to self or others,” and “appeared to be engaged and participating in groups and activities
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`without the need for strict supervision and monitoring,” the reviewer determined that he
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`“could have continued care in the MENTAL HEALTH INTENSIVE OUTPATIENT
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`PROGRAM setting.” (Id.)
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`Finally, United denied Plaintiff’s May 2019 appeal in a letter dated June 24, 2019
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`(Admin. R. pt. 3 (Docket No. 48-2) at 84-85), and “corrected” on December 6, 2019 (id. at
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`40-42). The June 24 letter states that, as of May 5, 2018, J.G.’s “symptoms appeared to
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`have been sufficiently stable, to the extent that 24/7 monitoring in a supervised Residential
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`Treatment setting was not required to avoid risk of harm to self or others.” (Id. at 84-85.)
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`The reviewer also concluded that J.G. did not have “significant acute impairment of
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`behavior or cognition,” that he was “generally described as cooperative, responsive to staff,
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`willing and able to engage in programming, and in reasonable behavioral control.” (Id. at
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`85.) In addition, J.G. “had no self harm thinking; no self injurious behaviors were reported”
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`and he did not require “24 hour care and supervision.” (Id.) Accordingly, “[t]here were
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`no clinical barriers preventing you from attending a less intensive level of care” such as an
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`intensive outpatient setting. (Id.) Plaintiff notes that the “corrected” December 2019 letter
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`not a covered service. (Lewis Decl. Ex. C (Docket No. 36-1).)
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`merely added “care management notes” to the list of what the reviewer examined, in
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`addition to small non-substantive changes. (Id. at 40-42.) These letters constituted the
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`“Final Adverse Determination” of Plaintiff’s internal appeal. (Id. at 42.)
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`Plaintiff then requested and received an external review, as required by the
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`Affordable Care Act. This independent review, performed by MES Peer Review Services,
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`upheld United’s denial of benefits, finding that the “Mental Health Residential Treatment
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`level of care . . . was not medically necessary in this case.” (Id. at 67, 69.) The reviewer
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`determined that J.G.’s symptoms of depression, “such as an excessive amount of sleep,
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`refusing to get out of bed or go to classes, and work” did not “necessitate his confinement
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`in Residential care setting.” (Id. at 69.) Further, the reviewer found that the therapy Pacific
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`Quest provided “could have been provided in less restrictive setting such as Outpatient.”
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`(Id.) And “there is no evidence based practice guideline supporting the use of wilderness
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`therapy for [J.G.’s] condition.” (Id.)
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`The parties now cross-move for summary judgment, each contending that the
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`administrative record establishes that they are entitled to judgment as a matter of law.
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`DISCUSSION
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`A.
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`Standard of Review
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`Plaintiff first argues that the Court should review United’s decision de novo, citing
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`a Minnesota statute that ostensibly provides for such review. Minnesota law states that “no
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`health plan . . . may specify a standard of review upon which a court may review denial of
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`a claim or of any other decision made by a health plan company.” Minn. Stat. § 62Q.107.
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`Plaintiff contends that this provision “effectively writes out of existence the defendants’
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`‘abuse of discretion’ language on which their standard of review applies.” (Pl.’s Supp.
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`Mem. (Docket No. 34) at 19.)
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`Plaintiff cites no cases finding that this statute prescribes the standard of review for
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`federal courts to use in ERISA cases. It appears that only one other decision in this District
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`has discussed this statute in the context of a denial of health-insurance benefits. Little v.
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`PreferredOne Ins. Co., No. 19cv1363, 2019 WL 2591166, at *4 n.4 (D. Minn. June 25,
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`2019) (Doty, J.). Little, however, rejected the plaintiff’s argument that § 62Q.107
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`mandated a de-novo standard of review. Id.
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`This dearth of authority supporting Plaintiff’s argument reflects Plaintiff’s mistaken
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`reading of the statute. The statute does not purport to establish a new standard of review
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`for courts to use when evaluating insurance plans under federal law. Rather, it merely
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`states that a plan cannot force a court to use a particular standard. Moreover, because the
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`plan at issue is a self-funded plan, ERISA preempts any state law that purports to regulate
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`the plan in any event. See Williby v. Aetna Life Ins. Co., 867 F.3d 1129, 1136 (9th Cir.
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`2017). To the extent that the statute attempts to set a new standard of review for ERISA
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`claims, it is preempted.
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`The Supreme Court has made the ERISA standard of review clear: “[A] denial of
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`benefits challenged under [ERISA] is to be reviewed under a de novo standard unless the
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`benefit plan gives the administrator or fiduciary discretionary authority to determine
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`eligibility for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co.
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`v. Bruch, 489 U.S. 101, 115 (1989). If the plan vests the administrator or fiduciary with
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`such authority, the Court instead applies a deferential abuse-of-discretion standard. Id.;
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`see also Little, 2019 WL 2591166, at *3. Plaintiff does not dispute that the plan here gives
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`United the discretionary authority that triggers the abuse-of-discretion standard, and the
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`Minnesota statute simply does not apply.
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`B.
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`ERISA
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`United’s decision to deny benefits for J.G.’s treatment at Pacific Quest is an abuse
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`of discretion if it is arbitrary and capricious. Under such a standard, the decision must be
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`upheld if it is reasonable. Bruch, 489 U.S. at 111. “We measure reasonableness by whether
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`substantial evidence exists to support the decision, meaning more than a scintilla but less
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`than a preponderance.” Wakkinen v. UNUM Life Ins. Co. of Am., 531 F.3d 575, 583 (8th
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`Cir. 2008) (internal quotation omitted). “The requirement that the [plan administrator's]
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`decision be reasonable should be read to mean that a decision is reasonable if a reasonable
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`person could have reached a similar decision, given the evidence before him, not that a
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`reasonable person would have reached that decision.” Jackson v. Metro. Life Ins. Co., 303
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`F.3d 884, 887 (8th Cir. 2002) (internal quotation marks omitted) (emphases in original).
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`Plaintiff urges the Court to use a five-factor test to determine reasonableness:
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`In determining whether [a plan’s] interpretation of [its terms] and decision to
`deny . . . benefits are reasonable, we consider whether their interpretation is
`consistent with the goals of the Plan, whether their interpretation renders any
`language in the Plan meaningless or internally inconsistent, whether their
`interpretation conflicts with the substantive or procedural requirements of the
`ERISA statute, whether they have interpreted the words at issue consistently,
`and whether their interpretation is contrary to the clear language of the Plan.
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`Finley v. Special Agents Mut. Ben. Ass’n, Inc., 957 F.2d 617, 621 (8th Cir. 1992). But as
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`United points out, Plaintiff does not argue the first four factors, contending only that
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`United’s interpretation is contrary to the plan’s language.
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`Plaintiff’s dispute seems to be that, in focusing on whether J.G. intended self-harm,
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`United’s decision is contrary to the level of care guidelines that the plan incorporates.
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`These guidelines set forth who is eligible for treatment at a “Residential Treatment Center.”
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`(Admin. R. pt. 1 (Docket No. 48) at 298.) According to the guidelines, an individual is an
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`appropriate candidate for residential treatment “is not in imminent or current risk of harm
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`to self, others, and/or property” and is suffering from a condition that “cannot be safely,
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`efficiently, or effectively assessed and/or treated in a less intensive setting due to acute
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`changes in the [individual’s] signs and symptoms and/or psychosocial and environmental
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`factors.” (Id. (emphasis added).) Plaintiff argues that denying benefits for residential
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`treatment because J.G. was not experiencing suicidal ideation is directly contrary to these
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`guidelines.
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`Plaintiff is correct that United’s reviewers often focus on J.G.’s lack of suicidal
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`intent despite the clear language of the plan that lack of suicidal intent is a prerequisite for
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`admission to a residential treatment center. But United ultimately determined that J.G.’s
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`mental health did not warrant residential treatment for other reasons, in addition to his
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`ostensible lack of suicidal ideation.
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`The level-of-care guidelines mentioned above provide examples of individuals who
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`might need care in a residential treatment center. These examples include “[a]cute
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`impairment of behavior or cognition that interferes with activities of daily living to the
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`extent that the welfare of the [individual] or others is endangered” and “[p]sychosocial and
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`environmental problems that are likely to threaten the [individual’s] safety or undermine
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`engagement in a less intensive level of care . . . .” (Admin. R. pt. 1 (Docket No. 48) at
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`298.) While J.G.’s treating psychologist believed that residential treatment was necessary,
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`United need not accept his conclusions in this regard. “[C]ourts have no warrant to require
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`administrators automatically to accord special weight to the opinions of a claimant’s
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`physician; nor may courts impose on plan administrators a discrete burden of explanation
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`when they credit reliable evidence that conflicts with a treating physician’s evaluation.”
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`Black & Decker Disability Plan v. Nord, 538 U.S. 822, 834 (2003).
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`There is evidence in the record that J.G.’s mental-health issues did not require
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`residential treatment, including notes from a neuropsychologist who evaluated him from
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`February 2018 until shortly before he left for Pacific Quest. She noted that J.G. was
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`engaged and polite, arrived on time, and made “good effort” to complete all the tasks she
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`assigned. (Admin R. pt. 1 (Docket No. 48) at 58.) Moreover, the therapies J.G.’s treating
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`psychologist claimed were no longer working—cognitive behavioral therapy (CBT) and
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`dialectical behavioral therapy (DBT)—were the same therapies used at Pacific Quest.
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`(Admin. R. pt. 3 (Docket No. 48-2) at 69.)
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`In addition, United notes that J.G. did not receive the intensive therapy usually
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`found in residential treatment programs. He attended therapy sessions on fewer than half
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`of the days of his 90-day stay at Pacific Quest, often receiving only one hour of therapy a
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`day. (Admin. R. pt. 1 (Docket No. 48) at 80-202 (Pacific Quest treatment notes).) United
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`was entitled to believe that this evidence belied Plaintiff’s claim that J.G. required
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`residential treatment.
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`Not only did United’s reviewers disagree with J.G.’s treating psychologist, but an
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`independent outside reviewer also disagreed with that provider. “That . . . an independent
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`and external reviewer[] upheld Defendant’s decision further demonstrates that Defendant
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`acted reasonably.” Halberg v. United Behavioral Health, 408 F. Supp. 3d 118, 143
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`(E.D.N.Y. 2019). Plaintiff does not argue that the independent review was not truly
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`independent, and thus the Court credits this evidence as supporting United’s decision to
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`deny benefits.
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`Given the deferential standard of review for plan decisions under ERISA, the Court
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`cannot say that United abused its discretion in denying benefits here. Although the Court
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`may disagree with United’s determinations and does not countenance the sloppy and
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`confusing justifications United offered for its denial of benefits, United’s determination
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`was reasonable in light of all of the evidence in the record.
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`CONCLUSION
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`Accordingly, IT IS HEREBY ORDERED that:
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`1.
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`2.
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`Plaintiff’s Motion for Summary Judgment (Docket No. 32) is DENIED; and
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`Defendants’ Motion for Summary Judgment (Docket No. 40) is GRANTED.
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`LET JUDGMENT BE ENTERED ACCORDINGLY.
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` s/Paul A. Magnuson
`Paul A. Magnuson
`United States District Court Judge
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`Dated: December 15, 2020
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`10
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