`
`
`
`THE HONORABLE JOHN C. COUGHENOUR
`
`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
`
`CASE NO. C20-0115-JCC
`
`ORDER
`
`CONTINENTAL MEDICAL TRANSPORT
`LLC, d/b/a JET RESCUE,
`
`
`
`
`
`v.
`
`Plaintiff,
`
`HEALTH CARE SERVICE CORPORATION,
`d/b/a BLUE CROSS BLUE SHIELD OF
`ILLINOIS, et al.,
`
`
`
`
`
`Defendants.
`
`This matter comes before the Court on the parties’ respective motions for summary
`judgment (Dkt. Nos. 30, 35) and motions to seal (Dkt. Nos. 28, 33). Having thoroughly
`considered the briefing and the relevant record, the Court finds oral argument unnecessary and
`hereby DENIES Plaintiff’s motion for summary judgment (Dkt. No. 35), GRANTS Defendants’
`motion for summary judgment (Dkt. No. 30), and GRANTS the parties’ motions to seal (Dkt.
`Nos. 28, 33) for the reasons explained herein.
`I.
`BACKGROUND
`Plaintiff is a provider of “long-range international air ambulance” services. (Dkt. No. 1 at
`2.) In July 2016, it transported D.O., a U.S. resident, from Lima, Peru to Miami, Florida for
`critical medical care to be rendered at Jackson Memorial Hospital. (Id.) D.O. initially fell ill
`
`ORDER
`C20-0115-JCC
`PAGE - 1
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`Case 2:20-cv-00115-JCC Document 42 Filed 05/24/21 Page 2 of 8
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`while travelling in Peru on July 10, 2016. (Id. at 5.) Shortly after, he arrived at Clinica Delgado,
`a 150-bed general hospital located in Lima, which Plaintiff describes as “one of the newest and
`most advanced hospital facilities in South America.” (Id. at 5.) Nevertheless, D.O.’s physicians
`at Clinica Delgado and his representative in Peru decided to transfer D.O. to Jackson Memorial
`Hospital for additional care. (Id. at 5–6.) D.O. passed away on July 27, 2016, approximately five
`days after arriving in Miami. (Id. at 6.)
`At the time of the transfer, D.O. was a participant in the Boeing Company’s Consolidated
`Health and Welfare Benefit Plan (“Boeing Plan”), which Blue Cross Blue Shield of Illinois
`(“BCBS”) administered. (Id.) The Boeing Plan is an ERISA-governed plan that expressly covers
`medically necessary air ambulance services. (See Dkt. No. 29 at 94.) Plaintiff presented charges
`to BCBS for the air ambulance services that it rendered to D.O. of $536,540, which Plaintiff
`asserted was the “usual, customary, and reasonable charge” for such services. (Dkt. No. 1 at 2.)
`BCBS denied the claim in December 2016. (Id. at 11.) Plaintiff, on behalf of D.O.’s estate,1
`internally appealed BCBS’s denial through two successive appeals in 2018 and 2019. (Id. at 12–
`14.) In each instance, BCBS upheld the denial based upon its finding that the flights were the
`product of a “family preference” rather than medical necessity. (Id.) Plaintiff then sought
`external review by an Independent Review Organization (“IRO”), which agreed with BCBS’s
`determination that the flight was not medically necessary. (Id. at 15.)
`Following its unsuccessful appeals, Plaintiff brought suit against the Boeing Plan and
`BCBS in this Court. (See generally id.) Plaintiff seeks benefits allegedly due to it, on behalf of
`D.O.’s estate, under the terms of the Boeing Plan pursuant to 29 U.S.C. § 1132(a)(1)(B), along
`with attorney fees and costs. (Id. at 16–17.) Plaintiff also sought equitable relief pursuant to 29
`U.S.C. § 1132(a)(3), (see id. at 17–18), but has since affirmatively withdrawn this claim, (see
`
`1 Prior to the flight, D.O.’s ex-wife, who was travelling with him in Peru and served as
`his representative for the medical decisions made in Peru, allegedly authorized the flight and
`executed a limited power of attorney and an assignment of benefits that authorized Plaintiff to
`seek reimbursement of the air ambulance services on D.O.’s behalf. (See Dkt. No. 1 at 8.)
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`ORDER
`C20-0115-JCC
`PAGE - 2
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`Case 2:20-cv-00115-JCC Document 42 Filed 05/24/21 Page 3 of 8
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`Dkt. No. 36 at 2). Presently before the Court are Plaintiff’s and Defendants’ motions for
`summary judgment on Plaintiff’s remaining ERISA-based claim, (see Dkt. Nos. 30, 35), as well
`as related unopposed motions to seal, (see Dkt. Nos. 28, 33).
`II.
`DISCUSSION
`The Employment Retirement Income Security Act of 1974 (“ERISA”) allows a plan
`participant or beneficiary “to recover benefits due to him under the terms of his plan, to enforce
`his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of
`the plan.” 29 U.S.C. § 1132(a)(1)(B).
`A. Standard of Review
`In an ERISA case, a motion for summary judgment is “the conduit to bring [that] legal
`question before the district court and the usual tests of summary judgment, such as whether a
`genuine dispute of material fact exists, do not apply.” Bendixen v. Standard Ins. Co., 185 F.3d
`939, 942 (9th Cir. 1999). The Court reviews a plan administrator’s denial of benefits “under a de
`novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority
`to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire &
`Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). When a plan does give the administrator that
`discretion, the Court reviews a denial of benefits for an abuse of discretion. Montour v. Hartford
`Life & Acc. Ins. Co., 588 F.3d 623, 629 (9th Cir. 2009). Whether an administrator abused its
`discretion is a question of law, not fact. Nolan v. Heald Coll., 551 F.3d 1148, 1154 (9th Cir.
`2009).
`It is undisputed that the Plan Administrator here had the authority to determine benefit
`eligibility and to construe the terms of the plan. (Compare Dkt. No. 30 at 11, with Dkt. No. 35 at
`12.) This is also consistent with the Plan Supplement and the Master Welfare Plan (“MWP”).
`(See Dkt. No. 29 at 76 (Plan Supplement indicating that the “Plan Administrator has the
`exclusive right . . . to administer, apply, construe, and interpret the Plan”), Dkt. No. 29-12 at 51
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`ORDER
`C20-0115-JCC
`PAGE - 3
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`Case 2:20-cv-00115-JCC Document 42 Filed 05/24/21 Page 4 of 8
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`(MWP indicating that the “Plan Administrator’s powers include full discretionary authority to
`interpret the Plan”).)
`In this instance, it was not the Plan Administrator, but BCBS who made both the initial
`coverage decision and subsequent decisions denying Plaintiff’s internal appeals. (Dkt. No. 1 at
`11–14.) Therefore, at issue is whether the Plan Administrator effectively delegated its authority
`to BCBS. See Madden v. ITT Long Term Disability Plan for Salaried Employees, 914 F.2d 1279,
`1283–84 (9th Cir. 1990). An effective delegation is one that is done in a manner consistent with
`the Plan. See Shane v. Albertson’s Inc., 504 F.3d 1166, 1171 (9th Cir. 2007) (“[T]he focus
`should [be] on whether the [] Plan contemplated the possibility of a transfer of discretionary
`authority to a third-party and whether there was evidence establishing [the] delegation.”).
`According to the MWP, the Plan Administrator may delegate its duties “in whatever
`manner and extent it chooses . . . [but a]ny allocation or delegation . . . will be in writing,
`approved by a majority vote.” (Dkt. No. 29-12 at 52.) This vote occurred at the December 18,
`2009 Employee Benefit Plan Committee meeting. (See Dkt. No. 38-1 at 2 (meeting minutes
`memorializing the decision and indicating the change is to occur no earlier than January 1,
`2011).2) BCBS’s delegation is consistent with the January 1, 2011 Administrative Services
`Agreement between BCBS and the Boeing Company, which provided BCBS with the
`“discretionary authority to administer claims in accordance with [the Plan] and to make initial
`claim determinations concerning the availability of Plan benefits and final review and benefit
`determinations for appealed Claims.” (Dkt. No. 29-11 at 53.) It is also consistent with the
`Summary Plan Description, notifying Plan participants that BCBS handles “the day-to-day
`administration of the plan” including “mak[ing] benefit decisions” and “process[ing] claim
`appeals.” (Dkt. No. 29-9 at 24.)
`
`
`2 The Court may consider evidence outside of the administrative record to determine the
`appropriate standard of review. See Tremain v. Bell Industries, Inc., 196 F.3d 970, 977 (9th Cir.
`1999).
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`ORDER
`C20-0115-JCC
`PAGE - 4
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`Case 2:20-cv-00115-JCC Document 42 Filed 05/24/21 Page 5 of 8
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`Plaintiff argues that any such delegation, to the extent it was effective, did not extend to
`the IRO who provided the external review in this case. (Dkt. No. 35 at 15.) Therefore, according
`to Plaintiff, the Court must review the overall denial decision de novo. (Id.) The Court disagrees.
`As it has previously indicated, an affirmation of an internal benefit decision by an external IRO
`only serves to validate the internal decision. Peter B. v. Premera Blue Cross, 2017 WL 4843550,
`slip op. at 5 (W.D. Wash. 2017). The external review process does not convert this Court’s
`review of a Plan Administrator or designee’s discretionary decision to a de novo review. See Yox
`v. Providence Health Plan, 659 F. App’x 941, 944 (9th Cir. 2016) (reviewing a decision by a
`plan administrator that was upheld by an IRO for an abuse of discretion). To conclude otherwise
`would render Firestone deference meaningless, in light of the Affordable Care Act’s requirement
`for external reviews. See Group Health Plans and Health Insurance Issuers: Rules Relating to
`Internal Claims and Appeals and External Review Processes, 76 Fed. Reg. 37,208, 37,210–11
`(June 24, 2011) (to be codified at 45 C.F.R. pt. 147.)
`The Court FINDS that in this instance the Plan Administrator effectively delegated its
`discretionary authority for making benefit determinations to BCBS. Accordingly, the Court will
`review BCBS’s benefit determinations for an abuse of discretion.
`B. Review of BCBS’s Denial Decisions
`The dispositive issue here is whether it was reasonable for BCBS to conclude that it was
`not medically necessary to transport D.O. by air ambulance from Clinica Delgado to Jackson
`Memorial Hospital between July 21 and July 22, 2016. See Firestone Tire & Rubber Co. v.
`Bruch, 489 U.S. 101, 111 (1989) (applying a reasonableness calculus to an abuse of discretion
`review). A decision is unreasonable if it is “(1) illogical, (2) implausible, or (3) without support
`in inferences that may be drawn from the facts of the record.” Salomaa v. Honda Long Term
`Disability Plan, 642 F.3d 666, 676 (9th Cir. 2011). In assessing the reasonableness of a decision,
`the Court “consider[s] all of the relevant circumstances in evaluating the decision by the plan
`administrator” or its designee. P. Shores Hosp. v. United Behavioral Health, 764 F.3d 1030,
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`ORDER
`C20-0115-JCC
`PAGE - 5
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`Case 2:20-cv-00115-JCC Document 42 Filed 05/24/21 Page 6 of 8
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`1041 (9th Cir. 2014). If the Court is “left with a definite and firm conviction that . . . a mistake
`has been committed,” it must find that there was an abuse of discretion. Id. (quoting United
`States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009)).
`The Plan provided coverage for air ambulance services when all of the following
`requirements were met: Ground ambulance is not available; the patient’s condition is unstable
`and requires rapid transport; and, in a medical emergency, transport from one hospital to another
`is necessary because “the first hospital does not have the required services or facilities to treat
`[the patient’s] condition.” (Dkt. No. 29 at 94.) In its two reviews of its initial denial decision,
`BCBS concluded that there was no evidence in the record suggesting that there were treatments
`that D.O. required, and would be an appropriate candidate for, that were unavailable at Clinica
`Delgado but would be available at Jackson Memorial Hospital. (Dkt. No. 29-7 at 45–49, 29-9 at
`47–50.) Instead, BCBS concluded that the transfer was done primarily in response to the family’s
`preference for D.O. to be cared for in the United States. (Id.)
`In reaching its decision, BCBS relied on a number of facts contained in D.O.’s medical
`records. This included Jackson Memorial Hospital’s intake form, which indicated, as the sole
`basis for D.O.’s transfer from Peru, his ex-wife’s preference “to move his care to the U.S.
`because she could not speak Spanish and did not understand the plan of care” in Peru. (See Dkt.
`No. 29-1 at 149.) In fact, medical records from Clinica Delgado indicate that, at the time of
`transfer, D.O. was in the intensive care unit but was improving and that he was in a “delicate
`state” and his condition “could deteriorate” during transportation. (Dkt. No. 29-2 at 87.)
`While D.O.’s treating physician at Clinica Delgado did, after the fact,3 indicate that the
`facility would not be able to provide D.O. with a liver transplant or extra-corporeal membrane
`
`
`3 Defendants contend that this statement was prepared for purposes of Plaintiff’s benefit
`denial appeal months after D.O. was transferred and that there is no reference to the need for
`such treatments in Clinica Delgado’s contemporaneous medical records for D.O. (Dkt. No. 30 at
`6; see Dkt. No. 29 at 72 (letter from Dr. Camare at Clinica Delgado referring to the transfer in
`the past tense).)
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`ORDER
`C20-0115-JCC
`PAGE - 6
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`Case 2:20-cv-00115-JCC Document 42 Filed 05/24/21 Page 7 of 8
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`oxygenation, and that this could be a basis for the transfer, the IRO opined that D.O. was not a
`candidate for either treatment, given his condition at the time of transport. (Dkt. No. 29-11 at 36–
`37.) Moreover, Plaintiff concedes that D.O. “was not considered for an ECMO or liver transplant
`procedure at Jackson Memorial.” (Dkt. No. 36 at 10.)
`It appears to this Court that D.O.’s plan of care once at Jackson Memorial Hospital was
`comparable to that in Peru. (Id. at 150.) Plaintiff’s briefing on this issue is telling. It does not
`describe, with any specificity, how the treatment that D.O. actually received at Jackson
`Memorial materially differed from what he received at Clinica Delgado. (See generally Dkt. No.
`35 at 23, 36 at 7–9, 40 at 6–7.) Instead, it discusses D.O.’s care at Jackson Memorial in general
`terms. (See Dkt. No. 36 at 9 (describing “intensive and specialized care,” “critical care
`management,” and “aggressive treatments”).) Nevertheless, despite the care D.O. received upon
`his arrival, Jackson Memorial’s records indicate that, after just a few days, the treating
`physicians concluded that “meaningful recovery is not expected” and his treatment shifted to
`“palliative services” with a “focus on comfort measures” in accordance with his “DNR” and his
`family’s decision. (Dkt. No. 29-2 at 4–5, 9.)
`BCBS’s initial and subsequent determinations that D.O.’s air ambulance flight from Peru
`to the United States was not medically necessary and was, instead, primarily to satisfy the wishes
`of D.O.’s representative in Peru at the time, were neither illogical, implausible, or without
`support from the facts in the record.
`Accordingly, summary judgment is GRANTED to Defendants on the claims contained in
`Plaintiff’s complaint.
`C. Motions to Seal
`Parties may seek to file a document under seal pursuant to Local Civil Rule 5(g). While
`there is a strong presumption of public access to the Court’s files, a document that a party seeks
`to attach to a dispositive motion may be filed under seal so long as the party shows “compelling
`reasons” to do so. See Kamakana v. City and Cnty. of Honolulu, 447 F.3d 1172, 1178–81 (9th
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`ORDER
`C20-0115-JCC
`PAGE - 7
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`Case 2:20-cv-00115-JCC Document 42 Filed 05/24/21 Page 8 of 8
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`Cir. 2006). Here, Defendant moves to maintain the administrative record in this case under seal
`on the basis that it contains sensitive personal health information protected by the Health
`Insurance Portability and Accountability Act of 1996. (Dkt. No. 28.) Similarly, Plaintiff moves
`to maintain under seal additional medical records that it obtained through a third-party subpoena
`and filed with the Court as a supplement to the administrative record. (Dkt. No. 33.) There are
`sufficiently compelling reasons to maintain all of this information under seal that outweigh the
`public’s interest in their disclosure. See Karpenski v. Am. Gen. Life Cos., LLC, 2013 WL
`5588312, slip. op. at 1 (W.D. Wash. 2013). Accordingly, the parties’ motions to seal are
`GRANTED.
`III. CONCLUSION
`For the foregoing reasons, Defendants’ motion for summary judgment (Dkt. No. 30) is
`GRANTED, Plaintiff’s motion for summary judgment (Dkt. No. 35) is DENIED, and the parties’
`motions to seal (Dkt. Nos. 28, 33) are GRANTED. The Clerk is DIRECTED to maintain Docket
`Numbers 29 and 34 under seal. The case is DISMISSED with prejudice.
`DATED this 24th day of May 2021.
`
`A
`
`John C. Coughenour
`UNITED STATES DISTRICT JUDGE
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`ORDER
`C20-0115-JCC
`PAGE - 8
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