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Tracy O. v. Anthem Blue Cross Life & Health Insurance Co.

United States District Court, D. Utah

August 10, 2017

TRACY O. and DANTE O., individually and as guardians of SYDNEY, a minor, Plaintiffs,


          Dee Benson, United States District Judge.

         Before the court are Defendants' and Plaintiffs' cross Motions for Summary Judgment (Dkt. Nos. 18 and 22.) The court held a hearing on the Motions on May 15, 2017. Plaintiffs were represented at the hearing by Brian King. Defendants were represented by Jessica Wilde and Timothy Houpt. At the conclusion of the hearing, the court took the motions under advisement. Now being fully advised, the court issues the following Memorandum Decision and Order.


         This is an ERISA action in which Plaintiffs seek payment under a group health benefit plan for their daughter, S.O.'s, 10-month stay at a residential treatment facility in Utah. (Complaint, ¶¶ 1-7; Answer, ¶¶ 1-7.)

         S.O.'s Treatment History

         S.O. has a long history of mental health diagnoses and treatment. (See R.[1]0064-0172.)[2]As an infant and toddler, S.O. had various physical and behavioral problems. (R. 0066-68.) Due to behavioral problems, S.O. began seeing a psychiatrist, Dr. Todd Hutton, when she began elementary school. (Id.) Dr. Hutton diagnosed S.O. with attention deficit disorder at one time and later diagnosed her with bipolar disorder. (Id.) S.O. was prescribed a variety of medications related to these diagnoses at a young age. (Id.)

         Throughout elementary school, though S.O. continued to exhibit behavioral problems, her symptoms diminished over time due to family, school, and clinical support. (R. 0068.) However, in middle school, S.O.'s symptoms began to worsen. (Id.) At the beginning of her eighth grade year, S.O. began seeing a psychiatrist, Dr. Linda Woodall. (Id.) Dr. Woodall observed that S.O. exhibited psychotic symptoms, mood swings, and dangerous behavior, including binge eating, purging, restricted eating, severe weight loss, cutting, and hypersexuality. (R. 0475.) S.O. ultimately could not cope with daily school attendance and completed her eighth grade school work at home, under the supervision of her mother. (R. 0069.) The summer following 8th grade, S.O. attempted to commit suicide by overdosing on a prescription medication. (Id.)

         Following her suicide attempt, Dr. Woodall recommended a special school for S.O. where she would be with other children with similar issues. (Id.) Although S.O. did better in the new school, she continued to have behavioral problems, including problems with peer relationships, binging, purging, and cutting herself. (Id.) S.O. also began to experience audio and visual hallucinations, for which Dr. Woodall prescribed medication. (R. 0070.) Around the middle of S.O.'s ninth grade year, in early 2012, Dr. Woodall recommended that S.O. be placed in a long term residential treatment facility in Utah. (Id.) Plaintiffs decided against in-patient treatment at that time. (Id.)

         In November 2012, during her ninth grade year, S.O. began to see a school therapist, Ms. Carol Maskin, MFT. (Id.) Ms. Maskin observed that S.O. continued to binge, purge, and cut herself, and expressed frequent suicidal thoughts. (Id.) Ms. Maskin further observed that S.O. had engaged in self harm, including attempting to carve a “U” into her leg. (Id.) Concerned with these behaviors, Ms. Maskin recommended an in-patient treatment program for S.O. (Id.)

         On or about January 14, 2013, S.O. entered the Center for Discovery, a medically monitored residential treatment facility in Lakewood, California. (Id.) S.O. did not do well at the Center for Discovery and left the program in early March 2013. (Id.) Following her release from the Center for Discovery, S.O. began a partial treatment program at BHC Alhambra Hospital, which provided day treatment facilities. (R. 0071.) During her treatment, S.O. was admitted on an in-patient basis for a short period of time in early April 2013. (Id.)

         Following her release from BHC Alhambra on April 2, 2013, S.O. continued to see Ms. Maskin and Dr. Woodall regularly on an outpatient basis. (Id.) By June 2013, Ms. Maskin recommended that Plaintiffs never leave S.O. unsupervised. (R. 0074.) At that time, Ms. Maskin observed that S.O. was no longer able to commit to a “suicide contract” in which S.O. would agree not to engage in self harm. (Id.) Accordingly, Ms. Maskin strongly recommended placement in a long-term facility in which S.O. could be removed from triggers and distractions that had contributed to her conditions. (Id.)

         In response to recommendations made by Dr. Woodall and Ms. Maskin, as well as Plaintiffs' observations of their daughter's condition, Plaintiffs decided to place S.O. in a residential treatment facility. (Id.) Plaintiffs selected New Haven Residential Treatment Center (“New Haven”), an in-patient residential treatment facility in Utah. (Id.) In connection with S.O.'s application to New Haven, a psychiatric evaluation was completed by Rick Biesinger, Psy. D., NCC, over a period of three visits in April 2013. (R. 144-56; Dkt. No. 38.) Dr. Biesinger noted that S.O. reported “numerous psychological difficulties”, including anxiety, nightmares, trembles, nausea, fear, ritualistic behaviors, and inflexible habits. (R. 0145.) S.O. also reported “numerous symptoms consistent with a mood disorder” and hyper-sexuality. (Id.) Dr. Biesinger also noted that, at the time of her interview, S.O. “denied having any suicidal ideation” and reported that she attempted suicide “like four years ago” and denied any other attempts. (R. 0148.) S.O. further reported that “she started cutting about four years ago” and that she continued to cut herself “maybe not every day, but a lot.” (Id.) When asked when she last cut, S.O. reported that it had been about two months ago. (Id.) Dr. Biesinger observed that S.O. “related well to the examiner and there were no indications of hostility or bizarre thought content.” (Id.) Based on his observations, Dr. Biesinger diagnosed S.O. with generalized anxiety disorder, major depressive disorder (recurrent, moderate), borderline personality tendencies, and bulimia nervosa. (R. 0155.) Dr. Biesinger further stated that “[t]he results of [S.O.'s] testing indicate that residential treatment is warranted and recommended” and that “[S.O's] suicidal ideation should be carefully monitored.” (Id.)

         On July 2, 2013, S.O. was admitted to New Haven. (Id.) S.O. continued to receive counseling throughout her stay at New Haven. (R. 0158-72.) S.O.'s counselor, Sarah Engler, LCSW, noted that S.O. continued to experience anxiety, obsessive-compulsive symptoms, and some hallucinations in treatment. (See R. 0161, 0166-69.) Early in her stay at New Haven, S.O. expressed some desires to hurt herself, such as hitting her head against a wall. (R. 0158.) However, during her time at New Haven, S.O. was not reported to have engaged in cutting, suicide attempts, or violent behavior towards others. (R. 0158-72.)

         Plan Provisions

         S.O.'s father, Plaintiff Dante O, was an employee of California Commerce Club, Inc., which sponsored a fully-insured group health benefit plan under ERISA. (Compl., ¶¶ 3, 5.) The group health benefit plan for the applicable time period includes the “Group Benefit Agreement, ” which is primarily comprised of administrative pages, and which expressly incorporates “all Combined Evidence of Coverage and Disclosure Forms” applicable to the group (collectively, the “Plan”). (R. 2527.)

         The Plan provides that “THE BENEFITS OF THIS PLAN ARE PROVIDED ONLY FOR THOSE SERVICES THAT WE DETERMINE TO BE MEDICALLY NECESSARY.” (R. 1780.) The Plan further provides a “Utilization Review Program” employed by Anthem to determine whether services are medically necessary:

The utilization review program evaluates the medical necessity and appropriateness of care and the setting in which care is provided. You and your physician are advised if we have determined that services can be safely provided in an outpatient setting, or if an inpatient stay is recommended. Services that are medically necessary and appropriate are certified by us and monitored so that you know when it is no longer medically necessary and appropriate to continue those services.

(R. 1831.)

         In determining whether a member qualifies for residential in-patient treatment, [3] there are certain admission criteria that must be met, as defined in the Psychiatric Subacute Residential Treatment Center section of the Behavioral Health Necessity Criteria. (R. 1947-48.) In order to qualify for residential psychiatric treatment the following criteria must apply:

1. The Covered Individual is manifesting symptoms and behaviors which represent a deterioration from their usual status and include either self injurious or risk taking behaviors that risk serious harm and cannot be managed outside of a 24 hour structured setting.
2. The social environment is characterized by temporary stressors or limitations that would undermine treatment that could potentially be improved with treatment while the Covered Individual is in the residential facility.
3. There should be a reasonable expectation that the illness, condition or level of functioning will be stabilized and improved and that a short term, subacute residential treatment service will have a likely benefit on the behaviors/symptoms that required this level of care, and that the Covered Individual will be able to return to outpatient treatment.


         When clinical information provided meets the criteria for medical necessity and residential treatment, the case may be certified by the utilization review or care manager. (R. 1944.) If the criteria do not appear to be met, the case “must be sent to a psychiatrist reviewer/peer clinical reviewer for an assessment of the case.” (Id.) “The psychiatrist reviewer/ peer clinical reviewer should use the behavioral health medical necessity criteria in reviewing a requested service for consistency, but must ...

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