United States District Court, D. Utah
TRACY O. and DANTE O., individually and as guardians of SYDNEY, a minor, Plaintiffs,
ANTHEM BLUE CROSS LIFE AND HEALTH INSURANCE COMPANY, and ANTHEM UM SERVICES INC., Defendants.
MEMORANDUM DECISION AND ORDER
Benson, United States District Judge.
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.
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.)
has a long history of mental health diagnoses and treatment.
(See R.0064-0172.)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.)
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.)
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.)
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.)
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.)
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.)
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.”
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.)
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.)
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
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.
determining whether a member qualifies for residential
in-patient treatment,  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
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
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