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Robert O. v. Harvard Pilgrim Health Care, Inc.

United States District Court, D. Utah, Central Division

July 25, 2019

ROBERT O. and NANCY S., individually and as guardians of J.O., a minor, Plaintiffs,



         In this ERISA[1] case, Plaintiffs Robert O. and Nancy S., Massachusetts residents and the parents of J.O., have appealed Defendants' denial of their medical insurance claim for expenses incurred during J.O.'s treatment at Uinta Academy in Utah. Defendants Harvard Pilgrim Health Care (Harvard Pilgrim or HPHC) and United Behavioral Health dba Optum (UBH) contend that J.O.'s expenses are not covered by Robert's health care plan because (1) the plan does not cover non-emergency services of an out-of-state provider without pre-authorization, which Plaintiffs did not obtain, (2) the treatment at Uinta Academy was not medically necessary, and (3) Uinta provided primarily educational services, which the plan does not cover.

         Both parties filed motions for summary judgment. For the reasons set forth below, the court finds that the Plaintiffs are not entitled to coverage for J.O.'s treatment at Uinta. Accordingly, Defendants' motion is granted and Plaintiffs' motion is denied.


         Robert O. and Nancy S. are the parents of J.O., a minor, who has a long history of serious mental health and behavioral issues that began when she was a very young child. She has been treated over the years by a number of mental health care providers.

         J.O. is the beneficiary of a group health insurance plan called Harvard Pilgrim HMO, Massachusetts (the Plan), which was provided to her father, Robert, as a benefit of his employment. The Plan is governed by ERISA.

         The Plan covers treatment for mental health and substance abuse disorders. UBH, through a contract with Harvard Pilgrim, reviews and decides whether to grant Member claims for coverage of mental health and substance abuse services.

         The coverage at issue concerns treatment J.O. received at Uinta Academy (Uinta), a boarding school in Utah that provides treatment to adolescent girls with mental health conditions. She spent fourteen months there. (On August 25, 2015, J.O. was admitted to Uinta, where she stayed until October 25, 2016.)

         Relevant Terms of the Plan

         To determine the scope of mental health benefits available, one looks at the Plan's Benefit Handbook (sometimes referred to as the Summary Plan Description or SPD). (See Administrative Record (AR) 00040, 00029-00031 (2016); AR 00221, 00211-00213 (2015).)[3] For purposes of J.O.'s case, the most relevant language defining benefits and exclusions includes the following:

• “The Plan covers both inpatient and outpatient mental health care to the extent Medically Necessary[.]” (AR 00231 (2015), AR 00051 (2016).)
• In addition, “[a]ll mental health care must be arranged through the Behavioral Health Access Center” and it must be “provided by a contracted Plan Provider” unless no in-network provider has the expertise needed to provide the required service, in which case pre-authorization is required (AR 00213, 00231 (2015), AR 00031, 00051 (2016)).[4]
• “Plan Providers” are “Providers of health care services in the Enrollment Area that are under contract to provide care to Members of your Plan.” (AR 00219 (2015), AR 00038 (2016).) Uinta, located in Utah, is not a Plan Provider.
• To be eligible for coverage, Mental Health Care services:
must be provided either (1) at the office of a Licensed Mental Health Professional, or (2) at a facility licensed or approved by the health department or mental health department of the state in which the service is provided. … To qualify, a facility must be both licensed as, and function primarily as, a health or mental health care facility. A facility that is also licensed as an educational or recreational institution will not meet this requirement unless the predominant purpose of the facility is the provision of mental health care services.
(AR 00231-00232 (2015); AR 00051 (2016) (emphasis added).)
• The Benefit Handbook excludes “educational services or testing, except services covered under the benefit for Early Intervention Services. No. benefits are provided: (1) for educational services intended to enhance educational achievement; (2) to resolve problems of school performance….” (AR 00241 (2015) (emphasis added), AR 00062 (2016) (emphasis added).)

         Communications with UBH about Coverage

         In June 2015, after J.O.'s condition significantly deteriorated, Nancy began searching for alternative treatment options. According to J.O.'s therapist's treatment notes, Nancy “reported that she is starting to look into therapeutic boarding schools.” (AR 01504.) Similar notes were made throughout June and July 2015. (See AR 01509-01513, 01515, 01517-01520.) In August 2015, the therapist remarked in her notes that Robert and Nancy visited Uinta and decided to send J.O. there. (AR 01522-01524.) Nancy, in her search for treatment options, worked with “Larry Epstein PhD and an educational consultant James Meyers[sic].” (July 30, 2015 Evaluation Notes from Massachusetts General Hospital, AR 01414.)

         Although Nancy started exploring the idea of sending J.O. to a facility such as Uinta in early June 2015, she did not call UBH to ask about coverage until July 17, 2015. During that call, which was documented in UBH's case notes (see AR 02007), Nancy told UBH that J.O.'s providers had recommended an out-of-network facility in Utah. UBH reviewed J.O.'s benefits with Nancy and advised her that J.O. did not have out-of-network mental health benefits. Nancy was told that if she wanted to follow the recommendation of J.O.'s providers and obtain coverage, UBH needed a single case agreement[5] with the recommended provider, assuming there was no appropriate in-network provider. Then UBH's representative advised Nancy “to have one of the providers call if the providers believe[d] that none of the [in-network facilities] would be appropriate for [J.O.].” (Id.) UBH also told Nancy that the facility (Uinta) “must be willing to complete the UR [utilization review[6] process and submit claims[.]” (Id.)

         Instead of having one of J.O.'s providers call, Nancy called UBH on August 10, 2015, this time telling UBH that J.O.'s psychiatrist and educational consultant determined that J.O. needed residential treatment at Uinta. (See Aug. 10, 2015 Case Note, AR 02008.) UBH again told Nancy that she had an HMO plan with no out-of-network benefits. Nancy told UBH that she was planning to send J.O. to Uinta the week of August 24, 2015, at which point UBH told Nancy that if the facility wanted to pursue coverage, the facility or a local behavioral health provider could contact UBH with the request.

         After J.O. was admitted to Uinta (without approval from UBH), Uinta called UBH on September 23, 2015, to ask about benefits and was told that J.O. did not have out-of-network benefits. (AR 02009.) The case notes do not reflect any request by Uinta for authorization to provide covered services to J.O.

         On September 16, 2015, Nancy called UBH again to ask about residential treatment benefits. (See case note at AR 02010.) UBH told Nancy once more that the Plan did not have an out-of-network benefit for behavioral health treatment unless no in-network facility could provide the appropriate services, in which case a single case agreement must be completed.

         One month later, on October 14, 2015, Nancy called UBH asking about in-network residential treatment referrals. (See case note at AR 02011-02012.) This time, she claimed that J.O. had recently been depressed and cutting herself, and her provider recommended residential treatment. UBH gave her a list of nine in-network facilities and told her that “an assessment for any level of facility based care is required as part of the precertification process. The evaluation must be face-to-face, preferably with the provider of the requested [level of care].” (AR 02012 (emphasis added).) Nancy again asked about out-of-network benefits, and UBH again told Nancy that she had an HMO plan with no such benefits. Nancy asked how to have UBH consider an exception if none of the in-network facilities fit her needs and was told that the out-of-network facility would need to assess J.O. “and then contact UBH to make a formal request for a single case agreement[.]” (AR 02011-02012.)

         Six months later, on May 23, 2016, Nancy called UBH again. She called “to inquire about benefits.” (See case note at AR 02013.) The person taking Nancy's call “provided benefit information for all [levels of care].” (Id.) Nancy “requested referrals for [Residential Treatment Center]/therapist/MD via email[.]” (Id.) The next day UBH emailed a list of twenty-nine in-network providers to Nancy. (See AR 02013-02015.)

         According to the case notes memorializing the telephone conversations between UBH and Nancy, that was the last time Nancy contacted UBH to ask about coverage for J.O. The records do reflect that on June 6, 2016, UBH attempted to get information from Uinta and arrange for a clinical review of J.O. UBH left messages, but there is no evidence that Uinta returned UBH's telephone calls. (See AR 02015-02017.)

         UBH's Denial of Plaintiffs' Claims

         In the meantime, Uinta submitted claims to UBH, all of which were rejected.

         UBH submitted its first bill on November 11, 2015, a month and a half after J.O. enrolled at Uinta. The bill covered treatment provided during the last week of August 2015. On December 4, 2015, UBH issued an explanation of benefit form (EOB) denying the services with the explanation that “Your plan does not cover services you received from a non-network provider.” (See AR 00171, AR 01190.)

         On December 8, 2016, and February 28, 2016, UBH issued EOBs denying coverage of treatment provided in September 2015 and October 2015. UBH denied those bills for the same reason. (See AR 00169, 00172, 01191-01194.)

         Uinta submitted bills for monthly services between November 2015 and June 2016. UBH denied those bills as well. (See AR 00171-00184.)

         Appeal of UBH's Decision

         On June 1, 2016, Nancy appealed UBH's decision to deny the claims. As required by the Plan, Harvard Pilgrim reviewed the appeal. (AR 00074, AR 00020.) The appeal referred to three denials contained in the EOBs dated December 4, 2015, December 8, 2015, and February 28, 2016. In those EOBs, UBH's stated reason for denial was that the Plan “does not cover services you received from a non-network provider.” (AR 00169-00172.) Those denials focused only on ...

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