W. v. Providence Health Plan

— 1 — — 2 — — 3 — — 4 — — 5 — UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE — 7 — HOWARD W., WENDY W., and CASE NO. 2:21-CV-01346-JHC — 8 — KATHRYN H.-W., ORDER RE: MOTIONS FOR SUMMARY — 9 — Plaintiffs, JUDGMENT — 10 — v. — 11 — PROVIDENCE HEALTH PLAN, and the SWEDISH HEALTH SERVICES — 12 — EMPLOYEE BENEFITS PLAN, 519, — 13 — Defendants. — 14 — I — 15 — INTRODUCTION — 16 — Plaintiffs Howard W., Wendy H., and Kathryn H.-W., bring suit against Defendants — 17 — Providence Health Plan (PHP) and Swedish Health Services Employee Benefits Plan, 519 (Plan) — 18 — under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq. — 19 — Plaintiffs bring two causes of action: (1) to recover benefits under 29 U.S.C. § 1132 (a)(1)(B); — 20 — and (2) for a violation of the Mental Health Parity and Addiction Equity Act of 2008 (Parity — 21 — Act), which is enforceable under ERISA, 29 U.S.C. § 1132 (a)(3). Before the Court are the — 22 — parties’ cross-motions for summary judgment. Dkts. ## 44, 51. The Court has considered the — 23 — materials filed in support of, and in opposition to, the motions, and the balance of the case file. — 24 — 1 The Court also heard oral argument on the cross-motions. Being fully advised, and for the 2 reasons below, the Court GRANTS Defendants’ motion and DENIES Plaintiffs’ motion. 3 II BACKGROUND — 4 — A. The Parties — 5 — Plaintiffs Howard W. and Wendy H. seek reimbursement for their daughter H.-W.’s stays — 6 — at Pacific Quest, an outdoor “wilderness program” in Hawaii, and Maple Lake Academy (Maple — 7 — Lake) in Utah. AR_0016551; Dkt. # 2 at 2. H.-W., through her father, was a member covered by — 8 — the Plan, a self-funded employee welfare benefits plan sponsored by Swedish Health Services — 9 — (Swedish). Dkt. # 2 at 2; AR_000226. PHP, the Plan’s claims administrator, handled members’ — 10 — claims for medical benefits under the Plan. AR_000226–27. — 11 — B. The Plan — 12 — 1. Plan terms — 13 — The Plan covers only “medically necessary” treatment, defined as: — 14 — A medical service or supply that meets all the following criteria: It is required for the treatment or diagnosis of a covered medical condition. — 15 — It is the most appropriate supply or level of service that is essential for the diagnosis or treatment of the patient’s covered medical condition. . . . — 16 — AR_000122. “The fact that a service or supply is furnished, prescribed or recommended — 17 — by a physician or other provider does not, of itself, make it medically necessary.” Id. — 18 — The Plan excludes from coverage “wilderness programs that focus primarily on — 19 — education, socialization or delinquency” and “therapeutic schools.” AR_000071–73. — 20 — Also, with prior authorization, the Plan covers non-emergency residential mental health — 21 — services that are medically necessary. AR_000041; AR_000062; AR_000084–85. If prior — 22 — — 23 — 1 Citations to the administrative record (AR) reflect the page numbers assigned by Defendants in 24 the lower right-hand corner of each document. See Dkts. ## 47, 47-1, 47-2, 47-3, 47-4, 48. 1 authorization is not obtained but the service is verified as medically necessary, the Plan covers 2 the service, but the patient incurs a $300 penalty. AR_000041. Under the Plan, residential 3 treatment programs provide “a 24-hour level of care seven days a week for patients with long4 term or severe mental health or chemical dependency conditions,” where “[c]are is medically 5 monitored, with 24-hour medical and nursing availability.” AR_000122. Residential treatment 6 programs require “at least weekly physician visits.” AR_000277. 7 2. Optum Guidelines The Plan covers non-emergency residential mental health services when authorized by — 8 — PHP’s authorizing agent, Optum, “under standards generally applied by Optum.” AR_000062; — 9 — AR_000100. Optum relies on its “Level of Care Guidelines” for mental health conditions — 10 — (Guidelines), which it describes as a “set of objective and evidence-based behavioral health — 11 — criteria used by medical necessity plans to standardize coverage determinations.” AR_000278. — 12 — The Guidelines’ common admission criteria for all levels of care require that: — 13 — The member’s condition and proposed service(s) are covered by the benefit plan. — 14 — AND . . . The member’s current condition cannot be safely, efficiently, and effectively — 15 — assessed and/or treated in a less intensive level of care. . . . AND The member’s current condition can be safely, efficiently, and effectively assessed — 16 — and/or treated in the proposed level of care. Assessment and/or treatment of the factors leading to admission require the intensity of services provided in the — 17 — proposed level of care. . . . — 18 — AR_000279; AR_000293. — 19 — The Guidelines define a residential treatment center as: “A sub-acute facility-based — 20 — program which delivers 24-hour/7-day assessment and diagnostic services, and active behavioral — 21 — health treatment to members who do not require the intensity of nursing care, medical — 22 — monitoring and physician availability offered in Inpatient.” AR_000286; AR_000300. The — 23 — Guidelines’ residential treatment center admission criteria require first that the member satisfy — 24 — 1 the common admission criteria. AR_000287; AR_000301. The Guidelines’ second and third 2 criteria require that: 3 The member is not in imminent or current risk of harm to self, others, and/or property. AND 4 The factors leading to admission cannot be safely, efficiently, or effectively assessed and/or treated in a less intensive setting due to acute changes in the 5 member’s signs and symptoms and/or psychosocial and environmental factors. — 6 — Id. 7 C. H.-W.’s Medical History 8 The AR reflects H.-W.’s history of behavioral problems, mental health diagnoses, and 9 treatment efforts. In 2011, when she was around 10 years old, H.-W. was diagnosed with bipolar 10 disorder, generalized anxiety disorder, and oppositional defiance disorder. AR_001463; 11 AR_001558; AR_001600. She was prescribed medications to stabilize her mood, including 12 Lithium, Tegretol, Seroquel, and Focalin. AR_001464; AR_001558; AR_001734. In February 13 2013, H.-W. called the police, believing her mother was poisoning her with her medications. 14 AR_001464. H.-W. was transported to the hospital, but she returned home because there were 15 no available beds in the inpatient psychiatric unit. Id. Later that year, H.-W. shared for the first 16 time suicidal ideas with her mother, such as “jumping off a roof.” AR_001464; AR_001559. In 17 July 2013, after becoming increasingly argumentative and “having destructive tantrums” in her 18 house, she was admitted to the inpatient psychiatric unit at Seattle Children’s Hospital for eight 19 days. AR_001464. 20 Between the summer of 2013 and summer of 2016, H.-W.’s condition improved, before 21 worsening again in the fall of 2016. See AR_001465. In December 2016, H.-W. began cutting 22 herself superficially with scissors. AR_001465; AR_001560; AR_001642; AR_007773–75. 23 Around this period, she prepared a “suicide kit,” containing a mixture of Adderall, Tylenol, and 24 alcohol. AR_001465; AR_007776–78. 1 On April 20, 2017, H.-W. was admitted to the University of Utah Neuropsychiatric 2 Institute (UNI), an inpatient psychiatric hospital. AR_001602. She remained at UNI for three 3 months. AR_001442. During her stay, H.-W. “did not engage in any self harm, aggression or 4 treatment refusal.” AR_001442–43. While there, H.-W. was diagnosed with Autism Spectrum 5 Disorder. AR_001442. Upon her discharge, the UNI treatment team “strongly recommend[ed] a 6 long-term residential treatment placement,” advising that if she “returns home, resumes 7 outpatient treatment, and attends a regular public high school, she [would be] at high risk of 8 becoming a danger to herself and reverting to a state of emotional, social, and academic 9 dysfunction.” AR_001602. UNI recommended residential treatment for H.-W. to “receive 10 medication management, family therapy, and individual therapy.” AR_001655. But when H.- 11 W. was discharged, she was less argumentative and had no self-harm or suicidal ideations. 12 AR_001423; AR_001657. Her doctors stated, “At the time of discharge, [H.-W.] did not 13 represent an acute or imminent danger to herself or others and, as such, was appropriate for 14 discharge . . . .” AR_001657. According to the discharge summary, H.-W. was being sent “to 15 Pacific Quest wilderness program until an opening [became] available at Maple Lake.” 16 AR_001655. 17 D. H.-W.’s Treatment at Pacific Quest (June 28, 2017 to August 31, 20172) 18 Pacific Quest’s promotional brochure states that during a typical stay, students may take 19 academic courses and engage in “practical life skills,” such as “meal planning, cooking, and self20 care.” AR_001756. During her stay, H.-W. engaged in yoga, strength training, hiking, and — 21 — — 22 — 2 The AR contains minor inconsistencies about the dates H.-W. left Pacific Quest and arrived at Maple Lake. PHP’s denial notice states that she stayed at Pacific Quest until August 31, 2017. AR_001455. Yet Plaintiffs’ first Maple Lake appeal states that H.-W. was discharged from Pacific Quest — 23 — on August 29 and did not arrive at Maple Lake until August 31 due to travel between the facilities. AR_001561. PHP’s Maple Lake notices say that she arrived at Maple Lake either August 30 or August 24 31, 2017. AR_001401; AR_006977. These minor inconsistencies do not affect the analysis herein. 1 swimming. AR_001441. H.-W. participated in “different projects in camp,” including 2 maintaining a gecko habitat, “making items with duct tape,” and “rebuilding rock walls.” 3 AR_001443. H.-W. attended classes, such as Hawaiian Culture and Environmental Literacy, for 4 which she received an academic transcript. AR_008240. 5 Around early 2018, Plaintiffs submitted to PHP a claim for reimbursement. Pacific Quest 6 had billed Plaintiffs for residential treatment. AR 8218–22. In March 2018, Plaintiffs sent to 7 PHP the medical records from H.-W.’s stay at Pacific Quest, per PHP’s request. AR_001421; 8 AR_008217. The Pacific Quest records did not include individual therapy notes, group therapy 9 notes, or physician notes, see AR_001421–46, AR_008217–48, despite Pacific Quest’s brochure 10 stating that participants receive two individual therapy sessions per week, AR_001753. Pacific 11 Quest’s discharge summary describes H.-W.’s “therapeutic process” for each week of her stay, 12 chronicling more of her activities. AR_001443–45. For example, it says that H.-W. “harvested 13 fruit in camp” and “led a landwork project to chop down a banana tree and expressed feeling 14 ‘proud’ of herself.” AR_001444. On another occasion, H.-W. “was given a large role in camp 15 regarding meal preparation,” and she said that “cooking was helpful for her self-regulation.” Id. 16 The discharge summary lists H.-W.’s main concerns as “anxiety, apparent manipulative use of 17 self-harm talk and gestures, continued emotional instability, fragile self-concept, . . . mood 18 swings, [and] poor social skills.” AR_001445. H.-W.’s completed treatment goals included 19 increasing distress tolerance and decreasing suicidal ideation. AR_001443. Future treatment 20 goals were “developing healthy coping skills and increase emotional awareness control” and 21 “improve social skills.” Id. 22 On April 13, 2018, PHP denied coverage for lack of prior authorization. AR_007010–13; 23 AR_008167. — 24 — 1 1. First appeal On September 23, 2018, Plaintiffs submitted a “first level appeal,” asserting that they — 2 — should have been charged only the $300 fee for not obtaining prior authorization, and that the — 3 — treatment was medically necessary. AR_001408. On October 15, 2018, Dr. Saul Helfing, a — 4 — physician certified in psychiatry, reviewed H.-W.’s appeal and the Pacific Quest records. — 5 — AR_001396–97. Dr. Helfing commented how Pacific Quest’s “admission note did not report — 6 — any acute need for 24 hour care.” AR_001396. Dr. Helfing expressed: — 7 — The leading diagnosis for admission to residential treatment was Generalized — 8 — Anxiety Disorder which was characterized by the patient’s reluctance to . . . leave the home and go to school. . . . The discharge summary indicated that the — 9 — residential program at [Pacific Quest] focused on outdoor activities and socialization. There was little indication that there was weekly medical follow up. — 10 — No therapy or physician notes were included for review. The program appeared to be an outdoor school more so than an actual residential program. . . . Care — 11 — could have been provided closer to home in the Seattle area with a partial hospital program, individual and family therapies and community sponsors. — 12 — Id. Dr. Helfing recommended denial of coverage. Id. On October 25, 2018, PHP denied — 13 — Plaintiffs’ first appeal: — 14 — The clinical information provided did not provide evidence that you required 24 — 15 — hour monitoring of your medical and or psychiatric treatment. Specifically[,] there is no evidence that you were acutely suicidal, with intent or plan, homicidal, acutely — 16 — psychotic or gravely disabled and a secure therapeutic setting to assure safety was not required. Your care could have safely been provided in a less restrictive setting, 17 such as at the partial hospitalization level of care.3 — 18 — AR_001454–55. — 19 — 2. Second appeal 20 About six months later, on April 22, 2019, Plaintiffs submitted a second appeal, titled as 21 a “level one member appeal” appeal. AR_006981; AR_007979. The Plan mandates filing a first — 22 — 23 3 Compared to residential treatment, less intensive levels of care include the “Partial Hospitalization Program,” offering 20 hours per week of non-residential treatment, and “Intensive 24 Outpatient” services, offering six to nine hours per week of non-residential treatment. AR_000282–96. 1 level appeal within 180 days of the initial adverse benefit determination. AR_000209. If 2 unsatisfied with the first level appeal decision, a second level appeal must be filed within 60 days 3 of that decision. AR_000208. Failure to meet this deadline renders the first level appeal 4 decision final. Id. In their second appeal, Plaintiffs stated that PHP’s notice denying their first 5 appeal “included a new denial reason (medical necessity).” AR_006981. Plaintiffs’ second 6 appeal also chronicled more of H.-W.’s past mental health struggles and attached articles about 7 the benefits of wilderness therapy. AR_006986–89; AR_7018–7743. On April 24, 2019, PHP 8 informed Plaintiffs that their second appeal, which PHP construed as a second level appeal, was 9 untimely. AR_007979. PHP offered Plaintiffs 30 days to submit an explanation for why they 10 did not appeal within the appropriate timeframe. Id. Plaintiffs said that because PHP’s initial 11 denial was for lack of prior authorization rather than lack of medical necessity, Plaintiffs had 180 12 days to appeal. AR_001480. On June 3, 2019, PHP upheld its denial of Plaintiffs’ first appeal 13 and its denial of benefits. AR_001515. PHP’s denial was final. Id. 14 E. H.-W.’s Treatment at Maple Lake (August 31, 2017 to April 30, 2018) 15 H.-W. stayed at Maple Lake for eight months. AR_001394; AR_001401. In general, the 16 Maple Lake records show: H.-W. entered Maple Lake because of her Autism Spectrum Disorder 17 diagnosis and her “mood fluctuations and anxiety.” AR_001172. When H.-W. arrived at Maple 18 Lake, she was not reporting any psychosis, obsessions, or compulsions. AR_001363. Her most 19 recent self-harm incident had been around October or November 2016, almost a year before her 20 arrival at Maple Lake. AR_001364. While at Maple Lake, she presented no risk of harm to 21 herself or others. Id.; AR_000396; AR_001186; AR_001385. H.-W. participated in individual 22 therapy sessions less than once a week and group therapy sessions about twice a week. See 23 generally AR_000310–AR_001387. Therapy sessions were often canceled when H.-W. was on 24 a “pass,” meaning she received approval to leave campus, such as for spring break, holiday 1 break, a camping trip, a snowmobile trip, and for H.-W.’s participation at a martial arts 2 competition. See, e.g., AR_000310; AR_000318; AR_000580; AR_000821; AR_000845; 3 AR_000985; AR_001305; AR_001390. Out of the around 1,000 pages of records, most describe 4 H.-W.’s academic schooling, of which she received report cards for various terms. See 5 AR_000310–AR_001387. H.-W. took Biology, Math, Drama, English, and Robotics, among 6 other courses. AR_000422; AR_000725. Outside of class, she went camping, horseback riding, 7 watched movies, and completed chores. See, e.g., AR_000383; AR_000406; AR_001257; 8 AR_001294; AR_001390. 9 After H.-W. left Maple Lake, Plaintiffs submitted a claim for reimbursement to PHP. 10 AR_001401. PHP’s initial reviewer, Ms. Erica Degonia, noted that Maple Lake was a 11 therapeutic boarding school and that during H.-W.’s stay, she never expressed any suicidal 12 ideations, did not exhibit aggressive behaviors, and did not engage in any self-harm. 13 AR_001390. Ms. Degonia also highlighted how the Maple Lake records showed that H.-W. 14 “appeared to be in a good mood on some days,” such that she often spent time away from Maple 15 Lake. Id. Ms. Degonia concluded that H.-W. could have been safely treated at an intensive 16 outpatient facility in the Seattle area rather than receive care at an out-of-state facility, but she 17 asked for a Medical Director to review the claim. Id. 18 Dr. Kaizad Munshi, a physician certified in psychiatry, neurology psychiatry, and child 19 and adolescent psychiatry, reviewed Plaintiffs’ claim. AR_001390–94; AR_001402. Dr. 20 Munshi observed that the care H.-W. received at Maple Lake focused on her “behavioral 21 outbursts,” “oppositional-defiance,” and “behavioral dysregulation.” AR_001393. But H.-W. 22 exhibited no suicidal ideation or psychosis, she presented no imminent safety concern, and the 23 Maple Lake treatment “was long term and not designed to address acute issues.” Id. Thus, Dr. 24 Munshi opined that the medical records did not “support the intensity of treatment expected in a 1 residential treatment program,” and that H.-W. did not “need the 24 hour monitoring provided in 2 a residential setting.” Id. Dr. Munshi found that based on the residential treatment Guidelines, 3 H.-W.’s care at Maple Lake was not medically necessary because she could have received 4 appropriate care through intensive outpatient services, a level of care that does not provide 5 around-the-clock monitoring. Id. The same day, PHP denied coverage: 6 Your child was admitted for intensive treatment of her behavioral dysregulation from 08/31/2017 through 04/30/2018. Her behavior was in better control for the 7 dates of service in question. Her symptoms were long-standing and not acute. She did not need the 24 hour monitoring provided in a residential setting. Based on our 8 Level of Care Guidelines for the Mental Health Residential Treatment Services Level of Care, it is my determination that no authorization can be provided . . . for 9 215 days at Maple Lake Academy. 10 AR_001401. 11 1. First appeal On January 27, 2019, Plaintiffs submitted their first level appeal. AR_006928–74. They — 12 — argued that Dr. Munshi erred in focusing on the acuity of H.-W.’s symptoms, rather than her — 13 — chronic symptoms, and that prior providers recommended that H.-W. receive residential — 14 — treatment. AR_006930. Dr. Thomas Hamlin reviewed Plaintiffs’ appeal and concluded that H.- — 15 — W.’s care at Maple Lake did not meet the Guidelines because: — 16 — [H.-W.] did not require the medical supervision of the residential treatment level of — 17 — care. She was intermittently oppositional[,] but she was not aggressive or violent. . . . She was rigid but she was able to cooperate [to] express her feelings. The — 18 — member took her medications as prescribed. The member attended all therapies[,] at times reluctantly. The member appears to [have] been treated at [a] therapeutic — 19 — boarding school. She did not appear to require the restriction of the residential treatment level of care. She could [have] been treated at the mental health partial — 20 — hospital level of care. — 21 — AR_006975–76. On March 13, 2019, PHP upheld its denial: — 22 — The clinical information provided did not provide evidence that your daughter required 24 hour monitoring for her medical and or psychiatric treatment. — 23 — Specifically[,] there is no evidence that she was acutely suicidal, with intent or — 24 — 1 plan, homicidal, acutely psychotic or gravely disabled and a secure therapeutic setting to assure safety was not required. — 2 — Your daughter[’]s care could have safely been provided in a less restrictive 3 setting, such as at the intensive outpatient level of care. Therefore, we are unable to comply with your request to approve residential mental health treatment at 4 Maple Lake Academy [from] August 31, 2017 through April 30, 2018 as the criteria for coverage of this level of care were not met. — 5 — AR_006977–78. — 6 — 2. IRO review — 7 — Plaintiffs requested an external review by an independent review organization (IRO), — 8 — articulating the same reasons for why they felt PHP wrongfully denied H.-W.’s claim. — 9 — AR_008043–45. PHP sent Plaintiffs’ request to an IRO, including H.-W.’s entire claim file. — 10 — AR_001534–36. The IRO upheld the denial, concluding that H.-W.’s stay at Maple Lake was — 11 — not medically necessary. AR_008141–44. The IRO stated that while H.-W. had a “history of — 12 — psychiatric treatment in the past” and “a history of acute inpatient psychiatric hospitalizations in — 13 — the past,” at the time of her admission to Maple Lake, “she had no significant ongoing symptoms — 14 — that required residential treatment.” AR_008142. The IRO continued: “Treatment at a — 15 — residential level of care with a 24-hour structured setting is required when there are significant — 16 — safety concerns that require daily monitoring, significant functional impairments related to — 17 — behavioral symptoms including impairments in self-care and activities of daily living, or — 18 — significant substance use affecting daily functioning[.]” Id. But the IRO noted that H.-W. — 19 — presented no symptoms that required 24-hour monitoring. Id. She did not have symptoms — 20 — suggestive of psychosis, nor did she have any symptoms of mania. Id. The IRO concluded that — 21 — H.-W. could “have been managed safely in a less restrictive setting and lower level of care.” Id. — 22 — On June 26, 2020, Plaintiffs filed their complaint in the District of Utah. Dkt. # 2. On — 23 — October 1, 2021, the case was transferred to this district. Dkt. # 26. — 24 — 1 III DISCUSSION — 2 — A. ERISA Claim to Recover Benefits — 3 — 1. Legal standard — 4 — Under ERISA, a qualifying plan “participant” may bring a civil action in federal district — 5 — court “to recover benefits due to [them] under the terms of [their] plan, to enforce [their] rights — 6 — under the terms of the plan, or to clarify [their] rights to future benefits under the terms of the — 7 — plan.” 29 U.S.C. § 1132 (a)(1)(B). The parties do not dispute that H.-W. is a participant under a — 8 — qualifying plan. — 9 — 2. Standard of review 10 The Court must decide whether to review the benefits denials de novo or for abuse of 11 discretion. De novo is the default standard of review. Abatie v. Alta Health & Life Ins. Co., 458 12 F.3d 955, 963 (9th Cir. 2006). But “[w]here an ERISA Plan grants discretionary authority to 13 determine eligibility for benefits or to construe the terms of the plan, a plan administrator’s 14 interpretation of a plan is reviewed for abuse of discretion.” O’Rourke v. N. Cal. Elec. Workers 15 Pension Plan, 934 F.3d 993, 998 (9th Cir. 2019) (quoting Lehman v. Nelson, 862 F.3d 1203 , 16 1216 (9th Cir. 2017)). 17 Defendants say that abuse of discretion applies because of the Plan’s language conferring 18 discretionary authority to both Swedish and PHP. Dkt. # 44 at 20–22. The Court agrees. The 19 Plan unambiguously delegates discretion to Swedish, its plan administrator, “to determine 20 eligibility for benefits and to construe the terms of the Plan.” AR_000014. In turn, Swedish 21 delegated discretion to PHP, its claims administrator, to decide eligibility for benefits: “As 22 Claims Administrators for the Plans described above, these entities—subject to Swedish Health 23 Services’ authority as Plan Administrator—have discretionary authority to interpret plan — 24 — 1 provisions, to decide questions of eligibility for coverage or benefits under the Plan, to adjudicate 2 claims, and to decide any appeals of denied claims.” AR_000227. 3 Even when an ERISA plan’s language confers discretionary authority to the plan 4 administrator, review is de novo if the plan administrator “engages in wholesale and flagrant 5 violations of the procedural requirements of ERISA.” Abatie, 458 F.3d at 971. Most procedural 6 errors do not alter the standard of review. Id. at 972. Plaintiffs agree that such severe procedural 7 violations are not present here. See Dkt. # 51 at 38 (“Plaintiffs do not maintain that this case 8 meets the rare circumstances where the Abatie test calls for a de novo review.”). At oral 9 argument, Plaintiffs seemed to concede that abuse of discretion is the proper standard of review. 10 Further, as the Plan is self-funded, it is not subject to Washington insurance regulations that may — 11 — alter the standard of review.4 Because this case does not “fall into that rare class of cases” that 12 mandate de novo review based on procedural ERISA violations, the Court reviews Defendants’ 13 benefits denials for an abuse of discretion. Abatie, 458 F.3d at 972. 14 3. Abuse of discretion review Under an abuse of discretion review of an ERISA benefits denial, “a motion for summary — 15 — judgment is merely the conduit to bring the legal question before the district court and the usual — 16 — — 17 — 4 On October 17, 2022, the Court ordered the parties to submit supplemental briefing on whether 18 Washington Administrative Code (WAC) 284-44-015 mandates de novo review. See Dkt. # 61. In the Washington health care services context, “[n]o contract may contain a discretionary clause.” WAC 28419 44-015. A “discretionary clause” is one that results in “the standard of review of a carrier’s interpretation of the contract or claim decision [being] other than a de novo review.” Id. Because the Plan is an 20 employer self-funded health plan, rather than an insurance contract, it is not subject to the insurance regulation. See FMC Corp. v. Holliday, 498 U.S. 52, 54 (1990). And ERISA appears to preempt WAC 21 284-44-015 from applying to self-funded ERISA plans. See FMC Corp., 498 U.S. at 61 (“We read [ERISA’s] deemer clause to exempt self-funded ERISA plans from state laws that ‘regulat[e] insurance’ 22 within the meaning of [ERISA’s] saving clause.”); Williby v. Aetna Life Ins. Co., 867 F.3d 1129 , 1135–36 (9th Cir. 2017) (“[I]f the state law is applied to an ERISA plan itself, which is how such laws operate on 23 self-funded plans, the law falls within the deemer clause and thus is preempted . . . .”). Plaintiffs agree. See Dkt. # 63 at 2 (“Because the Plan in this case is self-funded, Williby would seem initially to stand for the proposition that ERISA preempts WAC 284-44-015 from applying to the Plan.”). — 24 — 1 tests of summary judgment, such as whether a genuine dispute of material fact exists, do not 2 apply.” Harlick v. Blue Shield of Cal., 686 F.3d 699, 706 (9th Cir. 2012) (quoting Nolan v. 3 Heald Coll., 551 F.3d 1148, 1153 (9th Cir. 2009)). In deciding whether a plan administrator 4 abused its discretion, the Court asks whether it is “left with a definite and firm conviction that a 5 mistake has been committed.” Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666 , 676 6 (9th Cir. 2011) (quoting United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009)). “An 7 ERISA administrator abuses its discretion only if it (1) renders a decision without explanation, 8 (2) construes provisions of the plan in a way that conflicts with the plain language of the plan, or 9 (3) relies on clearly erroneous findings of fact.” Boyd v. Bert Bell/Pete Rozelle NFL Players Ret. 10 Plan, 410 F.3d 1173, 1178 (9th Cir. 2005) (internal citation omitted). “Applying a deferential 11 standard of review does not mean that the plan administrator will prevail on the merits. It means 12 only that the plan administrator’s interpretation of the plan ‘will not be disturbed if reasonable.’” 13 Conkright v. Frommert, 559 U.S. 506, 521 (2010) (quoting Firestone Tire & Rubber Co. v. 14 Bruch, 489 U.S. 101, 111 (1989)). This reasonableness standard requires deference to the plan 15 administrator’s benefits decision unless it is “(1) illogical, (2) implausible, or (3) without support 16 in inferences that may be drawn from the facts in the record.” Salomaa, 642 F.3d at 676 17 (internal citation omitted). The Court also weighs any “procedural irregularities” in deciding 18 whether an administrator’s benefits denial was an abuse of discretion. Abatie, 458 F.3d at 972. 19 Plaintiffs say that Defendants abused their discretion by violating ERISA’s procedural 20 requirements and erroneously applying the Guidelines for admission to a residential treatment 21 center. The Court “may review only the [AR] when considering whether the plan administrator 22 abused its discretion.” Id. at 970. Having considered the AR, the Court concludes Defendants’ 23 denials of benefits were reasonable and not an abuse of discretion. — 24 — 1 a. Alleged procedural violations 2 ERISA plans must maintain a procedure for claimants to appeal an adverse benefit 3 determination and “under which there will be a full and fair review of the claim and the adverse 4 benefit determination.” 29 C.F.R. § 2560.503-1 (h)(1). “The Ninth Circuit does not require strict 5 compliance with ERISA’s procedural requirements.” Finkelstein v. Guardian Life Ins. Co. of 6 Am., No. C 07-01130 CRB, 2008 WL 8634992 , at *4 (N.D. Cal. Nov. 23, 2008). Rather, 7 “substantial compliance with these requirements is sufficient.” Chuck v. Hewlett Packard Co., — 8 — 455 F.3d 1026, 1032 (9th Cir. 2006). Plaintiffs say Defendants committed certain “severe” 9 procedural violations, which render each denial of benefits an abuse of discretion. Dkt. # 51 at 10 37–38. 11 i. PHP’s review of Plaintiffs’ appeals 12 ERISA requires plan administrators to “take[] into account all comments, documents, 13 records, and other information submitted by the claimant relating to the claim.” 29 C.F.R. § 14 2560.503-1(h)(2)(iv). Plaintiffs say Defendants violated this requirement in three ways.5 15 First, Plaintiffs challenge the wording of Defendants’ “boilerplate” denial notices, which 16 include statements like “[h]er symptoms were long-standing and not acute,” AR_001401, in — 17 — 5 Plaintiffs do cite two other ERISA procedures they say Defendants violated. Dkt. # 51 at 37. 18 But they do not offer argument related to either procedure. First, plan administrators must provide a claimant “upon request and free of charge, reasonable access to, and copies of, all documents, records, 19 and other information relevant to the claimant’s claim for benefits.” 29 C.F.R. § 2560.503-1 (h)(2)(iii). Plaintiffs fail to identify an instance when they asked PHP to provide access to such information and PHP 20 denied their request. Second, “in deciding an appeal of any adverse benefit determination that is based in whole or in part on a medical judgment,” plan administrators must “consult with a health care 21 professional who has appropriate training and experience in the field of medicine involved in the medical judgment.” Id. § 2560.503-1(h)(3)(iii). Plaintiffs do not show how the health care professionals who 22 reviewed H.-W.’s claims had inadequate training or experience. For example, one of the physician reviewers, Dr. Munshi, was certified in psychiatry, neurology psychiatry, and child and adolescent psychiatry. AR_001390–94; AR_001402. PHP also informed Plaintiffs about the medical qualifications — 23 — of its reviewers. See, e.g., AR_006977 (claim reviewed by an “MD Board Certified in Family Medicine” and a physician “Board Certified in Psychiatry”). The Court thus concludes that Defendants violated 24 neither ERISA procedure. 1 arguing that PHP refused to “meaningfully engage with [H.-W.]’s medical history.” Dkt. # 51 at 2 37. The Court reads the denial notices differently. For example, the Guidelines require acute 3 symptoms to warrant admission for residential treatment. See AR_000287 (“The factors leading 4 to admission cannot be safely . . . treated in a less intensive setting due to acute changes in the 5 member’s signs and symptoms . . . .”). PHP stating that H.-W.’s symptoms were not acute helps 6 explain why her Maple Lake stay was not covered. Plaintiffs suggest that Defendants erred in 7 not sufficiently focusing on the medical records they submitted from when H.-W.’s mental 8 health struggles began. Dkt. # 51 at 37-38. The Plan does not mandate such an emphasis on 9 older medical records, and neither does ERISA. Instead, the admission criteria for residential 10 treatment include whether the “service[] will improve the member’s presenting problems,” 11 AR_000279, and that “[t]he factors leading to admission cannot be safely . . . treated in a less 12 intensive setting.” AR_000287. Thus, Defendants reasonably focused on H.-W.’s presenting 13 problems to determine eligibility for benefits. See, e.g., AR_001390 (PHP’s internal review note 14 focusing on H.-W.’s recent and current medical issues). 15 Second, Plaintiffs say that Defendants should have “explain[ed] if Plaintiffs needed to 16 submit additional documentation, or to tell them whether [H.-W.] needed to display additional 17 symptoms for residential treatment to be warranted.” Id. at 38. But Plaintiffs cite no legal 18 authority to support this argument. 19 Third, Plaintiffs contend Defendants ignored the recommendations of H.-W.’s prior 20 providers, “several of whom unambiguously recommended that [H.-W.] needed further inpatient 21 treatment.” Dkt. # 51 at 38. But as mentioned above, under the terms of the Plan, PHP was not 22 bound to follow recommendations from prior providers in deciding whether H.-W.’s stays at 23 Pacific Quest or Maple Lake were medically necessary. See AR_000122 (“The fact that a 24 service or supply is . . . recommended by a physician or other provider does not, of itself, make it 1 medically necessary.”). Plaintiffs also misrepresent portions of the AR. For example, Plaintiffs 2 cite the opinions of Dr. Elizabeth Botts, one of H.-W.’s physicians at UNI, as a provider who 3 “unambiguously” recommended that H.-W. needed inpatient treatment upon discharge from 4 UNI. Dkt. # 51 at 38. But Dr. Botts did not unequivocally recommend around-the-clock 5 residential treatment. In one section, Dr. Botts noted how the UNI treatment team recommended 6 care at a “[residential treatment center] where [H.-W.] can receive medication management, 7 family therapy, and individual therapy.” AR_001655. Yet in a different section of her discharge 8 summary, Dr. Botts suggested a “structure[d] therapeutic boarding school environment” for H.- 9 W.’s care. AR_001658. The Plan excludes from coverage therapeutic boarding schools. 10 AR_000071–73. 11 ii. Timeliness of second Pacific Quest appeal 12 Plaintiffs ask the Court to find that their second Pacific Quest appeal was timely. Dkt. # 13 51 at 38–40; Dkt. # 55 at 11–14. Because Plaintiffs cite an ERISA procedure, see Dkt. # 55 at 14 11, the Court construes Plaintiffs’ request as an argument that Defendants violated an ERISA 15 procedure by deciding that Plaintiffs’ second appeal was untimely. Under the procedure 16 Plaintiffs cite, when benefits are denied, plan administrators must provide claimants with the 17 “specific reason or reasons.” 29 C.F.R. § 2560.503-1 (g)(1)(i). PHP first denied Plaintiffs’ 18 Pacific Quest claim for lack of prior authorization. AR_007010–13; AR_008167. PHP later 19 upheld its initial denial, basing their decision on lack of medical necessity. AR_001454. Each 20 notice included the specific reason supporting the denial, as required by ERISA. 21 Because Plaintiffs interpreted this later decision as a new reason for denying benefits, 22 they apparently believed they had 180 days to file a second “first level” appeal. AR_001480. 23 Plaintiffs submitted their second appeal within 179 days. AR_001456. Even if the reasons — 24 — — 1 — supporting the initial denial and the first appeal were different,6 the Plan does not state that the 2 clock automatically restarts under those circumstances. Under the Plan’s language, if a member 3 is “not satisfied with the decision” from the first level appeal, they “may request a voluntary 4 second-level internal appeal.” AR_000208. Further, it says, “You must submit your written 5 request for the voluntary second level internal appeal within 60 days of the date of the internal 6 grievance or appeal decision notice, or that initial decision will become final.” Id. Because 7 Plaintiffs submitted their second appeal outside the 60-day window, their second appeal was 8 untimely. 9 Thus, Defendants’ review of H.-W.’s claims and their denial of Plaintiffs’ second Pacific 10 Quest appeal for timeliness were not abuses of discretion. 11 b. Application of the Guidelines 12 Plaintiffs say Defendants abused their discretion by misapplying the Guidelines for 13 admission to residential treatment. Dkt. # 51 at 40. The Guidelines list three criteria that must 14 be met. See AR_000286–87. The parties dispute whether H.-W. satisfied the second and third. 15 For admission to a residential treatment center, the second criterion requires that “the 16 member is not in imminent or current risk of harm to self, others, and/or property.” AR_000287. 17 Plaintiffs argue that H.-W. satisfied this criterion for both admission to Pacific Quest and Maple 18 Lake, see Dkt. # 51 at 46, and the Court agrees. Directly before her arrival to Pacific Quest, H.- 19 W.’s doctors at UNI stated that she “did not represent an acute or imminent danger to herself or 20 others.” AR_001657. The AR supports their assessment. H.-W.’s most recent self-harm — 21 — — 22 — 6 But the Court does not construe lack of prior authorization and lack of medical necessity to be independent denial reasons. Under the Plan, denial for lack of prior authorization includes the lack of — 23 — medical necessity. See AR_000041. If a service is verified as medically necessary but there was no prior authorization, the Plan’s terms do not require a denial of coverage—the Plan covers the service and 24 charges a $300 penalty. Id. 1 incident was around October or November 2016, over six months before her arrival at Pacific 2 Quest. AR_001364. And during her care at Pacific Quest, she similarly did not harm herself, 3 others, or any property, which supports H.-W. meeting this criterion for her subsequent 4 admission to Maple Lake. See generally AR_001422–001531. Plaintiffs point out that, in 5 connection with the denials of the first appeals for Pacific Quest and Maple Lake, PHP’s notices 6 state: “there is no evidence that you were acutely suicidal, with intent or plan, homicidal, acutely 7 psychotic or gravely disabled.” AR_001454; AR_006977. It appears that PHP misinterpreted the 8 criterion as requiring that the member be in imminent or current risk of harm to self, others, or 9 property. 10 Notwithstanding the foregoing, all of the Guidelines’ criteria must be met for the Plan to 11 cover admission to a residential treatment. Although she met this second criterion for lack of 12 “risk of harm to self, others, and/or property,” H.-W. did not satisfy the third. AR_000287. 13 For admission to residential treatment, the third criterion requires that: “[t]he factors 14 leading to admission cannot be safely, efficiently, or effectively assessed and/or treated in a less 15 intensive setting due to acute changes in the member’s signs and symptoms.” AR_000287. The 16 second and third criteria work together in mandating the proper severity of symptoms. Under the 17 second criterion, residential treatment is not appropriate where the member’s condition is so 18 severe—based on risk of harm to self, others, or property—that they cannot be safely treated at a 19 residential treatment center. And under the third criterion, residential treatment is also not 20 appropriate if the member may be treated in a less intensive setting because her condition does 21 not require the around-the-clock monitoring provided in residential treatment. The AR supports 22 denying benefits for both Pacific Quest and Maple Lake based on this criterion because H.-W. 23 could have been safely or effectively treated at a less intensive level of care. Defendants’ denials 24 based on the third criterion were not an abuse of discretion. 1 Beginning with Pacific Quest, PHP denied Plaintiffs’ claim, in part, because H.-W. did 2 not meet the third criterion: “[t]he clinical information provided did not provide evidence that 3 [H.-W.] required 24 hour monitoring of your medical and or psychiatric treatment” and her “care 4 could have safely been provided in a less restrictive setting.” AR_001454. Plaintiffs contend 5 that H.-W. could not have received treatment at a less intensive setting than Pacific Quest 6 because H.-W. “was transitioning from an acute inpatient hospitalization where she had self7 harmed [and] threatened suicide.” Dkt. # 51 at 41. The AR appears to reflect otherwise: During 8 H.-W.’s treatment at UNI, she “did not engage in any self harm” and when she was discharged, 9 she had no self-harm or suicidal ideations. AR_001442–23; AR_001657. Similarly, before her 10 discharge, H.-W. did “not endorse or demonstrate any acute signs/symptoms of acute mania or 11 psychosis” and her UNI doctors determined that H.-W. “had improved sufficiently to allow 12 transition to a less restrictive level of care.” AR_001657. 13 The AR supports PHP’s determination that H.-W. did not require 24-hour monitoring for 14 her medical treatment at Pacific Quest. Dr. Helfing, the physician who reviewed Plaintiffs’ first 15 appeal, correctly identified how Pacific Quest’s admission note “did not report any acute need 16 for 24 hour care.” AR_001396. See AR_001423–31. At Pacific Quest, H.-W. participated in 17 various recreational activities and attended classes, all without issue. See, e.g., AR_001441; 18 AR_008240. Pacific Quest’s discharge summary identified H.-W.’s main concerns as anxiety, 19 emotional instability, mood swings, and poor social skills. AR_001445. The Pacific Quest 20 records included no individual therapy notes, group therapy notes, or physician notes. See 21 AR_001421-46, AR_008217-48. This supports a finding that H.-W. did not require 24-hour 22 monitoring at Pacific Quest. Dr. Helfing agreed: “The program appeared to be an outdoor school 23 more so than an actual residential program.” AR_001396. The Plan excludes from coverage 24 these outdoor programs. AR_000071. 1 For Maple Lake, PHP also denied Plaintiffs’ claim because H.-W. did not meet the third 2 criterion: her “symptoms were long-standing and not acute,” and “[s]he did not need the 24 hour 3 monitoring provided in a residential setting.” AR_001401. Plaintiffs dispute this conclusion 4 because they say H.-W. “was not compliant with her treatment at Maple Lake until she had time 5 to adjust” and she had a physical altercation with Maple Lake staff. Dkt. # 51 at 42–43. In 6 support of their argument that H.-W. was not compliant with treatment, Plaintiffs point to H.- 7 W.’s behavior during her first two weeks at Maple Lake. Id. at 43 , 26–27. She tried to prevent 8 her mother from dropping her off, she did not at first follow the facility’s rules, and she slept 9 during class, among other behavioral issues. See, e.g., AR_001381; AR_001376; AR_001335. 10 As to this altercation, the record shows that H.-W. asked a Maple Lake staff member not to touch 11 her belongings; the staff member responded that H.-W had to “go through her stuff with staff.” 12 AR_001249. When H.-W. refused to yield, the staff member “counted to three and then grabbed 13 her right arm and put it into a gooseneck control.” Id. The Court is unpersuaded that this 14 incident along with certain initial behavioral issues supported H.-W.’s claim that she needed 15 around-the-clock residential treatment. 16 The AR does not show that H.-W. in fact received the 24-hour care required for 17 residential treatment during her stay at Maple Lake. Instead, most of the Maple Lake records 18 describe her academic schooling, chores, and various recreational activities. See generally 19 AR_000310–AR_001387. While at Maple Lake, staff members often described her “positive” 20 demeanor as she engaged in such activities. See, e.g., AR_000392 (H.-W. “smiled and joked 21 around with different members of the community”); AR_001284 (H.-W. “displayed positive 22 affect by talking cheerfully with staff”); AR_001371 (“Student seemed happy as evidenced by 23 her . . . holding pleasant conversations with peers.”). — 24 — 1 In addition, the fact that H.-W. did not receive the level of care expected at a residential 2 treatment center supports PHP’s determination that she could have received treatment at a less 3 intensive setting. See Loran K. v. Blue Cross & Blue Shield of Illinois, No. 19-CV-07694-JSW, — 4 — 2021 WL 4924777 , at *7 (N.D. Cal. June 17, 2021) (explaining that a “therapeutic boarding 5 school” that included “a therapeutic approach with academics” did not provide the “twenty-four6 hour medical monitoring required of a [residential treatment center]”). H.-W. also left Maple 7 Lake many times because of school breaks or other trips, suggesting she did not require the 248 hour care provided in residential treatment. Defendants highlight how various medical reviewers 9 during Plaintiffs’ appeals expressed that H.-W. could have been treated at a less intensive level 10 of care. See AR_001390–96. And despite H.-W.’s history of behavioral problems, none were 11 acute. When she arrived at Maple Lake, her physician reported no psychosis, obsessions, or 12 compulsions. AR_001363. 13 In sum, on this record, the Court cannot say that Defendants’ denials of Plaintiffs’ Pacific 14 Quest and Maple Lake claims were an abuse of discretion. Defendants reasonably determined 15 that H.-W. did not meet the third criterion for admission to a residential treatment center. See 16 Conkright, 559 U.S. at 521 (holding that under an abuse of discretion review, “the plan 17 administrator’s interpretation of the plan will not be disturbed if reasonable”) (internal quotation 18 omitted); see also Salomaa, 642 F.3d at 676 (a plan administrator’s denial of benefits is 19 reasonable unless it is “(1) illogical, (2) implausible, or (3) without support in inferences that 20 may be drawn from the facts in the record”) (internal citation omitted). 21 c. Adequacy of denial notices 22 Plaintiffs contend that Defendants’ denial notices were abuses of discretion because they 23 were issued without explanation. Dkt. # 59 at 12–13. See Boyd, 410 F.3d at 1178 (holding that 24 an “ERISA administrator abuses its discretion [if it] renders a decision without explanation”). 1 Relatedly, Plaintiffs assert that Defendants skirted ERISA’s procedure requiring that if a plan 2 administrator’s denial is based on lack of medical necessity, the notice must include “an 3 explanation of the scientific or clinical judgment for the determination, applying the terms of the 4 plan to the claimant’s medical circumstances.” 29 C.F.R. § 2560.503-1 (g)(1)(v)(B). 5 In the Pacific Quest denial correspondence after Plaintiffs’ first appeal, PHP outlined 6 how it had made its decision, including: (1) that PHP had consulted various physicians who 7 reviewed Plaintiffs’ claim; (2) a review of all clinical information provided by Pacific Quest; and 8 (3) a description of the Guidelines for determining medical necessity. AR_001454. PHP 9 concluded that “[t]he clinical information provided did not provide evidence that [H.-W.] 10 required 24 hour monitoring of [her] medical and or psychiatric treatment.” Id. Further, PHP 11 stated that her “care could have been safely provided in a less restrictive setting, such as at the 12 partial hospitalization level of care.” AR_001454–55. This explanation, while brief, was 13 supported by the AR. 14 PHP’s initial denial for Maple Lake, written by Dr. Munshi, explained: “Her behavior 15 was in better control for the dates of service in question. Her symptoms were long-standing and 16 not acute. She did not need the 24 hour monitoring provided in a residential setting.” 17 AR_001401. The notice properly stated that PHP’s decision was based on the medical necessity 18 Guidelines. Id. PHP’s denial for Plaintiffs’ first Maple Lake appeal resembled the first Pacific 19 Quest appeal denial. See AR_006977–78. The notice walked through the Guidelines for 20 determining medical necessity before concluding that H.-W. did not require 24-hour monitoring 21 and her “care could have been safely provided in a less restrictive setting.” AR_006977–78. 22 These conclusions were also supported by the AR. 23 Defendants provided enough explanation for Plaintiffs to understand the denials. Giving 24 a consistent reason for their denials—lack of medical necessity, based on the Guidelines’ criteria, 1 and that H.-W. could have received care in a less restrictive setting because she did not need 242 hour care—is sufficient. See Mercier v. Boilermakers Apprenticeship & Training Fund, No. 3 CIV.A 07-CV-11307DPW, 2009 WL 458556 , at *17 (D. Mass. Feb. 10, 2009) (“So long as the 4 plan participant is provided a sufficient explanation to formulate further challenges to the denial, 5 it is not necessary for an administrator to provide ‘the reasoning behind the reasons.’”) (quoting 6 Gallo v. Amoco Corp., 102 F.3d 918, 922 (7th Cir. 1996)). PHP also provided proper reference 7 to the plan provisions under which it denied H.-W.’s claims. Each denial notice explained that 8 PHP had conducted a medical necessity review. Plaintiffs could understand, and seem to have 9 understood, that their claims were denied due to lack of medical necessity. Although these 10 explanations could have been more thorough, they were not abuses of discretion as the Court is 11 not “left with a definite and firm conviction that a mistake has been committed.” Salomaa, 642 12 F.3d at 676 . 13 B. Parity Act Claim 14 The parties request judgment in their favor for Plaintiffs’ claim based on Defendants’ 15 alleged Parity Act violation. Dkt. # 51 at 46–49; Dkt. # 57 at 18–26. 16 Section 1132(a)(3) of ERISA provides that a civil action may be brought “to enjoin any 17 act or practice which violates any provision of this subchapter or the terms of the plan, or (B) to 18 obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any 19 provisions of this subchapter or the terms of the plan.” 29 U.S.C. § 1132 (a)(3). The purpose of 20 section 1132(a)(3), a “catchall” provision, is to “act as a safety net, offering appropriate equitable 21 relief for injuries caused by violations that [section 1332] does not elsewhere adequately 22 remedy.” Varity Corp. v. Howe, 516 U.S. 489, 512 (1996). “Because the [Parity Act] is enacted 23 as part of ERISA, it is enforceable through a cause of action under § 1132(a)(3) as a violation of 24 a ‘provision of this subchapter.’” A.F. ex rel. Legaard v. Providence Health Plan, 35 F. Supp. 1 3d 1298, 1304 (D. Or. 2014) (quoting 29 U.S.C. § 1132 (a)(3)). See also Munnelly v. Fordham 2 Univ. Fac., 316 F. Supp. 3d 714, 728 (S.D.N.Y. 2018) (noting that while the Parity Act lacks a 3 private right of action, portions of it are “incorporated into ERISA and may be enforced using 4 the civil enforcement provisions in ERISA”) (internal citation omitted). Because a Parity Act 5 violation involves a substantive ERISA violation instead of a violation of the Plan’s terms, 6 district courts owe no deference to the plan administrator’s interpretation. Kevin D. v. Blue 7 Cross & Blue Shield of S.C., 545 F. Supp. 3d 587 , 613 (M.D. Tenn. 2021). Thus, the Court’s 8 review is de novo, and the plaintiff bears the burden of proof. Stone v. UnitedHealthcare Ins. 9 Co., 979 F.3d 770, 774 (9th Cir. 2020). 10 The Parity Act prohibits an ERISA plan from imposing more restrictive “treatment 11 limitations” for mental health benefits than for medical or surgical benefits. See 29 U.S.C. § 12 1185a(a)(3)(A). Treatment limitations include “both quantitative treatment limitations, which 13 are expressed numerically (such as 50 outpatient visits per year), and nonquantitative treatment 14 limitations, which otherwise limit the scope or duration of benefits for treatment under a plan or 15 coverage.” 29 C.F.R. § 2590.712 (a). Nonquantitative treatment limitations for benefits include 16 “[m]edical management standards limiting or excluding benefits based on medical necessity or 17 medical appropriateness.” 29 C.F.R. § 2590.712 (c)(4)(ii). The limitations Plaintiffs allege in 18 their complaint are nonquantitative. Dkt. # 2 at 14. 19 The Parity Act does not require that mental health treatment benefits are identical to 20 medical and surgical treatment benefits. Rather, for nonquantitative treatment limitations, the 21 Parity Act requires that all “processes, strategies, evidentiary standards, or other factors used in 22 applying” the limitation to mental health benefits must be “comparable to” and “applied no more 23 stringently than” those used in applying the limitation for medical and surgical benefits. 29 24 C.F.R. § 2590.712 (c)(4)(i). The parties agree that skilled nursing facilities and inpatient 1 rehabilitation facilities for medical or surgical care are analogous to residential treatment 2 facilities for mental health care. Dkt. # 51 at 47; Dkt. # 57 at 21. 3 When bringing a claim for a Parity Act violation, a claimant may allege an impermissible 4 limitation based on the plan’s terms, a “facial” challenge, or based on the plan administrator’s 5 application of the plan, an “as applied” challenge. D.T. by & through K.T. v. NECA/IBEW Fam. 6 Med. Care Plan, No. 2:17-CV-00004-RAJ, 2019 WL 6894508 , at *5 (W.D. Wash. Dec. 18, 7 2019). Plaintiffs bring an as-applied challenge, Dkt. # 51 at 48, meaning they must prove that — 8 — Defendants differentially applied a facially neutral plan term.7 Id. at *6 . 9 Plaintiffs contend that Defendants’ application of their medical necessity criteria, a 10 nonquantitative treatment limitation, improperly required acute symptoms evidencing a risk of 11 harm to self or others for admission to residential treatment, but that acute requirements do not 12 exist for analogous medical or surgical treatment. Dkt. # 51 at 48–49. This disparity, Plaintiffs 13 say, violates the Parity Act because it is a more stringent limitation for mental health care. Id. 14 Plaintiffs state that Defendants denied H.-W.’s claims because she was not “acutely suicidal, 15 with intent or plan,” “homicidal,” “acutely psychotic,” or “gravely disabled.” AR_001454, 16 AR_006977. Because the admission criteria Defendants use for skilled nursing or inpatient 17 rehabilitation facilities do not similarly require members to be “acutely suicidal, with intent or 18 plan,” “homicidal,” “acutely psychotic,” or “gravely disabled,” Plaintiffs say Defendants violated 19 the Parity Act. Dkt. # 51 at 48. The Court disagrees for two main reasons. 20 First, Defendants did not necessarily require H.-W. to be “acutely suicidal, with intent or 21 plan,” or for her to exhibit the other three acute symptoms, to render her admission to residential 22 treatment medically necessary. Granted, as discussed above, PHP misinterpreted the second — 23 — 7 The Court notes that the Plan applies a singular definition of “medically necessary” care for 24 both mental health services and medical or surgical services. AR_000032; AR_000276. 1 criterion. But the Guidelines required H.-W. to satisfy all three criteria to warrant admission to a 2 residential treatment center. See AR_000286–87. And the AR supports PHP’s determination 3 that H.-W.’s admission at both facilities was not medically necessary based on the third criterion 4 because she could have received treatment in a “less intensive setting.” AR_000287. Thus, 5 Plaintiffs cannot prevail on their Parity Act claim because their basis for comparing medical 6 necessity criteria between mental health and medical or surgical treatment—that Defendants 7 allegedly require members to be acutely suicidal, homicidal, acutely psychotic, or gravely 8 disabled—is not necessarily correct. 9 Second, Plaintiffs offer no evidence for how Defendants applied their medical necessity 10 criteria for residential mental health treatment more restrictively than for skilled nursing facilities 11 and inpatient rehabilitation facilities in the medical or surgical care context. For example, 12 Plaintiffs submit no evidence that Defendants applied “processes, strategies, [and] evidentiary 13 standards” more stringently in resolving claims for residential treatment than for analogous 14 medical or surgical claims. 29 C.F.R. § 2590.712 (c)(4)(i). And contrary to Plaintiffs’ assertion, 15 the analogous guidelines in fact require acute symptoms for admission to skilled nursing or 16 rehabilitation services for certain conditions. See, e.g., Dkt. # 51-2 at DEF_0011. District courts 17 around the country have come to similar conclusions in analogous cases. See, e.g., Kevin D., 545 18 F. Supp. 3d at 617 (concluding when the defendants use the same medical necessity definition 19 for all services that the plaintiffs “failed to satisfy their burden of proof by pointing to any actual 20 facts that support their claim that there was disparate treatment in the way the defendants 21 handled [the plaintiff’s] claim” compared to how the defendants “evaluate claims for prolonged 22 treatment at skilled nursing facilities and inpatient rehabilitation centers”); Mike G. v. Bluecross 23 Blueshield of Tex., No. 2:17-CV-347 TS, 2019 WL 2357380 , at *16 (D. Utah June 4, 2019) 24 (“Plaintiffs argue that the Milliman Care Guidelines improperly apply acute requirements for l sub-acute residential mental health treatment, but there is no evidence before the Court that Blue 2 Cross applied less stringent requirements for medical/surgical benefits. Without such evidence, 3 Plaintiffs’ Parity Act claim must fail.”); Anne M. v. United Behav. Health, No. 2:18-CV-808 TS, 4 || 2019 WL 1989644 , at *3 (D. Utah May 6, 2019) (dismissing as-applied Parity Act claim because 5 allegations that the plan “imposed greater restrictions on residential treatment for mental health 6 || than it did for medical facilities, such as skilled nursing homes” were “merely conclusory 7 allegations devoid of factual support”). 8 In sum, Plaintiffs’ Parity Act claim fails as a matter of law. 9 IV 10 CONCLUSION 11 Based on the above reasons, the Court GRANTS Defendants’ motion for summary 12. ||Judgment, Dkt. # 44, and DENIES Plaintiffs’ motion for summary judgment, Dkt. # 51. 13 Dated this 23rd day of January, 2023. Joka M, Chur 15 John H. Chun United States District Judge — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 —