Pac. Shores Hosp. v. United Behavioral Health
| Decision Date | 20 August 2014 |
| Docket Number | No. 12–55210.,12–55210. |
| Citation | 764 F.3d 1030 |
| Parties | PACIFIC SHORES HOSPITAL, Assignee, Plaintiff–Appellant, v. UNITED BEHAVIORAL HEALTH; Wells Fargo & Company Health Plan, Defendants–Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
OPINION TEXT STARTS HERE
Elizabeth K. Green, Lisa S. Kantor (argued), and Peter S. Sessions, Kantor & Kantor LLP, Northridge, California, for Plaintiff–Appellant.
Robert Claude Bohner, Douglas J. Collodel (argued), and David Michael Humiston, Sedgwick LLP, Los Angeles, California, for Defendants–Appellees.
M. Patricia Smith, Solicitor of Labor, Timothy D. Hauser, Associate Solicitor for Plan Benefits Security Division, Elizabeth Hopkins, Counsel for Appellate and Special Litigation, and Candyce Phoenix (argued), Trial Attorney, United States Department of Labor, Washington, D.C., for Amicus Curiae Secretary of Labor.
Appeal from the United States District Court for the Central District of California, Philip S. Gutierrez, District Judge, Presiding. D.C. No. 2:10–cv–05828–PSG–CW.
Before: WILLIAM A. FLETCHER, MILAN D. SMITH, JR., and PAUL J. WATFORD, Circuit Judges.
An employee of Wells Fargo, whom we will call Jane Jones, was covered under the Wells Fargo & Company Health Plan (the “Plan”), governed by the Employee Retirement Income Security Act of 1974 (“ERISA”). United Behavioral Health (“UBH”) is a third-party claims administrator of the Plan. Jones was admitted to Pacific Shores Hospital (“PSH”) for acute inpatient treatment for severe anorexia nervosa. UBH refused to pay for more than three weeks of inpatient hospital treatment. UBH based its refusal in substantial part on mischaracterizations of Jones's medical history and condition. PSH continued to provide inpatient treatment to Jones after UBH refused to pay. Jones assigned to PSH her rights to payment under the Plan.
PSH sued the Plan and UBH, seeking payment for the additional days of inpatient treatment. We conclude that UBH abused its discretion in refusing to pay for these days of treatment.
The Plan is self-insured by Wells Fargo, which is both the sponsor and administrator of the Plan. Wells Fargo contracts with third-party administrators to review claims made under the Plan. The third-party administrator responsible for reviewing mental health and substance abuse claims, including anorexia nervosa, is OptumHealth Behavioral Solutions, which is a trade name of UBH.
Jones was admitted to PSH on January 25, 2010. Jones's brother had recently sent an email to Jones's entire family saying that he felt that he was planning her funeral. Jones's 17–year–old daughter feared for her mother's life. UBH's case management notes listed Jones's “Reason for admission” as “severe depression, SI [Suicidal Ideation], and anorexia.” Jones's admitting diagnoses were (1) “Major Depressive Disorder, Recurrent, Severe Without Psychotic Features”; (2) “Anorexia Nervosa”; (3) “pneumonia”; and (4) “Problems with primary support group.” UBH initially authorized four days of inpatient hospital treatment.
UBH case notes for January 27 provide:
UR [Utilization Review, referring to Dy Wolpert, an Advanced Practice Registered Nurse employed by PSH] reported on 01/27/10:
Presenting problem: SI [Suicidal Ideation] w/ plan to OD [Overdose]. Laxative abuse, taking 130 Sena–S laxatives per day. Skeletal in appearance. Weighs just 88 lbs @ 66 inches tall. 65% of IBW [Ideal Body Weight]; BMI [Body Mass Index] is 13.52. Pneumonia. Fainting due to laxative abuse. Eating 200 calories per day. Also purges by self-induced vomiting, and that's worsening....
Suicide risk: SI w/ plan to OD on tylenol.
Hx [History] of SI / attempts / gestures / interventions. In 2007 took whole bottle of laxatives in a suicide attempt.
(Emphasis added.)
UBH case notes for January 27 describe Jones's condition as “Emergent–Life Threatening.” The “Treatment Plan” in the January 27 notes provides:
Tx [Treatment] Plan: stabilize medically. Taper her off laxatives, refeeding. She'll have pancreatitis and anemia from refeeding, says UR [Nurse Wolpert]. Have to go slow on carbs and fat, goal of 2–2.5 lbs per wk weight gain.
D/C [Discharge] Criteria: step down to RTC [Residential Treatment Center] @ 85% of IBW, when no longer purging, when no SI, and once through laxative taper....
ELOS [Estimated Length of Stay]: 4 wks of IP [Inpatient].
(Emphasis added.)
UBH case notes two days later provide:
UR [Nurse Wolpert] reported on 01/29/10: admitted with active SI w/ plan to OD or starve herself to death.
....
she's on a laxative taper from 130 laxatives a day.
....
active SI continues, no psychosis.
....
she's at 75.5 lbs....
(Emphasis added.) Hospital staff were checking on Jones every fifteen minutes as a “suicide precaution[ ]” and were supervising her for 2 1/2 hours after every meal. Her laxative taper was “down to 50 tablets of Sena per day from 130 tabs per day.” UBH authorized two more days of inpatient treatment.
UBH case notes for February 3 provide:
very anxious about being tapered off laxatives,
positive for SI w/ plan and intent to overdose or starve to death.
....
sleep improving, ADLs [Activities of Daily Living] improved.
eating 100%. weight @ 79 lbs.
....
irritable, dysphoric, ruminative, hopeless.
(Emphasis added.) UBH authorized four more days of inpatient treatment, through February 4, and scheduled another review date for February 5.
UBH case notes for February 5 provide:
UR [Nurse Wolpert] reported: Laxative taper? we've been aggressive with the taper. she's been down to 5 tablets per day for about a wk, and then she'll go down to 3 tablets a day for a wk. Probably about 2.5 wks more to taper off.
....
Medical stability? pt's abnormal labs are typical for an anorexic. It's as they get better that potential medical problems can set in: anemia, [e]dema, start having cardiac problems, their potassium can drop.... she has pancreatitis.
....
ELOS: 2–2.5 more wks.
(Emphasis added.) UBH authorized inpatient treatment for an additional two days, through February 6.
UBH case notes for February 8 provide:
Clinical Review Summary: CA [Care Advocate, an employee of UBH] reviewed this acute IP [Inpatient] eating disorder case w/ UBH Regional Medical Director, Dr. Murray Zucker. CA requested Dr. Zucker to conduct a P2P [Peer–to–Peer Review] of this pt's case due to medical and psychiatric complexity.
(Emphasis added.)
On February 9, Nurse Wolpert reported to UBH by voicemail:
still depressed with a lot of anxiety, positive for SI w/ plan to starve herself or OD.
....
laxative taper down to 3 tabs per night.
severe body image disturbance.
poor insight, and judgment impaired.
currently 84 lbs.
(Emphasis added.) UBH treatment notes for February 9 recorded: “we're repeating her labs. 1550 cal, 84 grams of protein. q15 min checks. meal supervision, and post-meal supervision 2.5 hrs.” (Emphasis added.)
Also on February 9, UBH Regional Director Dr. Zucker conducted a peer-to-peer review, speaking by telephone to Dr. Nomi Fredrick, Jones's attending physician at PSH. Dr. Zucker wrote a summary of the conversation. (There is no summary of the conversation written by Dr. Fredrick.) Dr. Zucker wrote:
Case Summary of Peer/Admin. Review: 43 yo female adm 1/26 for severe lax abuse (over 100/d). malnutrition, restric[ti]ng, physical consequences, and depression with s/i. Pt 5'5?, adm. [w]t. “75 or 81”, present 84.... MD [Dr. Fredrick] recounts many stressors, old and n[ ]ew (husb.) just lost job, dtr. going away to school, 6 prior pregnancies ending in miscarriage, chroni[ ]c depression and s/i (no prior attempts).
MD insists need for cont. stay: medical stabilization, suicidal risk, further wt gain.
MD ... states pt threatens to “OD by laxatives and starve myself to death if I leave now.” ... [Ho]wever, on fur[th]er questioning she reports that pt has no immed plan, has not gathered means, has made no prep, and ther[e] is [ ]no 1:1 [one-to-one observation] or even line of site [sic] in the program. MD states pt is “grieving the l[o]ss of her pregnancies.” She also reports she is doing “integrated trauma work” and I suggested th[is is] longterm tx [treatment] that can be done as OP [outpatient] when she is medically stable.
I advised the following:
1. prepare for d/c [discharge] 2/12.
....Decision and Rationale: Schedule [P]2P [Peer–to–Peer Review] on [ ]2/12 if pt not d/ced [discharged].
(Emphasis added.)
On February 10, UBH case notes indicate that Nurse Wolpert
left VM [Voice Mail] [with UBH] verbalizing his disagreement with UBH Dr. Zucker's P2P [Peer–to–Peer] review determinations on 02/09/10. UR Wolpert does not agree that the pt has lessening medical necessity for continued acute Mh IP LOC [Mental health Inpatient Level of Care]. And Wolpert does not believe the pt will be at sufficient body weight come Friday 2/12 to be safely d/c'd [discharged] to a lower LOC [Level of Care].
On February 12, Nurse Wolpert reported to UBH:
pt is off laxative taper.
having difficult time psychologically being off the laxatives.
feels gross, severe body image disturbance.
....
still c/o [complains of] SI w/plan to starve or OD.
(Emphasis added.) UBH treatment notes for February 12 recorded: “ still keeping cal plan @ 1550, .... d/c [discharge] criteria: prov [provider] wants pt @ 75% of IBW [Ideal Body Weight], around 90–95 lbs.” (Emphasis added.) Up to this date, UBH's notes had consistently listed Jones's weight at admission as 88 pounds. On February 12, for the first time, her weight at admission was listed at 81 pounds. UBH authorized inpatient treatment through February 14.
On February 16, Dr. Zucker conducted a second telephone peer-to-peer review with Dr. Fredrick. After his conversation with Dr. Fredrick, he wrote a summary. (Again, there is no summary of the conversation written by Dr. Fredrick.) Dr. Zucker wrote:
Case Summary of Peer/Admin Review: 43 yo female with AN [anorexia nervosa] and many prior tx [treatment] failures at all...
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