Doe v. Harvard Pilgrim Health Care, Inc., No. 19-1879

• Decision Date: 09 September 2020
• Docket Number: No. 19-1879
• Citation: 974 F.3d 69
• Parties: Jane DOE, Plaintiff, Appellant, v. HARVARD PILGRIM HEALTH CARE, INC.; The Harvard Pilgrim PPO Plan Massachusetts, Group Policy Number 0588660000, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

974 F.3d 69

Jane DOE, Plaintiff, Appellant,

v.HARVARD PILGRIM HEALTH CARE, INC.; The Harvard Pilgrim PPO Plan Massachusetts, Group Policy Number 0588660000, Defendants, Appellees.

No. 19-1879

United States Court of Appeals, First Circuit.

September 9, 2020

Mala M. Rafik, with whom Sarah E. Burns, Boston, MA, and Rosenfeld & Rafik, P.C. were on brief, for appellant.

Steven L. Schreckinger, with whom Jane M. Guevremont, Boston, MA, and Anderson & Kreiger LLP were on brief, for appellees.

Before Torruella, Selya, and Kayatta, Circuit Judges.

KAYATTA, Circuit Judge.

Jane Doe spent several months of 2013 at a residential mental health treatment center, interrupted by several days in an inpatient hospital in June of that year. The Defendants ("Harvard Pilgrim") agreed to cover the costs of Doe's treatment at the residential facility, the Austen Riggs Center ("Riggs") in Massachusetts, for her first few weeks there, as well as the months after her stint in an inpatient unit. However, Harvard Pilgrim denied coverage for the time period from February 13, 2013, through June 18, 2013, asserting that Doe could have stepped down to a lower level of treatment during those months. Doe sued Harvard Pilgrim in the District of Massachusetts seeking de novo review of her claim for coverage of that time period under the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. §§ 1001 – 1461. Following an earlier appeal, the district court entered judgment for Harvard Pilgrim on remand. Doe now appeals both that judgment and the district court's refusal to award Doe attorneys' fees for her success on the prior appeal. For the following reasons, we affirm the district court's rulings.

I.

Our previous opinion in this case reviewed in detail the events giving rise to this litigation. See Doe v. Harvard Pilgrim Health Care, Inc., 904 F.3d 1, 2–6 (1st Cir. 2018) ( Doe I ). For the purposes of this appeal, we set out a short summary of the relevant facts here: Doe began experiencing serious symptoms of psychological illness during her first year of college in 2012 and was hospitalized twice over the course of a few months. On January 17, 2013, Doe was admitted to Riggs. Harvard Pilgrim approved initial coverage of her treatment there for seven days. Harvard Pilgrim eventually extended Doe's coverage through February 5, but on that date sent Doe a letter stating that her treatment at Riggs would not be covered as of February 6. Doe initiated an expedited internal review of the decision, which Harvard Pilgrim denied on February 12, 2013, based on a report by Dr. Michael Bennett. Harvard Pilgrim accepted coverage through February 12, and otherwise stood by its denial. Subsequently, on March 12, 2013, an anonymous, independent expert retained by the Massachusetts Office of Patient Protection ("OPP") also upheld Harvard Pilgrim's denial of coverage for a continued stay at Riggs, albeit beginning as of February 13, not February 6.

During the course of these reviews, Doe remained at Riggs for treatment. On June 18, however, Doe was transferred from Riggs to inpatient treatment at Berkshire Medical Center. She was then readmitted to Riggs from Berkshire Medical Center on June 24. Although Harvard Pilgrim initially denied coverage for Doe's second admission to Riggs (beginning on June 24, 2013), it reversed that decision after an internal review by Dr. Edward Darell concluded that the second admission was medically necessary. Doe was finally released from Riggs on August 7, 2013.

Doe filed this case against Harvard Pilgrim in March 2015. Harvard Pilgrim's Medical Director, Dr. Joel Rubenstein, conducted another review in September 2015 and concluded that Harvard Pilgrim had properly denied coverage. Harvard Pilgrim then agreed to reconsider that decision. Doe I, 904 F.3d at 4, 9. That reconsideration generated further information and medical opinions, including two offered by Doe (by Drs. Gregory Harris and Eric Plakun), all of which Harvard Pilgrim reviewed as the parties agreed. Id. at 4. After Harvard Pilgrim reaffirmed its decision denying coverage for the time period at issue, the parties filed cross-motions for summary judgment. Id. at 5. The district court restricted its review to the administrative record as of March 12, 2013, and therefore did not consider records generated or exchanged during Harvard Pilgrim's reconsideration of its denial. See Doe v. Harvard Pilgrim Health Care, Inc., No. 15-10672, 2017 WL 4540961, at *10–11 (D. Mass. Oct. 11, 2017). Ultimately, the district court agreed with Harvard Pilgrim and entered summary judgment dismissing Doe's claim. See id. at *15. On Doe's appeal, we vacated the judgment, ruling that the district court should include in the record and consider the additional material generated as a result of Harvard Pilgrim's agreement to conduct a supplemental review of additional information, as well as other information produced in the interim (letters from Doe's treating psychologist, Dr. Sharon Krikorian, and documents relating to Doe's second admission, including a report from Dr. Edward Darell). Doe I, 904 F.3d at 4, 6–9, 11. We also clarified that, in the event of a second appeal, we would review the district court's factual findings only for clear error. Id. at 9–11. On remand, the district court again granted summary judgment for Harvard Pilgrim, and Doe now appeals a second time.

II.

A.

1.

As we explained previously, "[i]n the ERISA context, ‘the burdens and presumptions normally attendant to summary judgment practice do not apply.’ " Doe I, 904 F.3d at 10 (alteration omitted) (quoting Stephanie C. v. Blue Cross Blue Shield of Mass. HMO Blue, Inc., 813 F.3d 420, 425 n.2 (1st Cir. 2016) ( Stephanie C. I )). Instead, a summary judgment motion in a lawsuit contesting the denial of benefits under ERISA "is simply a vehicle for teeing up the case for decision on the administrative record." Id. (citing Doe v. Standard Ins. Co., 852 F.3d 118, 123 n.3 (1st Cir. 2017) ). Unless discretionary authority has been granted to the plan administrator, the district court considers the issues de novo and "may weigh the facts, resolve conflicts in evidence, and draw reasonable inferences." Stephanie C. v. Blue Cross Blue Shield of Mass. HMO Blue, Inc., 852 F.3d 105, 111 (1st Cir. 2017) ( Stephanie C. II ) (citing Orndorf v. Paul Revere Life Ins. Co., 404 F.3d 510, 518 (1st Cir. 2005) ). Thus, "summary judgment in the ERISA context is akin to judgment following a bench trial in the typical civil case." Doe I, 904 F.3d at 10–11. As a result, we review the district court's factual findings for clear error. Id. at 11.

2.

Doe's family's plan from Harvard Pilgrim provides coverage only for treatment that is "medically necessary." The plan defines "medically necessary" treatment as:

Those health care services that are consistent with generally accepted principles of professional medical practice as determined by whether: (a) the service is the most appropriate supply or level of service for the Member's condition, considering the potential benefit and harm to the individual; (b) the service is known to be effective, based on scientific evidence, professional standards and expert opinion, in improving health outcomes; and, (c) for services and interventions that are not widely used, the service for the Member's condition is based on scientific evidence.

To determine medical necessity in the context of mental health treatment, Harvard Pilgrim employs the Optum Level of Care Guidelines from United Behavioral Health ("the Guidelines"). Under the Guidelines, residential treatment is defined as "provid[ing] overnight mental health services to members who do not require 24-hour nursing care and monitoring offered in an acute inpatient setting but who do require 24-hour structure." The parties agree that Riggs provides such residential treatment. In order for such treatment to be medically necessary, the plan member must meet one of the three following criteria:

1. The member is experiencing a disturbance in mood

, affect or cognition resulting in behavior that cannot be safely managed in a less restrictive setting. - OR -

2. There is an imminent risk that severe, multiple and/or complex psychosocial stressors will produce significant enough distress or impairment in psychological, social, occupational/educational, or other important areas of functioning to undermine treatment in a lower level of care. - OR -

3. The member has a co-occurring medical disorder or substance use disorder which complicates treatment of the presenting mental health condition to the extent that treatment in a Residential Treatment Center is necessary.

No party argues that Doe met the third criterion; instead, Doe maintains that she qualified for residential treatment under the first two criteria. The district court -- like Harvard Pilgrim -- found that Doe did not meet either of the first two criteria as of February 13, 2013.¹

Doe's overarching argument on appeal is that the expert reports that formed the basis for Harvard Pilgrim's denials of coverage improperly used an incorrect standard of care, essentially requiring that she need 24-hour nursing care, even though the Guidelines state explicitly that residential treatment should be available "to members who do not require 24-hour nursing care and monitoring offered in an acute inpatient setting but who do require 24-hour structure." Specifically, the OPP reviewer justified his or her decision based on finding "no evidence that the patient required 24 hour supervision or nursing care," and Dr. Rubenstein's report similarly repeatedly references "24 hour care" as the relevant benchmark without mentioning the Guideline's language of "24-hour structure." (The only other expert in the record to conclude that the first admission was not necessary after February 13, 2013, Dr. Bennett, did not reference the Guideline language at all.)

We disagree with Doe: It was not clear error for the district court to rely on these...