M.A. v. Regence Bluecross Blueshield Utah

• Decision Date: 31 December 2020
• Docket Number: No. 20190885-CA,20190885-CA
• Citation: 479 P.3d 1152
• Parties: M.A., Appellant, v. REGENCE BLUECROSS BLUESHIELD OF UTAH, Appellee.
• Court: Utah Court of Appeals

479 P.3d 1152

M.A., Appellant,

v.REGENCE BLUECROSS BLUESHIELD OF UTAH, Appellee.

No. 20190885-CA

Court of Appeals of Utah.

Filed December 31, 2020

Sara Pfrommer, Park City, and Kathleen M. McConkie, Attorneys for Appellant

Timothy C. Houpt and Jessica P. Wilde, Salt Lake City, Attorneys for Appellee

Judge Gregory K. Orme authored this Opinion, in which Judges Michele M. Christiansen Forster and Jill M. Pohlman concurred.

Opinion

ORME, Judge:

¶1 Regence BlueCross BlueShield of Utah (Regence) denied insurance coverage for a two-week biofeedback

retraining program to treat M.A.’s chronic constipation. Following three internal appeals, in which Regence upheld its denial of coverage for the treatment, M.A. sued Regence alleging, in relevant part, breach of the implied covenant of good faith and fair dealing. The district court granted summary judgment in Regence's favor. M.A. appeals, and we affirm.

BACKGROUND¹

¶2 M.A. is a beneficiary of a self-funded group health plan that her husband's employer, Granite School District, sponsors. The school district engaged Regence to act as the administrator of the plan. An administrative services contract (the ASC) governs the relationship between Regence and the school district. The ASC delegates to Regence the authority to process claims and interpret the plan on the school district's behalf, while the school district retains "the final responsibility and liability for payment of all benefits under the [plan]." Additionally, the ASC provides that the school district "may choose to delegate to Regence the discretionary authority to administer and make appeals decisions for all, some, or none of the member appeal levels."

¶3 Under the plan, with the exception of certain preventative care, "[t]o be covered, medical services and supplies must be Medically Necessary for the treatment of an Illness or Injury." Regence encourages beneficiaries of the plan to seek pre-authorization "to determine Medical Necessity prior to services being rendered." To assist in its determination of whether a requested service is medically necessary, Regence typically requests the beneficiary's medical records.

¶4 In June 2017, the Mayo Clinic sent Regence a pre-authorization request in which it diagnosed M.A. with "[c]hronic constipation secondary to pelvic floor dysfunction" and requested that Regence authorize a "two-week pelvic retraining program" during which M.A. would "learn the techniques and undergo biofeedback therapy

^[2

^] to optimize pelvic floor muscle function during defecation."

¶5 Regence applies criteria listed under the Biofeedback

Allied Health Policy Number 32 (the Biofeedback Criteria) in determining whether biofeedback treatment is medically necessary. Per the Biofeedback Criteria, "up to six biofeedback sessions over three months" may be medically necessary for adults suffering from "Dyssynergia-type constipation"³ when three criteria are met:

1. Symptoms of functional constipation that meet all (a–c) of the following ROME III criteria:

a. Two or more of the following symptoms (i–vi) have been present for the past three months, with symptom onset at least six months prior to diagnosis:

i. Straining during at least 25% of defecations

ii. Lumpy or hard stools in at least 25% of defecations

iii. Sensation of incomplete evacuation for at least 25% of defecations

iv. Sensation of anorectal obstruction/blockage for at least 25% of defecations

v. Manual maneuvers to facilitate at least 25% of defecations (e.g., digital evacuation, support of the pelvic floor)

vi. Fewer than three defecations per week

b. Loose stools are rarely present without the use of laxatives

c. Insufficient criteria for irritable bowel

syndrome

2. Objective physiologic evidence of pelvic floor dyssynergia when one or both of the following criteria are met:

a. Inappropriate contraction of the pelvic floor muscles

b. Less than 20% relaxation of basal restricting sphincter pressure by manometry, imaging, or EMG

3. Failed 3-month trial of standard treatments for constipation including laxatives, dietary changes, and pelvic floor exercises

¶6 In response to the Mayo Clinic's pre-authorization request, Regence wrote the Mayo Clinic and asked for medical documentation on whether M.A. suffered from "dyssynergia type constipation" and whether she met the Biofeedback

Criteria, which Regence listed in its letter. The Mayo Clinic forwarded M.A.’s medical records to Regence the following day.

¶7 Regence denied the requested pre-authorization. In a letter dated July 21, 2017, Regence informed M.A. that, based on the determination of a physician who reviewed the request (Physician Reviewer 1), the requested services were not medically necessary because

[t]he clinical documentation we received from your doctor does not clearly show:

• That you have dyssynergia type of constipation.

• Documentation does not clearly show functional constipation, or how long it has been present.

• Objective evidence was not received, and unclear if you have failed a 3 month trial of standard treatment for constipation.

This letter, and every subsequent letter of denial, listed the Biofeedback

Criteria in their entirety. The letter also informed M.A. of Regence's appeals process, including two levels of internal appeals followed by an external review by an independent review organization (IRO). The letter stated that M.A. could include additional information not previously considered with each new appeal.

¶8 The Mayo Clinic appealed the denial on M.A.’s behalf. The appeal included a letter from one of the Mayo Clinic's gastroenterology and hepatology specialists (Specialist). Specialist stated that "[i]t was our impression that [M.A.] has constipation due to pelvic floor dysfunction" and that "[t]his diagnosis was supported by the patient's symptoms, our clinical findings, and diagnostic tests." Specialist believed that M.A. "would benefit considerably from pelvic floor retraining," which "is universally accepted as the cornerstone for treating patients with obstructed defecation." Specialist also included an academic article that supported biofeedback

as a treatment for constipation but did not forward any additional medical records concerning M.A.’s condition or its prior treatment.

¶9 In resolving the appeal, a second physician (Physician Reviewer 2) reviewed M.A.’s medical records to determine whether the requested treatment was medically necessary. Physician Reviewer 2 upheld the denial. Specifically, she determined that (1) the records did not establish that any of the listed symptoms had been present for the past three months; (2) the sub-criterion of "[i]nappropriate contraction of pelvic floor muscles" was met, thus satisfying criterion 2;⁴ and (3) the records did not document a "[f]ailed 3-month trial of standard treatments for constipation." In sum, Physician Reviewer 2 concluded that M.A.’s medical records did not establish that her symptoms satisfied the first and third requirements of the Biofeedback

Criteria.

¶10 On July 27, 2017, Regence notified M.A. of Physician Reviewer 2's decision, stating,

The clinical documentation we received from your doctor does not clearly show how long your symptoms have been present and does not establish that your symptoms meet the ROME III criteria listed below. In addition, while the documentation indicates that you have been taking Senna and Linzess, it is unclear that you have failed a 3-month trial of standard treatments for constipation including laxatives, dietary change, and pelvic floor exercises. Your health plan does not cover services that are not medically necessary.

¶11 In August 2017, M.A. filed her own appeal in which she provided additional medical records from University of Utah Healthcare, Utah Gastroenterology, and Wasatch Endoscopy Center. This time, Regence forwent a second internal review and instead forwarded the appeal to an IRO. A board-certified physician in gastroenterology and internal medicine (Physician Reviewer 3) performed the review.⁵ Physician Reviewer 3 concluded that "[b]ased on the submitted documentation, biofeedback

training with pelvic floor training ... would not be medically necessary according to" the Biofeedback Criteria. Specifically, he determined:

Although the patient does have incomplete evacuation and frequent altered bowel habits, the nature and frequency is not estimated in the documentation. Based on the submitted documentation and medical policy for dyssynergia-type constipation all criterion are not met. ... Biofeedback

training is not medically necessary as criterion ... 1.a. is not met. The documentation does not state that the patient has had straining, lumpy or hard stools, or sensation of incomplete defecation with at least 25% of defecations; sensation of anorectal obstruction; or manual maneuvers to facilitate defecation for at least 25% of the time or fewer than 3 defecations per week. The policy criterion ... 1.b. and c. also require that the patient have loose stools rarely without use of laxatives and does not meet criteria for irritable bowel syndrome. Policy criteria [2.a. and 2.b.] are also not met as there is no documentation of inappropriate contractions of the pelvic floor muscles, or less than measured 20% relaxation of basal resting sphincter pressure. The only criterion met is documentation of failure of three months of standard treatments for constipation.

Based on this independent review, Regence notified M.A. in a letter dated August 30, 2017, that the IRO upheld its decision to deny pre-authorization.

¶12 In February 2018, M.A., through counsel, appealed with Regence a final time. As part of the appeal, M.A. submitted letters from several of her treating physicians, including a second letter from Specialist, dated December 22, 2017. In this letter, Specialist stated that in his opinion, M.A. "has dyssynergia type constipation," "had been afflicted with functional constipation

for at least 36 months," and "has failed a 3-month trial of local, standard treatment...