Midthun-Hensen v. Grp. Health Coop. of S. Cent. Wis.
| Decision Date | 27 September 2022 |
| Docket Number | 21-cv-608-slc |
| Parties | ANGELA MIDTHUN-HENSEN and TONY HENSEN, as representatives of their minor Daughter, K.H., and on behalf of all others similarly situated, Plaintiffs, v. GROUP HEALTH COOPERATIVE OF SOUTH CENTRAL WISCONSIN, INC., Defendant. |
| Court | U.S. District Court — Western District of Wisconsin |
In this putative class action, plaintiffs Angela Midthun-Hensen and Tony Hensen contend that their health insurer, defendant Group Health Cooperative, violated the Mental Health Parity and Addiction Equality Act (“Parity Act”), 29 U.S.C. § 1185a, and certain provisions of the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. §§ 1001, when it failed to approve their requests for speech and occupational therapy treatment for their daughter's autism. GHC's stated reason for the denials was that the treatments were not evidence-based treatments for autism in children aged 10 and over, and therefore were excluded under the plan's exclusion for experimental and investigational treatment.
In February 2022, defendant filed an early motion for summary judgment, which the court had authorized after conferring with the parties at the preliminary pretrial conference. Dkts. 12, 13. Briefing ensued on the question whether plaintiffs should be entitled to discovery before responding to the motion. Dkts. 23-30. On May 6, 2022, I entered an order concluding that: (1) plaintiffs were not entitled to discovery on their ERISA claim for improper denial of benefits because they did not qualify for an exception to the general rule limiting review to the administrative record and (2) they were not entitled to discovery on their Parity Act claim because their complaint did not plausibly allege a Parity Act violation. 5/6/22 Op. and Ord., dkt 31. However, I gave plaintiffs an opportunity to amend their complaint “solely with respect to their Parity Act claim,” and set a deadline by which GHC could either renew or withdraw its summary judgment motion. Id.
On May 27, 2022, plaintiffs filed an amended complaint, dkt. 32, and on June 23, 2022 GHC renewed its summary judgment motion dkt. 34. The court granted plaintiffs' unopposed motion to extend their response deadline; on July 25, 2022, plaintiffs renewed their Rule 56(d) motion, again asking to take discovery on their Parity Act claim.[1] Dkt. 45. For the reasons stated below, I am denying plaintiffs' motion.
BACKGROUND[2]
In their amended complaint, plaintiffs plead both facial and as-applied violations of the Parity Act. Dkt. 32, at ¶¶ 93-112. They allege, generally, that GHC applies coverage limitations requiring treatment to be “evidence-based” and not experimental or investigatory more restrictively to mental health treatment - specifically, to occupational and speech therapy for the treatment of autism in children aged 10 or older-than it does to comparable medical or surgical treatment. The amended complaint contains broad allegations to this effect, see ¶¶ 100, 111112, as well as more specific allegations that purport to identify comparable medical analogues, specifically: (1) clinical trials for the treatment of cancer, cardiovascular disease or muscular skeletal disorders of the spine, hip or knees, ¶ 96; (2) chiropractic services, ¶¶ 98, 110; and (3) speech, physical and occupational therapy when requested to treat medical conditions, ¶108.
In its brief in support of its motion for summary judgment, GHC rebuts each of these claims. Dkt. 35, at 39-45. In support, it relies on the language of the Plan Certificates and Policy 121, both of which are part of the administrative record. However, GHC does adduce some extra-record evidence, namely Policy 117, which it represents is a policy document prepared by GHC to aid it in evaluating whether chiropractic treatments were evidence-based and not experimental/investigational. Meyer Dec., dkt. 37, ¶¶ 35-37, and exh. 15. According to GHC, Policy 117 shows that GHC's process for determining which chiropractic services were evidence-based is the same process it used in determining which treatments for autism were evidence-based: GHC reviewed the medical research and prepared summary guidance that discussed which treatments were supported by research and which were not. Dkt. 35, at 44.
Plaintiffs filed a response to the motion, accompanied by a request under Fed.R.Civ.P. 56(d) that the court allow plaintiffs to take discovery on the Parity Act claims before ruling on GHC's motion.[3] Dkts. 45-53. Plaintiffs ask the court to stay summary judgment until they can take discovery on their “as applied” Parity Act claims.[4] The motion has been fully briefed and is ready for decision by the court.
“[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catreett, 477 U.S. 317, 322 (1986). The mechanism for ensuring that adequate discovery occurs before summary judgment is defined in Fed.R.Civ.P. 56(d). Id. at 326. Rule 56(d) allows time for a nonmovant “to obtain affidavits or declarations or take discovery” related to a motion for summary judgment “[i]f the nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition.”
As an initial observation, GHC uses language in its summary judgment brief that calls to mind a Rule 12(b)(6) argument.[5] However, I do not understand GHC to be arguing that plaintiffs have failed in their amended complaint to state a claim under the Parity Act. To the contrary, as plaintiffs point out, GHC not only has responded to the merits of plaintiffs' allegations, it has done so in part by relying on evidence outside the pleadings, namely, Policy 117.
That said, the parties' submissions reveal a fundamental dispute about what it is that plaintiffs have fairly alleged in their amended complaint. GHC asserts that plaintiffs may proceed on an “as applied” Parity Act claim only insofar as they have identified a specific medical/surgical analog in the amended complaint, as they concede plaintiffs have done with respect to chiropractic treatment. Plaintiffs, on the other hand, appear to believe that, having generally alleged that GHC applied its “evidence based/experimental standard” to plaintiffs' claim for certain therapies to treat autism more restrictively than it does to medical/surgical benefits, plaintiffs are entitled to discover how GHC applies its “evidence based/experimental standard” to any and all medical/surgical benefits in the same classification, of which chiropractic care was just one example. Plaintiffs argue that requiring them to list “every other type of health care treatment for which GHC applied a different coverage standard” goes beyond Fed.R.Civ.P. 8(a)'s notice pleading requirement and would impose an impossible burden on plaintiffs asserting Parity Act claims. In support, plaintiffs cite cases holding that a plaintiff who states a plausible “as applied” challenge under the Parity Act is not subject to the ordinary limitations on discovery that apply to ERISA claims brought under § 1132(a)(1)(B) and are not likely, without discovery, to have specific information about the clinical reasons for a particular disparity in the way mental health and medical services are treated. Dkt. 46. at 10-12.
I agree with plaintiffs' contention that information concerning the processes, strategies or other factors utilized by a plan administrator in applying a particular treatment limitation to an analogous medical/surgical treatment will typically be in the possession of the plan administrator. I disagree with plaintiffs' suggestion that Parity Act plaintiffs may unlock the door to essentially unfettered discovery simply by parroting in their complaint the language of the Parity Act and alleging generally that the plan administrator does not apply the relevant treatment limitation as restrictively to “medical/surgical benefits” as it does to “mental health benefits.” Indeed, even the cases cited by plaintiffs require a Parity Act plaintiff to allege “that the mental health or substance use disorder benefit being limited is in the same classification as the medical/surgical benefit to which it is being compared.” Dkt. 46, at 7 (). See also David P. v. United Healthcare Ins. Co., No. 219CV00225JNPPMW, 2020 WL 607620, at *17 (D. Utah Feb. 7, 2020) () (citation omitted, emphasis added); Smith v. Golden Rule Ins. Co., 526 F.Supp.3d 374, 389 (S.D. Ind. 2021) (); M. v. United Behav. Health, No. 218CV00808HCNDAO, 2020 WL 5107634, at *2 (D. Utah Aug. 31, 2020) (). Under the Parity Act, the question is not how GHC “cover[s] medical/surgical care compared to mental health...
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