Stephanie C. v. Blue Cross Blue Shield of Mass. HMO Blue, Inc.

• Decision Date: 24 March 2017
• Docket Number: No. 16-1997,16-1997
• Parties: STEPHANIE C., Individually and as Guardian of M.G., Plaintiff, Appellant, v. BLUE CROSS BLUE SHIELD OF MASSACHUSETTS HMO BLUE, INC., Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

852 F.3d 105

STEPHANIE C., Individually and as Guardian of M.G., Plaintiff, Appellant,

v.BLUE CROSS BLUE SHIELD OF MASSACHUSETTS HMO BLUE, INC., Defendant, Appellee.

No. 16-1997

United States Court of Appeals, First Circuit.

March 24, 2017

Brian S. King , with whom Brian S. King, PC , Salt Lake City, UT, and Jonathan M. Feigenbaum , Boston, MA, were on brief, for appellant.

Joseph D. Halpern , with whom Law Office of Joseph Halpern and Donald J. Savery , Boston, MA, were on brief, for appellee.

Before Barron, Circuit Judge, Souter, Associate Justice,^* and Selya, Circuit Judge.

SELYA, Circuit Judge.

In this case, brought pursuant to the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1132(a)(1)(B), plaintiff-appellant Stephanie C. (Stephanie) continues to seek reimbursement for certain expenses connected with the treatment of her teenage son, M.G. The plan administrator, defendant-appellee Blue Cross Blue Shield of Massachusetts HMO Blue, Inc. (BCBS), denied the portions of her claim that are now in dispute. The district court, reviewing the denial de novo, upheld BCBS's action. Stephanie appeals. After careful consideration, we affirm.

I. BACKGROUND

This dispute is no stranger to our court: it comes before us for a second time. See Stephanie C. v. Blue Cross Blue Shield of Mass. HMO Blue, Inc. (Stephanie I ), 813 F.3d 420 (1st Cir. 2016). Because there is no need to repastinate ground already well-plowed, we begin by reproducing our earlier summary of how the case arose.

Stephanie's son, M.G., is a derivative beneficiary of an ERISA-regulated group health insurance plan (the Plan) furnished by his father's employer, Harmonix Music Systems, Inc. (Harmonix). The Plan is denominated as a "Preferred Blue PPO Preferred Provider Plan," the terms of which are set out in a subscriber certificate (the Certificate). In pertinent part, the Certificate makes clear that coverage under the Plan remains subject to a determination of medical necessity made by BCBS. It specifies that the Plan covers treatment for psychiatric illnesses, including biologically based conditions (e.g., autism

) and, for children until age nineteen, for non-biologically based conditions (e.g., behavioral problems). Such benefits do not accrue for residential, custodial, or medically unnecessary services, such as those performed in "educational, vocational, or recreational settings." The Certificate also stipulates that only the least intensive type of setting required for treatment of a condition will receive approval. Any non-emergency inpatient course of treatment needs approval before the patient is admitted to the facility.

....

M.G. experienced a number of mental health issues beginning in early childhood....

M.G.'s condition intensified in severity in the summer of 2010 (the summer between his freshman and sophomore years in high school). At that time, he became physically aggressive toward his parents and attended weekly mental health therapy sessions. Although enrolled in an intensive outpatient educational facility, he continued to exhibit aggressive behavior that led to multiple arrests. His problems escalated because he steadfastly refused to take medications despite a court order requiring him to do so.

Concerned about the apparent inadequacy of his care, Stephanie enrolled M.G. (at her own expense and without prior approval) in Vantage Point by Aspiro (Aspiro), a wilderness therapy program based in Utah, which specializes in neurodevelopmental disorders. M.G. remained at Aspiro from October of 2010 to January of 2011. His psychological evaluators there diagnosed him as having Asperger's Syndrome, anxiety disorder, and attention deficit and hyperactivity disorder. Noticing some improvement, they recommended that he continue therapy in a longer-term setting.

On the advice of a consultant and without prior approval, Stephanie proceeded to enroll M.G. in Gateway Academy (Gateway), a private school treatment center in Utah that BCBS insists is "out of network" (that is, not in a contractual relationship with BCBS). While at Gateway, M.G.'s aggressive and emotionally erratic behavior continued; among other things, he engaged in inappropriate sexual contact and committed a variety of petty criminal offenses.

In April of 2011, Harmonix submitted claims to BCBS for three sets of psychiatric evaluations and consultation services (performed during the period from January 27, 2011 to February 23, 2011) in connection with M.G.'s admission to Gateway. In late June, BCBS informed Harmonix that Gateway was a non-covered provider but that it would cover the three sets of evaluations "as a one-time exception." Gateway itself submitted claims in September of 2011 and March of 2012 seeking reimbursement for principally residential services rendered to M.G. dating back to January of 2011.

In an informal process, BCBS denied these room and board claims because the services were not medically necessary and the submitted documentation did not support the need for an inpatient admission. In an explanatory letter dated May 25, 2012, BCBS advised M.G.'s father that its denial of benefits

was based largely upon an evaluation conducted by Dr. Elyce Kearns, a psychiatrist-reviewer, who relied upon "InterQual," a nationally recognized set of criteria used to assess the level of care for mental health patients. Given Dr. Kearns' evaluation, BCBS concluded that M.G.'s "clinical condition does not meet the medical necessity criteria required for an acute residential psychiatric stay."

About a year later, Stephanie requested and received a sheaf of pertinent records from BCBS. She then contested the denial of coverage through BCBS's internal review process. In support of her appeal, Stephanie furnished documentation from M.G.'s psychotherapists, evaluators, and educators in addition to police reports and juvenile court records. Collectively, these materials described M.G.'s difficulties involving physical and verbal aggression, emotional volatility, lack of impulse control, and thinking errors. This pattern of conduct, Stephanie maintained, posed a danger to M.G. and to others.

A second psychiatrist-reviewer, Dr. Kerim Munir, scrutinized the administrative record and recommended that BCBS uphold the denial of benefits. He cited the absence of any medical necessity for the placement and reiterated the conclusions of the first psychiatrist-reviewer. On June 19, 2013, BCBS denied the internal appeal in a letter to Stephanie.

Id. at 423-25 (footnote omitted).

Having exhausted her administrative remedies, Stephanie sued BCBS in an effort to recover the denied benefits. See 29 U.S.C. § 1132(a)(1)(B). The parties cross-moved for summary judgment, and the district court entered judgment in favor of BCBS. See Stephanie C. v. Blue Cross Blue Shield of Mass. HMO Blue, Inc. , No. 13-13250, 2015 WL 1443012, at *12 (D. Mass. Mar. 29, 2015). Stephanie appealed.

We did not reach the merits of Stephanie's appeal but, rather, focused on a threshold issue, holding that the district court erred in reviewing BCBS's denial of benefits for abuse of discretion. See Stephanie I , 813 F.3d at 428-29. We explained that the court should have reviewed the denial de novo because the Certificate did not unambiguously confer discretionary decisionmaking authority on the plan administrator (BCBS). See id. (citing Firestone Tire & Rubber Co. v. Bruch , 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989) (holding that a denial of ERISA benefits "is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan")). Consequently, we vacated the district court's decision in relevant part and remanded for reappraisal of the denial of benefits under the appropriate standard of review. See id. at 429.

On remand, the district court—this time exercising de novo review—again entered judgment in favor of BCBS. See Stephanie C. v. Blue Cross Blue Shield of Mass. HMO Blue, Inc. (Stephanie II ), No. 13-13250, 2016 WL 3636978, at *4 (D. Mass. June 30, 2016). This timely appeal followed.

II. STANDARD OF APPELLATE REVIEW

This appeal, like Stephanie's earlier appeal, presents a standard of review quandary—but one that operates on a different level. The first time around, we were asked to determine what standard of review the district court should employ in its review of the record of proceedings before the plan administrator. See Stephanie I , 813 F.3d at 428-29. On remand, the district court performed that task and, as we had instructed, exercised de novo review. See Stephanie II , 2016 WL 3636978, at *4. The question now becomes what standard we should apply in reviewing the district court's decision.

Stephanie posits that we should undertake de novo review at the appellate level. Her argument leans heavily on the fact that the parties presented this case to the district court on cross-motions for summary judgment. This argument has a certain superficial appeal: after all, appellate review of a district court's grant or denial of summary judgment is normally de novo, see , e.g. , Murray v. Kindred Nursing Ctrs. W. LLC , 789 F.3d 20, 25 (1st Cir. 2015) ; Houlton Citizens' Coal. v. Town of Houlton , 175 F.3d 178, 184 (1st Cir. 1999), and that standard is not altered by the incidence of cross-motions for summary judgment, see , e.g. , Blackie v. Maine , 75 F.3d 716, 721 (1st Cir. 1996).

The rationale behind this practice is straightforward. In the ordinary case, a motion for summary judgment asks the district court to decide questions of law: does the summary judgment record, viewed in the light most hospitable to the nonmovant, reveal the absence of any genuine issue of material fact and confirm that the movant is entitled to judgment as a matter of law? See Fed. R. Civ. P. 56(a) ; Murray , 789 F.3d at 25. If the answers to these questions are in the affirmative, the case ends; if the...