Wise v. Maximus Fed. Servs., Inc.

• Decision Date: 08 April 2020
• Docket Number: Case No. 18-CV-07454-LHK
• Citation: 445 F.Supp.3d 170
• Parties: Benjamin WISE, Plaintiff, v. MAXIMUS FEDERAL SERVICES, INC., et al., Defendants.
• Court: U.S. District Court — Northern District of California

445 F.Supp.3d 170

Benjamin WISE, Plaintiff,

v.MAXIMUS FEDERAL SERVICES, INC., et al., Defendants.

Case No. 18-CV-07454-LHK

United States District Court, N.D. California, San Jose Division.

Signed April 8, 2020

David Jason Davis, Davis Law Group, PLC, Santa Monica, CA, for Plaintiff.

Jeremy Adam Meier, Alicia Intriago, Samuel S. Hyde, Willis M. Wagner, Greenberg Traurig, LLP, Sacramento, CA, for Defendant Maximus Federal Services, Inc.

Courtney Culwell Hill, Sylvia Joo, Gordon Rees Scully Mansukhani, LLP, Los Angeles, CA, for Defendants United HealthCare Services, Inc., United Health Care Insurance Company.

Dennis J. Rhodes, Wilson, Elser, Moskowitz, Edelman & Dicker LLP, San Francisco, CA, for Defendant MVI Administrators Insurance Solutions, Inc.

ORDER DENYING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT; GRANTING IN PART DEFENDANT UHC'S MOTION FOR SUMMARY JUDGMENT; GRANTING IN PART DEFENDANT MAXIMUS'S MOTION FOR SUMMARY JUDGMENT

Re: Dkt. Nos. 157, 159, 162

LUCY H. KOH, United States District Judge

Plaintiff Benjamin Wise brings suit against Defendants United HealthCare Services, Inc. and UnitedHealthCare Insurance Co. (collectively, "UHC"), as well as Defendant MAXIMUS Federal Services, Inc. ("MAXIMUS"), with regard to a denial of benefits to which Plaintiff claims he is entitled under his health insurance plan, which is covered by the Employee Retirement Income Security Act ("ERISA"). Before the Court are Plaintiff's motion for partial summary judgment, Defendant UHC's motion for summary judgment, and Defendant MAXIMUS's motion for summary judgment.¹ Having considered the submissions of the parties, the relevant law, and the record in this case, the Court DENIES Plaintiff's motion for partial summary judgment; GRANTS in part Defendant UHC's motion for summary judgment; and GRANTS in part Defendant MAXIMUS's motion for summary judgment.

I. BACKGROUND

A. Factual Background

The Court overviews the structure of Plaintiff's insurance plan, the nature of independent medical review under California law, and the facts surrounding Plaintiff's allegations.

1. Plaintiff's Insurance Plan

Plaintiff's employer, Eric Miller Architects, participates in the Monterey County Hospitality Association Health & Welfare Plan (the "Plan"). Pursuant to the Plan's Summary Plan Description, "[b]enefits under the Plan are provided by certain insurance providers contracting with the Trust, and are subject to the provisions of the Plan, the Trust Agreement, your employer's Adoption Agreement, and the determination of the Plan Administrator or health insurance issuer(s)." UHC 108.² The Plan provides medical benefits through Defendant UHC. UHC 111–12.

Defendant UHC, in turn, promulgates a Certificate of Coverage that "describe[s] [ ] Benefits, as well as [ ] rights and responsibilities, under the Policy." UHC 174. The Certificate of Coverage dictates that Defendant UHC will "pay Benefits for Covered Health Services as described in Section 1: Covered Health Services and in the Schedule of Benefits , unless the service is excluded in Section 2: Exclusions and Limitations ." UHC 177. The Certificate of Coverage outlines various "Covered Health Services." UHC 180. In order to qualify as a "Covered Health Service," a treatment or device must be "Medically Necessary." Id. "Medically Necessary" is defined by the Certificate of Coverage as follows:

[H]ealth care services provided for the purpose of preventing, evaluating, diagnosing or treating a health condition, Mental Illness, substance-related and addictive disorders, condition, disease or its symptoms, that are all of the following.

• In accordance with Generally Accepted Standards of Medical Practice.

• Clinically appropriate, in terms of type, frequency, extent, site and duration, and considered effective for your health condition, Mental Illness, substance-related and addictive disorders, disease or its symptoms.

• Not mainly for your convenience or that of your doctor or other health provider.

• Not more costly than an alternative drug, service(s) or supply that is at least as likely to produce equivalent therapeutic or diagnostic results as to the diagnosis or treatment of your health condition, disease or symptoms.

UHC 253. "Covered Health Services" includes certain types of "durable medical equipment." UHC 185. Specifically, "Covered Health Services" includes:

Durable Medical Equipment that meets each of the following criteria:

• Ordered or provided by a Physician for outpatient use primarily in a home setting.

• Used for medical purposes.

• Not consumable or disposable except as needed for the effective use of covered Durable Medical Equipment.

• Not of use to a person in the absence of a disease or disability.

Id. The Certificate of Coverage further specifies that "[b]enefits under this section do not include any device, appliance, pump, machine, stimulator, or monitor that is fully implanted into the body." Id.

A different section of the Certificate of Coverage outlines "Exclusions and Limitations." UHC 203. The exclusions include "Experimental or Investigational and Unproven Services." UHC 206. The Certificate of Coverage specifically defines both "Experimental or Investigational Service(s)," UHC 250, as well as "Unproven Service(s)," UHC 258. As to the former, the Certificate of Coverage defines "Experimental or Investigational Service(s)" as:

medical, surgical, diagnostic, psychiatric, mental health, substance-related and addictive disorders or other health care services, technologies, supplies, treatments, procedures, drug therapies, medications or devices that, at the time a determination is made regarding coverage in a particular case, are any of the following:

• Not approved by the U.S. Food and Drug Administration (FDA) to be lawfully marketed for the proposed use and not identified in the American Hospital FormularyService or the United States Pharmacoepia Dispensing Information as appropriate for the proposed use.

• Subject to review and approval by any institutional review board for the proposed use. (Devices which are FDA approved under the Humanitarian Use Device exemption are not considered to be Experimental or Investigational.)

• The subject of an ongoing clinical trial that meets the definition of a Phase I, II or III clinical trial set forth in the FDA regulations, regardless of whether the trial is actually subject to FDA oversight.

UHC 250. As to the latter, the Certificate of Coverage defines "Unproven Service(s)" as:

Services, including medications, that are not effective for treatment of the medical condition and/or not to have [sic] a beneficial effect on health outcomes due to insufficient and inadequate clinical evidence from well-conducted randomized clinical trials or cohort studies in the prevailing published peer-reviewed medical literature.

• Well-conducted randomized clinical trials. (Two or more treatments are compared to each other, and the patient is not allowed to choose which treatment is received.)

• Well-conducted cohort studies from more than one institution. (Patients who receive study treatment are compared to a group of patients who receive standard therapy. The comparison group must be nearly identical to the study treatment group.)

UHC 258.³

The Certificate of Coverage goes on to explain that Defendant UHC has "a process by which we compile and review clinical evidence with respect to certain health services. From time to time, we issue medical and drug policies that describe the clinical evidence available with respect to specific health services. These medical and drug policies are subject to change without prior notice." Id.

Specifically, Defendant UHC promulgates a document called the "Omnibus Codes." UHC 353. The Omnibus Codes are a "Medical Policy [that] provides assistance in interpreting [Defendant UHC's] benefit plans." Id. However, the Omnibus Codes dictate that "[w]hen deciding coverage, the member specific benefit plan document must be referenced." Id. Indeed, the Omnibus Codes state that "[t]he terms of the member specific benefit plan document (e.g., Certificate of Coverage (COC), Schedule of Benefits (SOB), and/or Summary Plan Description (SPD)) may differ greatly from the standard benefit plan upon which this Medical Policy is based." Id. The Omnibus Codes also state that "[i]n the event of a conflict, the member specific benefit plan document supersedes this Medical Policy." Id.

The Omnibus Codes discuss the "MyoPro myoelectric limb orthosis

," the medical device at the center of the instant case. UHC 449. The Omnibus Codes state that "[t]he use of the upper limb orthotic known as the MyoPro orthosis is unproven and not medically necessary due to insufficient clinical evidence and/or efficacy in published peer-reviewed medical literature." Id. To justify this conclusion, the Omnibus Codes discuss three separate publications that concluded, inter alia , that "[a]dding MyoPro to supervised therapy provided little to no additional benefit"; that "myoelectric bracing may be more beneficial than [repetitive task practice] only in improving self-reported function and perceptions of overall recovery"; and that "therapist supervised task-specific practice with an integrated robotic device could be as efficacious as manual practice in some subjects with moderate upper extremity impairment." Id. Defendant UHC also promulgates a "Coverage Determination Guideline" that discusses coverage for "Durable Medical Equipment" such as orthotics and "Prosthetic Devices ... [and] Myoelectric Limbs." UHC 339–52.

2. Independent Medical Review Process

The Certificate of Coverage provides for an internal appeals process for adverse determinations made by Defendant UHC. UHC 227. The Certificate of Coverage also contemplates an "Independent External Review Program." UHC 229. Specifically, the Certificate of Coverage explains that "[i]f we deny Benefits because it was determined that the treatment is not Medically Necessary or was an Experimental, Investigational or Unproven...