Opinion

L. v. Excellus Blue Cross Blue Shield

Court: District Court, W.D. New York
Filed: Mar 19, 2020
Cited by: 0 cases
Authority: More cited than 27.8%

“The reasonableness of this decision is further confirmed by the external review sought by [the plaintiff], which agreed with Oxford’s denial of coverage.”

How later courts described this case

“The reasonableness of this decision is further confirmed by the external review sought by [the plaintiff], which agreed with Oxford’s denial of coverage.”
“[T]he Plan provides that Oxford has discretion to deny coverage for any health care service that it determines, in its ‘sole judgment,’ to not be medically necessary.”
cognizable Parity Act claim where plan included blanket exclusion for services rendered at wilderness treatment
not arbitrary and capricious to afford no “special weight” to treatment providers despite contrary opinions between treatment providers and reviewing physicians

Written by the judges who cited it.

The opinion

ATES DISTR

KP FILED Lp

UNITED STATES DISTRICT COURT a □□

WESTERN DISTRICT OF NEW YORK MAR 1 9 2020

ty, □

LOEWENGUIA oF

TERN DISTRICT ©

JULIE L., individually and as guardians of Q.M.,

a minor, and RICHARD M., individually and as

guardians of O.M., a minor,

Plaintiffs, DECISION AND ORDER

V. 6:18-CV-06753 EAW

EXCELLUS HEALTH PLAN, INC., doing

business as EXCELLUS BLUECROSS

BLUESHIELD and THE UNIVERSITY

OF ROCHESTER HIGH DEDUCTIBLE

HEALTH PLAN, □

Defendants.

INTRODUCTION

Plaintiffs Julie L. and Richard M. (collectively, “Plaintiffs’”) filed this action against

defendants Excellus Health Plan, Inc., doing business as Excellus BlueCross BlueShield

(“Excellus”) and the University of Rochester High Deductible Health Plan (“the Plan”)

(collectively, “Defendants”’), on behalf of Q.M., their minor child. (Dkt. 1). Q.M. has a

long history of mental health issues. (See Dkt. 62 at 3-4). Q.M. received services from

BlueFire Wilderness Therapy (“BlueFire”) and Boulder Creek Academy (“BCA”). (Dkt.

At oral argument held on December 4, 2019, the parties agreed that Defendants

should be properly named as Excellus Health Plan, Inc., doing business as Excellus

BlueCross BlueShield and the University of Rochester High Deductible Health Plan.

Accordingly, the Clerk of Court is hereby directed to amend the caption as noted.

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60-3 at 2,5). Excellus denied Plaintiffs’ requests for coverage of both services. (Dkt. 65-2

at 157-62; Dkt. 65-5 at 120-24).

Plaintiffs’ Second Amended Complaint alleges two causes of action: (1) a claim

pursuant to the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C.

§ 1132(a)(1)(B), seeking recovery of benefits owed to Q.M. under the Plan; and (2) a claim

alleging violation of the Mental Health Parity and Addiction Equity Act of 2008 (“Parity

Act”), pursuant to 29 U.S.C. § 1132(a)(3). (Dkt. 52).

Both parties moved for summary judgment. (Dkt. 60; Dkt. 63). Based on the record

before the Court, the Court finds Excellus’s determinations that services at BlueFire and

BCA were not medically necessary were not arbitrary and capricious. Additionally, the

Court finds there are no genuine issues of material fact as to Plaintiffs’ Parity Act claim.

Accordingly, the Court grants Defendants’ motion for summary judgment (Dkt. 60), and

denies Plaintiffs’ motion for summary judgment (Dkt. 63).

BACKGROUND

IL Factual Background

A. The Plan

Q.M. is a covered beneficiary under the Plan,” which is a self-funded employee

welfare benefits plan. (Dkt. 60-3 at {9 3, 4; Dkt. 70 at 49 3, 4). Excellus is a third-party

claims administrator of the Plan, pursuant to the terms of the Administrative Services

Contract (“ASC”). (Dkt. 60-3 at 95; Dkt. 70 at The Plan states that it “will provide

2 Q.M.’s mother, Julie L., is employed by the University of Rochester and is a

participant in the Plan. (Dkt. 60-3 at 4 2; Dkt. 70 at § 2).

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coverage for the covered benefits described in [its] Booklet as long as the hospitalization,

care, service .. . [or] treatment, is Medically Necessary.” (Dkt. 65-1 at 19). The Plan also

provides that Excellus “will decide whether care was Medically Necessary,” and in making

that determination, Excellus may consider:

A. □ Reports in peer reviewed medical literature;

B. Reports and guidelines published by nationally recognized health care

organizations that include supporting scientific data;

C. Professional standards of safety and effectiveness, which are

generally recognized in the United States for diagnosis, care, or

treatment;

D. The opinion of health professionals in the general recognized health

specialty involved;

E. The opinion of the attending Professional Providers, which have

credence but do not overrule contrary opinions; and

F, Any other relevant information brought to its attention.

(Id.). Additionally, under the terms of the Plan, services are “medically necessary” only

if:

A. They are appropriate and consistent with the diagnosis and treatment

of your medical condition;

B. They are required for the direct care and treatment or management of

that condition;

C. If not provided, your condition would be adversely affected;

D. They are provided in accordance with community standards of good

medical practice;

E. They are not primarily for the convenience of you, your family, the

Professional Provider, or another provider;

F, They are the most appropriate service and rendered in the most

efficient and economical way and at the most economical level of care

which can safely be provided to you; and

G. When you are an inpatient, your medical symptoms or conditions are

such that diagnosis and treatment cannot safely be provided to you in

any other setting (e.g., outpatient, physician’s office, or at home).

(Id. at 19-20).

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B. Q.M.’s Treatment History

The following facts are taken from Plaintiffs’ letter submitted to Excellus as a part

of their appeal of the denials of BlueFire and BCA services. Q.M. received mental health

treatment since the age of four, and prior to entering BlueFire, Q.M. received mental health

care from seven psychologists and four psychiatrists. (Dkt. 65-5 at 3). Q.M.’s history of

diagnoses include: attention-deficit hyperactivity disorder; generalized anxiety disorder;

oppositional defiant disorder; narcissistic personality disorder traits; borderline personality

disorder traits; Tourette syndrome/tic disorder; and dysgraphia/impairment in written

expression. (Dkt. 65-2 at 8).

In December 2015, Q.M. was admitted to the Child and Adolescent Hospitalization

Program at Strong Behavioral Health after showing aggressive behaviors at home. (/d. at

22). Upon Q.M.’s discharge from the hospital in January 2016, Q.M.’s high school’s

Committee on Special Education decided it would be best to place Q.M. at a therapeutic

day school, where Q.M. would receive personalized instruction and individualized and

group counseling. (/d. at 46). Q.M. attended the therapeutic day school until April 15,

2016. (/d.).

Sometime in April 2016, Plaintiffs found Q.M.’s Instagram messages showing he

was attempting to purchase a hand gun. (/d. at 143). Plaintiffs reported this to the police

and upon the police’s arrival, Q.M. implored they “shoot [him].” (/d.; Dkt. 65-3 at 27).

The police made a mental hygiene arrest and admitted Q.M. to a psychiatric unit. (Dkt.

65-2 at 143). As a result, Plaintiffs subsequently entered Q.M. into BlueFire on April 20,

2016. (d.).

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C. BlueFire Services

Q.M. resided at Bluefire between April 20, 2016, and June 29, 2016. (Dkt. 60-3 at

47; Dkt. 70 at { 7). Bluefire is an “outdoor behavioral program for teens and young adults

with mental health or substance abuse problems” located in Idaho. (Dkt. 52 at 1; Dkt. 60-3

at | 8; Dkt. 70 at 98). While at BlueFire, Q.M. received equine, individual, and group

therapy. (See Dkt. 65-2 at 51-89).

On October 26, 2016, Plaintiffs requested authorization for BlueFire services. (See

Dkt. 65-1 at 199). On November 7, 2016, Excellus issued an Initial Adverse Determination

denying the BlueFire services as not medically necessary. (Dkt. 60-3 at § 9; Dkt. 70 at

49). Excellus cited the InterQual Level of Care Criteria (“InterQual Criteria”),? which

provides:

mental health residential treatment is considered medically necessary when

a member’s clinical documentation shows clinical indications supporting a

current mental health disorder with severe symptoms requiring long-term

3 The InterQual Criteria are nationally recognized, third-party guidelines designed to

“help healthcare organizations assess the safest and most clinically appropriate care level

for more than 95% of reasons for admission.” Change Healthcare, InterQual Level of Care

Criteria, https://www.changehealthcare.com/solutions/interqual/level-of-care-criteria.

As noted by Plaintiffs (Dkt. 72 at 6), these types of guidelines have been found to

be appropriately relied on by plan administrators. See Norfolk Cty. Ret. Sys. v. Cmty.

Health Sys., 877 F.3d 687, 690 (6th Cir. 2017) (‘To determine whether a person needs

inpatient or outpatient care, most hospitals use one of two systems: the InterQual Criteria

or the Milliman Care Guidelines. Both were developed by independent companies with no

financial interest in admitting more inpatients than outpatients. The InterQual Criteria were

written by a panel of 1,100 doctors and reference 16,000 medical sources.”); Stephanie C.

v. Blue Cross Blue Shield of Mass. HMO Blue, Inc., 852 F.3d 105, 114 (1st Cir. 2017)

(“BCBS reviewers reasonably consult the InterQual Criteria, which are nationally

recognized, third-party guidelines. The criteria provide a sensible structure for analyzing

a patient’s particular symptoms, diagnoses, risks, and circumstances to determine what

level of medical care is medically necessary.”’).

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treatment that can not be managed at a less intensive level of care. Clinical

must also include specific symptoms or behaviors indicating social risk

factors over [the] past month. Additionally, members must have no one that

can safely provide support outpatient.

(Dkt. 65-1 at 199). Excellus noted that the clinical information did “not indicate a severe

mental health disorder with symptoms,” nor did it indicate “that there was any substance

abuse and/or illegal activity, such as arrest, in the one week prior to admission.” (Id. at

200). Excellus further noted that “the family was very supportive,” and that it was “not

clear... that [Q.M.] could not have been managed successfully in a less structured level

of care, such as mental health partial hospitalization treatment.” (/d.). Plaintiffs’ request

was denied as “not medically necessary at this time.” (/d. at 199).

Plaintiffs appealed the Initial Adverse Determination on May 1, 2017. (Dkt. 60-3

at 12; Dkt. 70 at § 12). Excellus upheld the adverse determination in its June 3, 2017,

Final Adverse Determination and October 5, 2017, corrected Final Adverse Determination.

(Dkt. 60-3 at J] 13, 14; Dkt. 70 at 9913, 14). Excellus again stated that the clinical

information provided by BlueFire did not satisfy the InterQual Criteria, and that “[t]here

was no evidence . .. the current psychiatric diagnosis was unable to be managed safely at

a less intensive level of care.” (Dkt. 65-2 at 102). Additionally, Excellus noted that

BlueFire did not meet InterQual’s minimum requirements for Adolescent and Child

Psychiatry Mental Health Residential Treatment Programming, noting that QM: did not

have a “multidisciplinary team plan in one week”; did not undergo a psychiatric evaluation

within the first 24 hours and weekly thereafter; and did not undergo a psychosocial

assessment within 48 hours of admission. (/d.). However, recognizing Q.M.’s condition

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required “both individual and group therapy,” Excellus offered “to provide coverage for

psychiatric visits if billed separately from the residential component.” (/d. at 103).

Plaintiffs requested an Independent External Review on September 27, 2017. (/d.

at 106). An expert reviewer at Independent Medical Expert Consulting Services, Inc.

(“IMEDECS”), an independent review organization, evaluated Plaintiffs’ BlueFire claims

and upheld the denial. (/d. at 157). The reviewer cited the Plan’s “medical necessity”

criteria, noting that there was no evidence an “evaluation took place either before or during

[Q.M’s] time at BlueFire,” nor did it “appear that any other diagnoses were considered that

could fully explain [Q.M.’s] long history of disruptive and oppositional behaviors.” (Jd. at

161). The reviewer also cited the InterQual Criteria, noting that “[d]ue to the paucity of

notes, it is not exactly clear what symptoms were present prior to either of [Q.M.’s]

psychiatric hospitalizations.” (/d.). Additionally, the reviewer noted that Q.M.’s diagnoses

and prescribed medications “[did] not fully match what was listed in [BlueFire’s] available

discharge summary,” and that there was no information regarding Q.M.’s “mood, affect

and thoughts of suicidal or homicidal ideation.” (/d.). As result, the reviewer concluded

there was a “lack of supporting information to suggest that [Q.M.’s] symptoms could only

be managed in a wilderness program.” (/d.).

D. BCA Services

After his discharge from BlueFire, Q.M. resided at BCA for almost one year—

between June 29, 2016, and June 5, 2017. (Dkt. 60-3 at | 26; Dkt. 70 at 7 26). BCA □□□

“therapeutic boarding school specializing in treating adolescents between the ages of 13-18

with academic, behavioral, and mental health challenges,” also located in Idaho. (Dkt.

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60-3 at { 26; Dkt. 70 at { 26). While at BCA, Q.M. attended academic classes and received

individual and group therapy. (Dkt. 65-3 at 57-250; Dkt. 65-4 at 1-117).

On December 9, 2016, Plaintiffs requested authorization for BCA services. (See

Dkt. 65-3 at 16). On December 20, 2016, Excellus issued an Initial Adverse Determination

denying the BCA services as not medically necessary. (Dkt. 60-3 at § 28; Dkt. 70 at § 28).

Excellus cited the InterQual Criteria, noting that the clinical information provided by BCA

did not provide “enough information to determine that [Q.M.] could not have been

managed at a lower level of care,” and that it was “very limited regarding the reason for

admission or to assess the need for ongoing services at the residential treatment level of

care.” (Dkt. 65-3 at 16-17). Specifically, there were no “details of behavioral control, level

of hostile interactions, level of refractory medication treatment or level of function

specifics to demonstrate why the admission to [BCA] was medically necessary.” (Id. at

17).

Plaintiffs appealed the Initial Adverse Determination on June 7, 2017. (Dkt. 60-3

at 30; Dkt. 70 at § 30). Excellus issued a Final Adverse Determination on June 24, 2017,

upholding the adverse determination. (Dkt. 60-3 at 431; Dkt. 70 at 31). Excellus noted

that BCA did “not meet the criteria for a residential treatment program; it is not licensed

by an office of mental health in Idaho, and it is not CARF (Commission of Rehabilitation

Facilities) or JACHO (Joint Committee for Accreditation of Healthcare Organizations)

certified and [BCA] call[ed] themselves a school.” (Dkt. 65-4 at 231). Excellus also noted

that BCA’s “staffing and therapy notes are sparser than would demonstrate the expectations

of levels of mental health group and/or individual therapy.” (/d.). Excellus concluded the

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“facility [did] not meet the criteria of, nor [were] they providing mental health treatment,”

and denied the services as not “medically necessary.” (Jd).

Plaintiffs requested an Independent External Review on October 16, 2017. (Dkt.

65-5 at 2). An IMEDECS expert reviewer evaluated Plaintiffs’ BCA claims and upheld

the denial of coverage. (/d. at 120). The reviewer concluded the services were not

medically necessary, noting:

[Q.M.] had been through a wilderness program for 4 weeks prior to

admission and his aggression had decreased. [Q.M.] was not actively

suicidal, homicidal or psychotic on admission. He was motivated for

treatment and his family was supportive. While at the facility, he was

actively engaged in treatment, family was involved and supportive and he

was medication compliant. [Q.M.] did go to group, individual and family

therapy while in residential treatment and was generally in behavioral

control. He was working on coping skills for mood and social skills. [Q.M.]

went on multiple passes with family which generally went well. There were

no other acute medical concerns. There were no acute substance abuse

concerns, He had one episode of property destruction while there, but [Q.M.]

was not engaging in severe crisis behaviors to warrant around the clock

monitoring from 6/30/16-6/5/17.

(Id. at 124).

i. Procedural Background

Plaintiffs commenced this action on April 20, 2018, in the United States District

Court for the District of Utah. (Dkt. 2). On October 5, 2018, Plaintiffs filed a stipulated

motion to change venue. (Dkt. 18). The District Court in Utah granted the motion and

ordered the case transferred to this District. (Dkt. 19). On October 29, 2018, the case was

reassigned to the undersigned. (Dkt. 22).

Defendants moved for summary judgment on July 31, 2019 (Dkt. 60), and Plaintiffs

moved for summary judgment on August 1, 2019 (Dkt. 63). On August 28, 2019, both

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parties responded in opposition. (Dkt. 68; Dkt. 69). On September 11, 2019, both parties

filed replies. (Dkt. 71; Dkt. 72). Oral argument was held before the undersigned on

December 4, 2019, and the Court reserved decision. (Dkt. 75).

DISCUSSION

1 Standard of Review for Denial of Benefits Claim

In an ERISA benefits claim, “the court must first determine the standard of review

governing plaintiff's denial of disability benefits under the Plan.” Olabopo v. 1199 SEIU,

No. 10-CV-1317 (DLD(LB), 2011 WL 1204749, at *3 (E.D.N.Y. Mar. 29, 2011). “[A]

denial of benefits challenged under [ERISA] 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.” Firestone Tire &

Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989).

Under the latter scenario, “denials may be overturned as arbitrary and capricious

only if the decision is without reason, unsupported by substantial evidence or erroneous as

a matter of law.” Fay v. Oxford Health Plan, 287 F.3d 96, 104 (2d Cir. 2002) (quotation

omitted). Substantial evidence “is such evidence that a reasonable mind might accept as

adequate to support the conclusion reached by the [decisionmaker and] . . . requires more

than a scintilla but less than a preponderance.” Miller v. United Welfare Fund, 72 F.3d

1066, 1072 (2d Cir. 1995) (citation omitted).

“The plan administrator bears the burden of proving that the arbitrary and capricious

standard of review applies, since ‘the party claiming deferential review should prove the

predicate that justifies it.’” Kinstler v. First Reliance Standard Life Ins. Co., 181 F.3d 243,

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249 (2d Cir. 1999) (citation omitted). Under the deferential arbitrary and capricious

standard of review, courts are limited to the administrative record, Miller, 72 F.3d at 1071,

and may not “substitute [their] own judgment for that of the [plan administrator] as if they

were considering the issue of eligibility anew,” Pagan v. NYNEX Pension Plan, 52 F.3d

438, 442 (2d Cir. 1995). “In short, the question is not whether the record would have

permitted a plan administrator to find otherwise, but whether the record compelled the

different conclusion urged by [plaintiff].” Kruk v. Metro. Life Ins. Co., 567 F. App’x 17,

20 (2d Cir. 2014).

Here, the parties disagree on the applicable standard of review. Plaintiffs argue the

de novo standard of review is appropriate because there is no explicit language in the Plan

demonstrating that Excellus retained discretionary authority to interpret the terms of the

Plan. (Dkt. 62 at 8). Plaintiffs argue that the only language that could be construed to

convey such authority is found in the ASC, which is inadequate because only the language

contained in the Plan itself may confer such authority. (/d. at 8-10). By contrast,

Defendants cite Thurber v. Aetna Life Insurance Co., 712 F.3d 654, 659 (2d Cir. 2013),

abrogated on other grounds by Montanile v. Bd. of Trs. of the Nat’l Elevator Indus. Health

Benefit Plan, 136 S. Ct. 651 (2016), and argue that language in the ASC may confer

discretionary authority. (Dkt. 68-1 at 6). Defendants also argue that there is sufficient

language in the Plan itself to confer discretionary authority. (Id. at 7).

The Court concludes that the Plan plainly and clearly grants discretion to Excellus

as the Plan Administrator, and thus the arbitrary and capricious standard of review applies.

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Under Section Eighteen — General Provisions, part 11 “Eligibility for Benefits,” the Plan

provides:

A determination by [Excellus] with respect to eligibility for benefits under

this Program or the construction of any of the terms of this Program which

may apply in any way to any claim you might make, or any rights you might

have, under this Program shall be final and binding on you so long as the

determination or construction is not arbitrary and capricious.

(Dkt. 65-1 at 97 (emphasis added)). Similar language conveying final decision-making

authority to the administrator has been found to warrant arbitrary and capricious review.

See, e.g., Pagan, 52 F.3d at 441 (denial of benefits reviewed under arbitrary and capricious

standard of review where plan included the following language: “[The Committee] shall

determine conclusively for all parties all questions arising in the administration of the [Plan]

and any decision of such Committee shall not be subject to further review.... [The

Committee] shall serve as the final review committee, under the [Plan], for the review of

all... claims by participants.” (emphasis added)); E.R. v. UnitedHealthcare Ins. Co., 248

F. Supp. 3d 348, 359 n. 4 (D. Conn. 2017) (“We have the sole and exclusive discretion to

. [iJnterpret Benefits under the Policy,” “[iJnterpret the other terms, conditions,

limitations and exclusions set out in the Policy,” and “[m]Jake factual determinations

relating to the Policy and its Benefits”); S.M. v. Oxford Health Plans (N.Y.), Inc., 94 F.

Supp. 3d 481, 508 (S.D.N.Y. 2015) (“[T]he Plan provides that Oxford has discretion to

deny coverage for any health care service that it determines, in its ‘sole judgment,’ to not

be medically necessary.”), aff'd, 644 F. App’x 81 (2d Cir. 2016).

Additionally, under Section Eighteen, part 19 “Right to Develop Guidelines and

Administrative Rules,” the Plan provides that Excellus “may develop or adopt standards

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which describe in more detail when payments will or will not be made under the [Plan],”

and that Excellus “shall have all the powers necessary or appropriate to carry out [its]

respective duties in connection with the administration of the [Plan].” (Dkt. 65-1 at 100).

Similar language conveying to the administrator the authority to adopt standards relevant

to the administration of the plan has been found sufficient to warrant arbitrary and

capricious review. See, e.g., Krauss v. Oxford Health Plans, Inc., 517 F.3d 614, 622 (2d

Cir. 2007) (denial of benefits reviewed under arbitrary and capricious standard of review

where plan included the following language: “[The Administrator] may adopt reasonable

policies, procedures, rules, and interpretations to promote the orderly and efficient

administration of this Certificate.”); Benjamin v. Oxford Health Ins., Inc., No. 3:16-cv-

00408 (CSH), 2018 WL 3489588, at *6 (D. Conn. July 19, 2018) (same language as in

Krauss); Dorato v. Blue Cross of Western New York, Inc., 163 F. Supp. 2d 203, 210

(W.D.N.Y. 2001) (“We may develop or adopt standards which describe in more detail

when we will make or will not make payments under this Contract ... We shall have all

the powers necessary or appropriate to enable us to carry out our duties in connection with

the administration of this Contract... .”).

Plaintiffs cite Stephanie C. v. Blue Cross Blue Shield of Mass. HMO Blue, Inc., 813

F.3d 420 (1st Cir. 2016) to argue the language contained in the Plan does not confer

arbitrary and capricious review. (Dkt. 69 at 6-7). In Stephanie C., the language at issue

provided that “[the Administrator] decides which health care services and supplies that you

receive (or you are planning to receive) are medically necessary and appropriate for

coverage.” Id. at 428. The First Circuit found this language to “restate[] the obvious: that

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no benefits will be paid if [the Administrator] determines they are not due” because all

plans “require an administrator first to determine whether a participant is entitled to

benefits before paying them.” Jd. (citation omitted). In contrast, here, the language

provides that Excellus’s determination would be “final and binding” as long as it “is not

arbitrary and capricious.” (Dkt. 65-1 at 97). This language plainly and clearly

contemplates an eligibility determination beyond the initial determination, unlike the

language in Stephanie C. As such, Stephanie C. is distinguishable. Accordingly, the Court

finds the arbitrary and capricious standard of review applies.

II. __Excellus’s Denials of Benefits for BlueFire and BCA Services Were Not

Arbitrary and Capricious

Plaintiffs argue that Excellus’s reliance on the InterQual Criteria in determining that

BlueFire and BCA services were not medically necessary was in error because where

“undisclosed external medical necessity criteria are at odds with the actual terms of the

Plan, the language of the Plan documents must prevail.” (Dkt. 69 at 7-8). Plaintiffs assert

that had Excellus relied on the Plan’s medical necessity criteria and not the InterQual

Criteria, Excellus would have found BlueFire and BCA services were medically necessary.

(See Dkt. 72 at 6-7).

As an initial matter, the InterQual Criteria are not undisclosed. The Plan expressly

permits Excellus to consider such criteria when determining whether a service is medically

necessary. (See Dkt. 65-1 at 19 (in determining medical necessity, Excellus may review

“[rJeports and guidelines published by nationally recognized health care organizations that

include supporting scientific data”)).

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Turning to the specifics of Plaintiffs’ arguments, Plaintiffs do not identify how the

Plan’s medical necessity criteria conflict with the InterQual Criteria.4 Upon its own review,

the Court finds the Plan’s criteria are consistent with the InterQual Criteria. (Compare

Dkt. 65-1 at 199 (InterQual Criteria, in part, require that “member’s clinical documentation

shows clinical indications supporting a current mental health disorder with severe

symptoms requiring long-term treatment that can be managed at a less intensive level of

care”), with id. at 20 (medical necessity criteria under the Plan requires, in part, “[w]hen

you are an inpatient, your medical symptoms or conditions are such that diagnosis and

treatment cannot safely be provided to you in any other setting”)). The mere fact that the

InterQual Criteria includes criteria not articulated in the Plan does not mean that the

4 Plaintiffs cite Wit v. United Behavioral Health, No. 14-cv-02346-JCS, 2019 WL

1033730 (N.D. Cal. Mar. 5, 2019) to argue Excellus improperly relied on the InterQual

Criteria. (Dkt. 72 at 7). Wit does not support Plaintiffs’ argument. In Wit, the defendant’s

internally-developed guidelines were found to deviate from the accepted standards of care

through its: “presenting problems requirement,” which required that “upon admission,

there .. . be a reasonable expectation that services will improve the member’s ‘presenting

problems’ within a reasonable time”; and “why now requirement,” which required the

“reason [why] the patient required a higher level of care,” separate and apart from showing

that the patient “could not be ‘treated in a less intensive setting.’” Jd. at *26. The

defendant’s internally-developed guidelines were found to have prioritized cost-cutting

over the interests of plan members. Jd. at *53. In fact, there was evidence that the

defendant had “included administrators from its Finance and Affordability Departments on

the committees that ultimately approve[d] [its] [g]uidelines.” Jd. at *53.

Here, Plaintiffs do not argue that the terms of the Plan’s medical necessity criteria

or the InterQual Criteria similarly require acute symptoms like the “presenting problems”

and “why now” requirements in Wit. Additionally, in Wit, reliance on nationally

recognized third-party guidelines was not at issue. In fact, the Wit guidelines were found

to have deviated from the accepted standard of care, which was properly interpreted by

“consensus guidelines from professional organizations,” among other sources. Jd. at

*14-15. As such, Plaintiffs reliance on Wit for the proposition that Excellus improperly

relied on the InterQual Criteria is misplaced.

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InterQual Criteria are more restrictive. The Plan provides that services are medically

necessary when “appropriate and consistent” with the treatment of the condition and “in

accordance with community standards of good medical practice.” (Dkt. 65-1 at 19-20).

As such, the InterQual Criteria help interpret what treatment is “appropriate and consistent”

and “in accordance with community standards.”

Excellus determined BlueFire’s services were not medically necessary because

there was no clinical indication demonstrating: (1) Q.M.’s current psychiatric diagnosis

could not be managed safely at a less intensive level of care; and (2) specific symptoms or

behaviors indicating social risk factors over the past month. (Dkt. 65-2 at 102). Moreover,

Excellus noted there was “no documentation of a psychiatric evaluation within the first 24

hours and weekly thereafter.” (d.).

The reasonableness of Excellus’s denial is confirmed by the external review sought

by Plaintiffs, which upheld the denial of coverage. (Dkt. 65-2 at 157-62). See SM. v.

Oxford Health Plans, 644 F. App’x 81, 84 (2d Cir. 2016) (“The reasonableness of this

decision is further confirmed by the external review sought by [the plaintiff], which agreed

with Oxford’s denial of coverage.”); Halberg v. United Behavioral Health, No. 16-CV-

6622 (MKB) (SJB), 2019 WL 4784571, at *19 (E.D.N.Y. Sept. 30, 2019) (“That MCMC,

an independent and external reviewer, upheld Defendant’s decision further demonstrates

that Defendant acted reasonably.”). The reviewer is a “medical doctor (MD) board

certified in psychiatry and child and adolescent psychiatry with an active practice” and “a

supervisor at an outpatient facility treating adults and children[,]” who has been “published

in books.” (Dkt. 65-2 at 158). The reviewer noted that symptoms of Q.M.’s diagnoses at

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discharge were not the listed symptoms that resulted in his admission to BlueFire. (Jd. at

160-61). The reviewer also noted there was no psychiatric admission note nor a

comprehensive psychiatric evaluation before or during Q.M.’s stay at BlueFire to

demonstrate “[Q.M.’s] symptoms could only be managed in a wilderness program.” (Id.

at 161).

BlueFire records do not support a finding that Q.M. could not have been managed

at a lower level of care or that there were specific symptoms or behaviors indicating social

risk. (See Dkt. 65-2 at 52 (“[Q.M.] had transition group and it went well and seemed very

positive towards being real to gain success.”), 54 (“[Q.M.] worked on communication and

leadership; [Q.M.] was able to demonstrate self care and awareness of mood changes and

the needs of food intake.”)). Q.M.’s Master Treatment Plan’s “reason for admission”

acknowledged that Q.M. had sent Instagram messages trying to buy a gun, but also noted

that Q.M. had stated “it was a joke, [and that] he was just bored.” (/d. at 65). The note

does not otherwise indicate that Q.M. was homicidal, suicidal, or a danger to others prior

to his admission to BlueFire (id.), which is consistent with his BlueFire treatment records

(see id. at 51-80). Accordingly, the Court finds it was not arbitrary and capricious for

Excellus to conclude BlueFire services were not medically necessary. See Jon N. v.

BlueCross BlueShield Mass., Inc., 684 F. Supp. 2d 190, 204 (D. Mass. 2010) (not arbitrary

and capricious to deny coverage for residential treatment facility where records indicated

that claimant was stable and not homicidal, suicidal, or a danger to others, and despite prior

history of “some self-mutilation, aggressive behaviors, and substance abuse,” no indication

claimant “displayed such behaviors within the week prior to admission”).

-17-

Turning to BCA’s services, Excellus also determined these services were not

medically necessary because: (1) “there was not enough information to determine that

[Q.M.] could not have been managed at a lower level of care such [as] psychiatric partial

hospitalization or outpatient mental health treatment”; and (2) there were no “details of

behavioral control, level of hostile interactions, level of refractory medication treatment or

level of function specifics to demonstrate why the admission to [BCA] was medically

necessary.” (Dkt. 65-3 at 16).

Again, the reasonableness of Excellus’s denial is confirmed by the external review

sought by Plaintiffs, which upheld the denial of coverage. (Dkt. 65-5 at 120-24). See S.M,,

644 F. App’x at 84; Halberg, 2019 WL 4784571, at *19. The reviewer is a “medical doctor

(MD) board certified in psychiatry and child and adolescent psychiatry with an active

practice” and an “adjunct professor at a school of medicine[,]” who has been “[p]Jublished

in peer reviewed literature.” (Dkt. 65-5 at 122). The reviewer noted that: