DeMarinis v. Anthem Insurance Companies, Inc.

THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

CHRIS DEMARINIS, individually :

and as guardian of D.D., : CIVIL ACTION NO. 3:20-CV-713

: (JUDGE MARIANI)

Plaintiff,

FILED

v. SCRANTON

APR 1.

ANTHEM INSURANCE COMPANIES, — : 10 2024

INC., d/b/a ANTHEM BLUE CROSS : Per

AND BLUE SHIELD and ABC : “BERT

CORPORATIONS 1-10, CLERK

Defendant.

MEMORANDUM OPINION

I. INTRODUCTION

Presently before the Court are cross-motions for summary judgment. Plaintiff Chris

DeMarinis (“Plaintiff”) filed a Motion for Summary Judgment (Doc. 33), as did Defendant

Anthem Insurance Companies, Inc. (“Anthem”) (Doc. 45). The underlying action arises

under the Employment Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001 ef seq. □

(“ERISA”), specifically 29 U.S.C. §§ 1109 and 1132(a)(1)(B). Plaintiff filed the action after

Defendant denied coverage for the cost of his son’s treatment at the Kennedy Krieger

Institute (“KKI") inpatient Neurobehavioral Unit (“NBU”). D.D., Plaintiff's minor son, has “a

psychiatric disorder involving very serious behavioral dysfunction and a diagnosis of

Stereotype Movement Disorder with Self-Injury, Disruptive Behavior Disorder, Autism

Spectrum Disorder, Severe Intellectual Disability and Obsessive Compulsive Disorder.”

(See, e.g., Doc. 33-2 J 8.) With his Complaint (Doc. 1) and pending Motion (Doc. 33),

Plaintiff requests that the Court require Defendant to cover the cost of D.D.’s treatment at

KKl's NBU program from May 8, 2019, to October 24, 2019, in the amount of $459,318 and

reimburse Plaintiff for the reasonable attorneys’ fees and costs incurred in this action. (Doc.

1 at 11, Doc. 33 at 1.) Defendant asserts that summary judgement in its favor is warranted

because it properly determined that D.D.’s continued treatment was not medically

necessary and denied coverage on this basis. (See, e.g., Doc. 47 at 1.) For the reasons that

follow, the Court will grant Plaintiffs Motion in part and deny Defendant's motion.

II. STATEMENT OF MATERIAL FACTS

In accordance with Local Rule 56.1 of the Middle District of Pennsylvania Rules of

Court, Plaintiff has submitted a statement of material facts in support of his motion (“PSMF”)

as to which he submits there is no genuine issue for trial. (Doc. 33-1.) Defendant

subsequently submitted its response to Plaintiff's submission (“DRPSMF’) and additional

material facts which it asserts are undisputed ("DSMF”). (Doc. 51 (Sealed).) Plaintiff then

filed a response to Defendant's additional material facts ("PRDSMEF"). (Doc. 53-1.) The

following factual recitation represents the facts agreed upon by the parties, as well as the

Court's supplementations drawn from the administrative record (“AR” or “D . . .”) (Doc. 30

. ;

through 30-18 (Sealed)) where necessary. Except where expressly noted, the following

facts of record are undisputed.*

At all material times, Plaintiff was a member of a medical plan sponsored by

_ Siemens Corporation (the “Plan”). (PSMF | 1.) Plaintiff's minor son, D.D., receives health

coverage through the Plan. (PSMF 4 4.) Defendant Anthem Insurance Companies, Inc.

d/b/a Anthem Blue Cross and Blue Shield (“Defendant’ or “Anthem’) is a Claims

Administrator for the Plan that processes claims and appeals. (PSMF §[ 2.) Specifically, the

Summary Plan Description (“Plan”) states that

[t]he Claims Administrator or Administration Committee, as applicable, has full

and exclusive discretionary authority to interpret all provisions of the Plans for

which it is designated with responsibility for determining appeals, to determine

material facts and eligibility for benefits, and to construe the terms of the

applicable Plan option. Interpretations and determinations made by the Claims

Administrator or Administrative Committed, as applicable, with respect to the

Plan option for which it is designated responsibility for determining appeals, will

be final, conclusive and binding; unless it can be shown that the interpretation

or determination was arbitrary and capricious.

(AR 198.)

The Plan requires that members have their non-emergency hospital admissions pre-

certified by the Claims Administrator. (DMSF § 109.) Benefits for hospital expenses “are not

payable unless authorized in advance.” (DSMG { 110 (quoting AR 66).)

1 The parties’ statements of fact appropriately include references to the record. The Court has

reviewed those references but, for the most part, does not repeat them here.

The Plan provides that “only Medically Appropriate services and supplies are

covered under the Plan.” (AR 98). “Medically Appropriate or Medically Necessary” is defined

in the Plan as “[a]ny generally accepted medical service or supply provided by, or under the

supervision of, a licensed doctor that is required to diagnose or treat an illness or injury.”

(AR 217.)

To determine “Medical Necessity,” Defendant references and relies on the Milliman

Care Guidelines (“MCG”). (DSMF {ff 73, 80.)

The Summary Plan Description defines “Custodial Care” as

Services that do not require the skills of professionally trained medical

personnel and are of a sheltering, protective or safeguarding nature (including

a stay in an institutional setting, at-home care or nursing services to care for

you because of age or mental or physical condition) or to assist with the

activities essential to daily living (such as walking, grooming, bathing, dressing,

getting in or out of bed, toileting, eating, preparing food, or taking medications

that can be self-administered). Custodial care is not meant to be curative or to

provide medical treatment.

(AR 213.)

KKl’s April 30, 2019, Authorization Request for funding to treat D.D. for a period of

four months in the inpatient NBU included the following profile:

[D.D. is] a 15-year-old male with a psychiatric disorder involving very serious

behavioral dysfunction[.] [D.D.] is previously diagnosed with severe Intellectual

Disability, Autism Spectrum Disorder, Disruptive Behavior Disorder not

otherwise specified, Obsessive-Compulsive Disorder, seizures, and

Macrocephaly Hypokinetic syndrome of childhood agitation. He is nonverbal

with developmental delays. [D.D.] displays persistent and frequent self-

injurious, aggressive, disruptive, destructive, and dangerous behaviors that

have significantly worsened over the past year, particularly the past 8 months.

The increase in frequency and intensity of maladaptive behaviors, particularly

aggression and self-injury, places [D.D.] and others at risk of injury on a daily

basis. The [NBU] team evaluated [D.D.] and concluded that inpatient admission

to the NBU is medically necessary as previous outpatient behavioral services

to treat his severe problem behaviors have not been successful and the danger

he presents to himself and others has persisted and increased.

Specifically, [D.D.] presents with severe aggression (punching,

pinching, hair pulling, head butting, hitting, kicking, biting others, choking,

bending others fingers backwards), self-injury (head banging, self biting,

punching, forceful dropping to knees, slamming knuckles of feet, bends back

fingers), disruptive and destructive behaviors (biting objects, breaking

objections, throwing items, climbing shelves, kicking walls, moving around in

the car), elopement (running from caregivers, leaving the home, running away

to escape demands), pica (eating of inedible objects such as nail polish,

cleaning erasers, deodorant, paper), rumination, and noncompliance. These

severe problem behaviors occur daily. While [D.D.’s] problem behavior used to

be more manageable, during the past 8 months, caregivers and providers

report that he now requires intensive management to prevent injury to others

and himself.

(AR 241.)

KKl’s Authorization Request includes summations of correspondence received from

providers. (AR 242.) Thomas D. Challman, M.D., Medical Director of Geisinger Autism &

Developmental Medicine Institute, wrote in support of [D.D.’s] admission to KKI on

December 15, 2018. After summarizing D.D’s behavioral issues and treatment, Dr.

Challman concluded that

it is medically necessary for [D.D.] to be admitted to an inpatient unit for —

stabilization. His behaviors pose significant and imminent risk to himself and

others. A prolonged stay, over 4-6 months or longer, will likely be necessary as

he will require behavioral training and medication trials, which will take time. It

is imperative that medication trials take place in a setting that is safe for [D.D.]

and his caregivers.

.. . [KKl’s NBU] is the best option for [D.D.’s] treatment, as we have

exhausted our local and regional resources.

(AR 251; see also AR 242.)

Jose Bordas, M.D., a physician in the pediatric practice which had treated D.D. since

2008, also wrote in support of D.D.'s admission to KKI’s NBU. (AR 255; see also AR 242.)

In his December 17, 2018, correspondence, Dr. Bordas stated that

[olver the past months, [D.D.’s] behavior has escalated putting his caregivers

and himself at risk for physical harm. His behaviors are unpredictable and given

his build and level of increasing strength and aggressiveness, he poses a

serious risk to those in his immediate environment.

It is medically necessary for [D.D.] to be admitted to an inpatient unit for

stabilization during a prolonged stay of 6 months or longer. This is necessary

to provide [D.D.] with behavioral therapy services, medication trials that will

take time to show results. It is imperative that when adjusting medications and

trying new forms of therapy that this be conducted in an environment that is

safe for both himself and his caregivers.

:

Ashley Daniels, MS, LBS, who had been overseeing D.D.’s behavioral treatment by

ABA Support Services, LLC, since the Spring of 2017 indicated in December 2018 that

there had been an increase in D.D.’s intensity of aggression, self-injury, property destruction

and overall tantrums over the preceding few months. (D000252; see also D000242.) After

reviewing problematic behavior and care challenges, ABA’s Clinical Director Nicholas

Eckman (writing on behalf of Ms. Daniels) stated that

[o]verall [D.D.] continues to require a high level of support and a high ratio of

adults to maintain safety. Without an increased level of support and increased

intensity of treatment it is likely that [D.D.] will continue to show high and

dangerous rates of problem behavior. Without additional support, it is likely that

[D.D.] will be at risk for a permanent out of home placement. [D.D.] would

benefit from an increased level of support where he can be more

comprehensively evaluated and receive a more comprehensive treatment

package to assist with skill building deficit areas.

At the time of the evaluation, D.D. was attending an extended school year program

at Colonial Academy 1U20 in the Autism Support classroom which is a program specifically

designed to manage students with high levels of problem behavior. (AR 241-42.) The

program was staffed 3:1 and staff members were wearing arm guards and chest plates to

protect themselves from D.D.’s aggression. (AR 242.)

The April 30, 2019, KKI correspondence noted under “Previous Interventions” that

[sjeveral behavioral plans have been implemented in the school to address

[D.D.’s] severe behavior problems. [D.D.’s] academic tasks were modified, they

followed a structured routine, he was redirected to other activities the teacher _

and aides block head banging and apply compression, and a “code [D]’ is in

effect to call for back up staff to assist in physical restraint during aggressive

and self-injurious behavior outbursts. However, his behavior problems were

noted to have increased in frequency and severity despites these interventions.

Physical restraint is increasing in the school as [D.D.] continues to engage in

new behaviors. Specifically, in the bathroom he will disrobe, fecal smear, and

refuse to get dressed and attempt to leave the bathroom naked. It takes several

staff to physically restrain him and dress him before leaving he bathroom. This

has become a pattern of behavior and occurs near daily. [D.D.] continues to

urinate and have bowel movements on the floor as a result.

[D.D.] was hospitalized in the emergency department at St. Luke’s

Hospital as a result of his worsening episodes of head banging, aggression and

self-injury at school.

(AR 243.)

7 .

KKI assessed D.D.s risks, stating that his

severe problem behaviors place him and others at severe risk of injury on a

daily basis. Caregivers and teachers routinely sustain injuries, such as bruises,

cuts, scratches, hits, and kicks. [D.D’s] 1:1 aide at school has a permanently □

‘damaged forearm muscle as a result of his bites. [D.D.] has sustained nose

bleeds, bruises, scratches, lacerations, a chipped tooth, black and swollen

eyes, bite marks, broken skin, and cracked toenails from his self-injury and

head banging. [D.D.] is at risk to himself of concussion, retinal detachment or

severe injury from head banging, as well as elopement from caregivers into

streets and attempt to get out of moving vehicles.

(AR 244.)

KKI described the risk of lack of hospitalization as follows:

Without immediate and intensive inpatient treatment at a specialized facility,

[D.D.’s] maladaptive behaviors will only become more severe and treatment

resistant, and will further prohibit him from being able to function at home or in

the community. His current behavioral and medical providers have noted that:

[D.D,’s] behavior has not responded adequately to available outpatient

psychiatric and behavioral treatment, and has worsened in the past 8 months.

Each provider has noted that [D.D.’s] behavior is too complex and dangerous

to treat on an outpatient basis and that he requires a specialized, long-term

inpatient hospitalization to effectively treat his maladaptive behaviors,

particularly aggression and self-injury. Based upon [D.D’.s] serious, persistent

and escalating behavioral problems, coupled with his lack of response to past

and current treatments, the NBU team has determined that [D.D.] presents

considerable and ongoing risk to himself and others for serious bodily injury.

We are therefore requesting authorization for admission to the Kennedy

Krieger Institute's Neurobehavioral Unit. Given [D.D.’s] complicated behavioral

profile and the treatment-resistant nature of his problem behaviors, a four-

month admission to the program will be needed to adequately assess these

behaviors, develop an effective treatment, generalize the treatment across

settings, and train care providers.

[D.D.] has received behavioral and psychiatric services to address his

severe behavior problems; however, these less intensive treatments have

failed and his behavior problems have worsened.

8 .

(AR 244-45.) oe

In response to KKI’s authorization request for a four-month course of treatment,

Anthem granted coverage of treatment for five days, and later, granted a two-day extension.

(PSMF ¥ 35.) D.D. was admitted to the NBU on May 1, 2019. (PSMF {| 36.) May 2, 2019,

correspondence from Anthem indicates that D.D. was approved for five days of inpatient

care at KKI, i.e., from May 1, 2019, to May 5, 2019. (AR 829.)

The KK! admission records provide as follows:

[D.D.] is a fifteen-year-old boy he was admitted to the NBU for assessment and

treatment of severe aggression (punching, pinching, hair pulling, head butting,

hitting, kicking, biting others, choking, binding others fingers backwards), self-

injury (head banging, self biting, punching, forceful dropping to knees,

slamming knuckles of feet, bends back fingers), disruptive and destructive

behaviors (biting objects, breaking objects, throwing items, climbing shelves,

kicking walls, moving around in the car), elopement (running from caregivers,

leaving the home, running away to escape demands), pica (eating of inedible

objects such as nail polish, cleaning erasers, deodorant, paper) rumination and

noncompliance.

(AR 424; see also PSMF { 37.) . . .

The admission goals were identified as follows: “to develop a treatment that reduces

[D.D.’s] problem behaviors by at least 80 percent from preliminary treatment, generalize the

treatment to other settings and care providers, and to train the parents and care providers to

accurately implement the treatment program.” (See, e.g., AR 710; see also PSMF { 37.)

May 7, 2019, correspondence from Anthem indicates that two additional days of care

were approved, i.e, D.D. was authorized to receive inpatient care at KKI for May 6, 2019,

May 7, 2019. (AR 853.)

Anthem denied coverage for KKI treatment beyond May 7, 2019. (PSMF 36.) In its

May 10, 2019, correspondence to D.D., Anthem explained why the request was not

approved:

You went to the hospital due to a risk of harming yourself. Your doctor has

asked to extend your stay. The plan clinical criteria considers hospital care

medically necessary for those who are an imminent danger to themselves. The

information we have shows you have improved and you are stable enough to

be safely treated outside of a hospital. You are not at risk of harming yourself.

For this reason, the request for you to remain in the hospital is denied as not

medically necessary. There may be other treatment options to help you, such

outpatient services. .. . It may help you to know that we reviewed this

_ request using MCG Guideline Inpatient Behavioral Health Level of Care, Child

or Adolescent (ORG: B-902-IP).

(AR 228.)

Following the denial, a level one expedited appeal was submitted and Anthem

upheld the denial. (PSMF { 39.) Anthem’s health plan Medical Director, Charlisa Allen,

M.D., reviewed the appeal, Anthem records indicating that the reason for the referral was

“Reached maximum benefit.”2 (AR 757.) Dr. Allen’s note lists rates of problem behaviors

2 The Court notes that Anthem’s internal records found in the Administrative Record at pages 753

through 790 contain information material to Anthem’s determination and, therefore, material to this Court's

assessment of whether its decision to deny extended coverage satisfies the requisite standard, see infra

pp. 35-38. The Court will not draw any negative inference that the extremely small font of the documents

submitted represents an attempt to hinder the Court’s analysis or obfuscate the issues. Nonetheless, the

submission of documents which may be charitably described as barely legible is entirely inappropriate in

Court filings, particularly when the records include medical reviewer notes as they do here (see, e.g., AR

757-58, 770-71, 778).

10

from May 1, 2019, to May 7, 2019: 12.5 SIB (self-injurious behaviors) per day;3 57.14 other

SIB per day; 35.86 aggressive behaviors; 3.43 disruptive behaviors per day; 8 biting of

others per day; .71 head banging per day; 15.25 elopement per day. (/d.) She also identifies

the treatment plan in place which includes the notation that “Depakote was decreased on

5/3/19 following labs that indicated his platelet count was too low. Plan will be to make sure

and add. Dec. to Depakote in upcoming weeks to regain stability in platelet count.” (/d.)

On May 14, 2019, a peer-to-peer call was conducted between Dr. Allen and D.D.’s

KKI doctors, behavioral analyst, Jonathan Schmidt, Ph.D., and psychiatrist, Elaine Tierney,

M.D. (/d.) Anthem’s records describe the substance of the call as follows:

“[the KKI providers] summarized the behaviors member had been exhibiting.

He had been decompensating for at least 8 months, and had not done well with

outpatient treatment with ABA [Applied Behavior Analysis]. Member had been

receiving in home ABA services for long period of time. He was not having

acute decompensation, and they were unable to define a stable baseline for

member. The doctors and ABA therapist are treating long term issues, with no

firm baseline to compare this, and member appears to be in for long term

hospital stay ELOS 4 months.”

(PSMF [39 (quoting AR 757).)4

3 The Court assumes this is the number of head related self-injurious behavior as other SIB is listed

separately and KK] separates “other” SIB and “head” SIB in the medical records. (See, e.g., AR 290.)

4 Plaintiff provides the following definition of “decompensation”: ‘Decompensation is a clinical term

used to describe a mentally ill individual's state of mental health when he or she was previously managing

the illness well but suffered a downturn at a certain stage. That stage is considered a decompensation or

decline in overall condition.” Doc. 33-2 at 8, n.2 (citing

https:/Avww.disabilitybenefitscenter.org/glossary/episodes-

decompensation#:~:text=Decompensation%20is%20a%20clinical% 20term, periods%200f%20decline%20th

at%20occur (last accessed 3/22/21).)

11

After listing documents reviewed (“ACMP WMDS AND OR MEDICAL RECORDS”

(AR 757)) and providing the summary of the peer-to-peer conversation set out above, Dr.

Allen noted “Discussed with AP that we-are making coverage decisions, not treatment

decisions, and he/she is are responsible for treating your patient as he/she deems

necessary.” (/d.) Dr. Allen then provided the following assessment:

BASED ON THE INFORMATION AVAILABLE . ..

LEVEL OF CARE MEDICALLY NECESSARY FOR THE TREATMENT OF

MEMBERS CONDITION WOULD BE:

Long term care in group home, therapeutic boarding school with OP follow up

and ABA services. .

PCR RATIONALE - The doctors and ABA therapist are treating long term

issues, with no firm baseline to compare this, and member appears to be in for

a long term hospital stay - ELOS 4 months. Member has chronic self harm

issues — see note, and could be managed in a long term placement, with ABA

services.

AP informed of decision and appeals process

| have the appropriate scope of the licensure and/or certification typically

managing the medical condition, procedure, treatment or issues under review;

and current relevant experience and/or knowledge to render a determination.

Comments

We reviewed all the information that was given to us before with the first request

for coverage. We also reviewed all that was given to us for the appeal. Your

doctor wanted you to have continued hospital care. You were in the hospital

because you were at a high risk for harm. We understand that you would like

us to change our first decision. Now we have new information from another

telephone call with your doctors. We still do not think this is medically necessary

for you. We believe our first decision is correct for the following reason. After

the treatment you got in the hospital, you were no longer at high risk for harm.

12 □

You could have been treated with outpatient services. We based the decision

on the MCG guideline Inpatient Behavioral Health Level of Care, Child or

Adolescent (ORG: B-902-IP). □□

(AR 757-58.) /

Plaintiff was advised of this decision by letter of May 14, 2019. (AR 912-13.) Anthem

provided the following explanation for its denial of inpatient services from May 8, 2019,

through May 14, 2019: .

Your plan has reviewed your specific circumstances and health condition as

documented in the appeal and medical records provided to us by your treating

physicians. The reviewer, Charlisa Allen MD, is a health plan Medical Director

who is board certified and specializes in Psychiatry. It's her recommendation

that we keep our previous coverage decision. Here’s why:

We reviewed all the information that was given to us before with the first

request for coverage. We also reviewed all that was given to us for the appeal.

Your doctor wanted you to have continued hospital care. You were in the

hospital because you were at a high risk for harm. We understand that you

would like us to change our first decision. Now we have new information from

another telephone call with your doctors. We still do not think this is medically

necessary for you. We believe our first decision is correct for the following

reason. After the treatment you got in the hospital, you were no longer at a high

risk for harm. You could have been treated with outpatient services. We based

the decision on the MCG guideline Inpatient Behavioral Health Level of Care,

Child or Adolescent (ORG: B-902-IP).

(AR 912-13.) Anthem’s letter also references the Summary Plan Description’s definition of

Medical Necessity but does not elaborate on its finding on this issue. (AR 913.)

In KKI correspondence dated May 31, 2019, and received by Anthem on June 6,

2019, KKI submitted a second level appeal of Anthem’s denial. (AR 222, 1012.) KKI wrote

in support of the position that, contrary to Anthem’s assertion, the medical

necessity of [D.D.’s] treatment at KKI did not end on May 8, 2019 and continued

13

coverage is both medically necessary and imperative to his long-term success.

(D00221-279). In support of the appeal, KKI submitted a letter written by Elaine

Tierney, M.D., a Pediatric and Adult Psychiatrist at the NBU, and Jonathan

Schmidt, Ph.D., a Senior Behavior Analyst at the NBU, addressing the

continued medical necessity for treatment along with the April 30, 2019

_ authorization request and letters from D.D’s providers addressing the necessity

for his admission to the KK! program and KKI’s medical records. (D00221-395).

Dr. Tierney and Dr. Schmidt state that “Anthem’s denial is unfathomable” as

D.D. “continues to present a significant risk of harm to both himself and others

around him.” (D00223).

(PSMF 46.)

KKl’s second level appeal letter authored by Dr. Tierney and Dr. Schmidt included □

extensive specific information. From the date of denial, May 9, 2019, to May 24, 2019, D.D.

engaged in an average of 59 instances of self-injurious behavior, 39 instances of physical

aggression, and 6 instances of destructive behaviors per day, totaling 104 behaviors per

day. (AR 224; see also PSMF 47.) On May 22, 2019, a staff member received a laceration

to the hand by D.D. while attempting to manage a behavioral outburst. (/d.) The letter further

stated that

the behavior team at KKI has recently completed a functional. behavior

assessment (FBA), which included functional analyses (FAs), indirect

assessments with parents and school staff, and direct observations. Results

have concluded that [D.D.] will engage in these behaviors to access attention

from others and preferred activities. Currently, we are in the process of

developing an individualized and comprehensive treatment plan for [D.D.] to

target significant and sustained reduction in his severe and dangerous

behaviors. .

The behavior team has continued to work extensively on the

development of this behavior plan and is currently evaluating interventions to

target behaviors maintained by attention and denied access. These

interventions include: a structured schedulef], reinforcement systems,

14

functional communication training, and competing stimuli. Once these

evaluations are complete, training to all staff and caregivers will be initiated to

ensure that treatment gains and effects are generalized to those individuals

who will be responsible for [D.D.’s] continued care post-discharge. This will

ensure the continuity of care and appropriate responding over an extended

period of time and decrease likelihood that [D.D.] will regress or display similar

rates of as was reported [sic] prior to at the time of his admission.

In conjunction with behavioral treatment, specific

osychopharmacological changes have since been made to [D.D.'s]

medications. Upon admission, through results obtained via bloodwork, it was

determined that [D.D.’s] platelet count was extremely low, most likely due to

valproic acid levels. This posed a potential serious medical risk for [D.D.]. Thus,

his valproic acid was decreased from 1300mg to 1000mg on 5/4/19 and later

700mg on 5/11/19. Following the most recent bloodwork, [D.D.’s] platelet count □

is now within normal range. However, it is important to note, that while valproic

acid was being titrated down, [D.D.’s] mood was reported to have shifted such

that he often displayed more negative affect (i.e., crying and screaming), along

with bouts of agitation and reactivity.

Specifically, as mentioned above concerning his behavioral outbursts,

{D.D.] would become severely agitated, begin screaming/crying, and engage in

dangerous bouts of physical aggression contingent upon minor changes to

environment (i.e., denied access to attention or items of interest). [D.D.’s]

reaction to these changes were not congruent with what would be expected,

indicating extreme reactivity and impulsivity in his behavioral pattern of

responding. This suggests that the valproic acid was most likely providing some

positive support for mood stability and behavioral stabilization. To augment the

effects of the current dose of valproic acid and target the underlying symptoms

of reactivity and agitation, aripiprazole was increased on 5/15/19. This will take

approximately 2 weeks to reach a steady state, at which time effects on

behavioral targets may be better evaluated. Future medication plans will be to

continue increasing aripiprazole to obtain maximum effects.

It is medically necessary that [D.D.] remain at KKI to conclude his

treatment course so that his behavioral responding remains low and stable.

This will ensure that his return home after discharge will not result in re-

hospitalization. That is, if [D.D.] were to be discharged from our facility before

he is medically and behaviorally stable (i.e., not engaging in high rates of self-

injury, aggression, and destruction as evidenced above), there is an extremely

15

high likelihood that he will regress back to his behavioral presentation prior to

his admission, and thus require an extensive need for services and

unnecessary hospitalizations. ...

Based on our experience with many similar cases, we are confident that

we will make progress to the extent that [D.D.] will achieve behavioral stability

and be able to fully and safely participate in family activities, academic

programming, and community outings. In addition to research supporting this

approach to treatment, our outcome data over the past 10 years indicates that

we can reduce these behaviors by at least 80% for 80% of patients we treat on

the NBU....

These outcome data clearly demonstrate significant reductions when a

full admission is supported to its logical conclusion. Thus, acceptable discharge

criteria have not been met. [D.D.] and others remain at risk for injury, and the

treatment is not completed to the point it can be successfully implemented in

his home and community settings. Based on [D.D.’s] history and our experience

with similar children, successful transition to his home and community will

require: 1) continued treatment in-hospital, 2) additional intensive training to

ensure caregivers deliver the treatment consistently and with good integrity,

and 3) generalization of the treatment to ensure lasting effects of the treatment

in the natural environment. Most of these activities are well underway. We

assert that the interventions and services delivered since the date of denial

(5/8/19) until present could only have been done in the inpatient setting. Having

provided both inpatient and outpatient levels of service for over 25 ears, we are

intimately familiar with the capabilities and limitations of each — and if we

thought an outpatient level of service would be appropriate, we would have

moved him to that level of service by now.

(AR 224-26.)

KKI also contrasted the care D.D. received on the NBU with custodial care.

First, custodial care is habilitative, meaning that the individual is being

maintained and cared for with no intention for improving functioning. In contrast,

care being provided to [D.D.] on the NBU is rehabilitative, in that the goals are

to improve functioning so he will be able to participate in educational

programming, and home and community life. Progress has been made in these

efforts, but much more remains to be accomplished. Second, in light of the

basic goals of custodial care, facilities providing such care often have one direct

16

care staff person managing 4 to 6 residents, rudimentary nursing monitoring,

and weekly or monthly monitoring by a physician. If interdisciplinary care is

being provided, the team may meet monthly or even every six months. In

contrast, on the NBU: a) [D.D.] is staffed 1:1 by direct staff who collect detailed

behavioral data during all waking hours, b) he is seen throughout the day by a

nurse to monitor his medical status, c) he participates in 3.5 hours of intensive

behavior therapy sessions by a team of 3 therapists, d) he attends therapies,

and [e)] [he] is seen by a psychiatrist every day. His behavioral and psychiatric

interventions are being monitored and adjusted continuously by his team,

through the objective interpretation of behavioral data. Members of the team

meet daily, and full team meetings occur weekly. These intensive treatments

are necessary because his goals are rehabilitative and his needs are great.

(AR 226-27.)

Drs. Tierney and Schmidt concluded that based on their knowledge of the case, they

had

no doubt that discharge on the date of 5/8/19 would have resulted [in] re-

hospitalization as [D.D.’s] behaviors remain acute. The good news is that we

have identified the function of his problem behaviors and are able to move

forward with behavioral treatment. We feel strongly that we will see

improvements with a highly individualized behavioral treatment and effective .

medication regimen in place. Further we are confident that additional

improvement can be achieved and sustained after discharge.

(AR 227.) For the foregoing reasons, Drs. Tierney and Schmidt requested that services be

authorized from May 8, 2019, until discharge criteria have been met. (Id.)

With the letter of June 14, 2019, Anthem denied the second level appeal. (AR 927-

28.) Anthem repeated the rationale of its earlier denial almost verbatim, the only difference

being that the information relied on in the June 14th letter was “new information from the

hospital medical record plus letters” rather than “new information from another telephone

call with your doctors” relied on in the May 14th decision. (See AR 912-13, 927-28.) In the

47

June 14th letter, the health plan medical director is not identified by name but appears to be

Abe Soliman, M.D., based on Anthem’s records which indicate that Abe Soliman, M.D.,

conducted an internal review related to the appeal and his “Internal MD Rationale” is

identical to the text of the second paragraph of Anthem’s June 14, 2019. (See AR 770, 927-

28.) Dr. Soliman’s June 14, 2019, record entry concerning his second level appeal chart

review includes the following assessments:

PT remains on the same meds. He is medically stable, but has movement d/o.

Pt show no changes. He remains impulsive and aggressive. No reported SI or

HI. Decision: Patient has Autism and severe intellectual disability. He has long

Hx of aggressive. Pt is medically stable and he has good support system. No

reported SI or HI. Pt is compliant with meds. Therefore, the medical necessity

criteria do not appear to be met for IP MH. Alternative level of care is OP MH.

(AR 778.)

KK! submitted a request for independent external review on July 11, 2019, “in

response to the denial of benefits for the dates of service 5/8/19 to current.” (AR 396.)

Enclosed with the July 11, 2019, correspondence was a letter from KKI Drs. Tierney and

Schmidt dated July 9, 2019, requesting an independent external review of Anthem’s denial

of benefits for the dates of service “5/8/19 to the present day and beyond” as such coverage

was considered “both medically necessary and imperative to [D.D.’s] long-term success.”

(AR 397.) After providing background information and a review of Anthem’s June 14, 2019,

letter, Drs. Tierney and Schmidt provided the following response to the denial:

Anthem’s Denial does not align with the plethora of information provided below

and on all previous conference calls indicating that [D.D.] and others around

[D.D.] remain at high risk of harm on a daily basis due to his severe behaviors,

18

as evidenced by the data and list of staff injuries since his admission. Upon

[D.D.’s] admission to the NBU on 5/1/19/ up until the present date of 7/8/19,

Daniel has continued to engage in severe and persistent self-injurious (hits and

punches to his head, face, and body, along with self-biting, skin-pinching, and

forcefully banging [hJis knees and feet to the floor), physically aggressive

(hitting, punching, kicking, grabbing, biting, head-butting), destructive (throwing

and breaking items and kicking walls and furniture), and elopement behaviors

(running more than 3 feet away from a caregiver towards a marked exit) on a

daily basis. Since the date of denial to 6/17/19, with baseline contingencies

in place (i.e., naturally occurring consequences including attention and

escape for problem behavior), [D.D.] engaged in an average of 63

instances of self-injurious behavior, 29 instances of physical aggression,

6 instances of destructive behavior, and 10 instances of elopement,

totaling 108 behaviors per day.

Furthermore, data are also collected on behavioral outbursts, defined

as 5 or more combined instances of self-injury, aggression, and destruction

within a 2 minute period, often requiring an additional staff member to safely

manage. Since the date of denial... . on 5/8/19 to 6/17/19, [D.D.] engaged in

an average of 2 outbursts, staff had to wear protective equipment including

double padded arm guards and padded gloves to protect themselves from bites

and scratches. Staff must also apply a padded helmet to prevent injuries to the

face from physical aggression, such as scratching, hair-pulling, and head-

butting. Even with these added precautions, staff have still incurred injuries that

required medical attention. ...

Since [D.D.’s] admission, the behavior team at KKI completed a

functional behavioral assessment (FBA) ... . Following the conclusion of the

FBA, extensive treatment evaluations were concluded to develop a

comprehensive and individualized behavioral treatment package that may

target a reduction in [D.D.’s] severe behaviors .... While . . . targeted

[treatment] components were effective in reducing overall rates of self-injury,

aggression, destruction, and elopement when [D.D.] was in the presence of his

behavioral treatment team, extensive training of staff was initiated to extend

and generalize treatment effects acress the course of the entire day — to mimic

a home and school schedule. Thus, the aforementioned behavioral treatment

was introduced 24hrs/day, Monday-Friday beginning 6/18/19.

_ Since the introduction of the behavioral treatment package across the

day, [D.D.’s] severe behaviors have remained variable, specifically correlated

19

with medication changes, targeting continued mood dysregulation, significant

sleep disturbances, and bouts of agitation and impulsivity/reactivity (please

refer to the medical section below to further detail pharmacological

interventions). Since 6/18/19 to the current date of 7/8/19, with treatment

contingencies in place, [D.D.] is engaging in an average of 66 instances

of self-injurious behavior, 31 instances of physical aggression, 6

instances of destructive behavior, and 17 instances of elopement,

totaling 120 behaviors per day. Within that timeframe, additional staff injury

reports have occurred....

_ Specifically, within the most current week (7/2/19-7/8/19), [D.D.] has

engaged in an average of 39 instances of self-injurious behavior, 13

instances of physical aggression, 7 instances of destructive behavior,

and 10 instances of elopement, totaling 69 behaviors per day. While his

overall average frequency of severe behaviors is slightly lower compared to the

previous week, overall rates and the intensity of the behaviors remain

significant. Thus, the behavior team has been working on updating and

modifying his treatment package to address the most current behavioral issues,

along with collaborating closely with psychiatry to target [D.D.’s] underlying

psychiatric presentation. . . . Additionally, extensive training with staff and

caregivers will be initiated to ensure that treatment gains and effects are

generalized to those individuals who will be responsible for [D.D.’s] continued

care post-discharge. This will ensure the continuity of care and appropriate

responding over an extended period of time and decrease the likelihood that

[D.D.] will regress or display similar rates of as was reported [sic] prior to at the

time of his admission. .

MEDICAL.

In conjunction with behavioral treatment, specific

psychopharmacological changes have been made to [D.D.’s] medications

throughout the course of his admission. Upon admission, through results

obtained via bloodwork, it was determined that [D.D.’s] platelent count was

extremely low, most likely due to valproic acid levels. This posed a serious

medical risk for [D.D.]. Thus, his valproic acid was decreased . . . on 5/4/19 and

... [again] on 5/11/19. Following more recent bloodwork, [D.D.’s] platelet count

is now within the normal range. However, it is important to note that while

valproic acid was being titrated down, [D.D.’s] mood was reported to have

shifted such that he often displayed more negative affect (i.e., crying and

screaming), along with bouts of agitation and reactivity.

20

These bouts of agitation and reactivity would often occur within the

context of large and prolonged behavioral outbursts, characterized by

screaming/crying and severe physical aggression contingent upon minor □

changes in his environment... . Daniel’s reactions to these changes were not

congruent with what would be expected, indicating extreme reactivity and

impulsivity in his behavioral pattern of responding. To target the underlying

symptoms of reactivity and agitation, aripiprazole was increased on 5/15/19 ..

. . While minor effects to his overall behavioral presentation were observed,

D.D.’s sleep pattern continued to be irregular, such that he would fall asleep

around 10 p.m. and wake up consistently between 3:30 a.m. and 4:30 a.m.

During these early wake-up times, he would become overly active and

disruptive, exhibiting loud vocalizations and dangerous behaviors (é.g.,

jumping out of bed, engaging in fecal smearing, and banging surfaces in his

room). In an effort to further maximize the behavioral effects of aripiprazole and

potentially stabilize his sleep, this medication was increased again in 5/30/19

and... [increased again] on 6/21/29. Daniel's sleep disturbances and irregular

sleeping patterns persisted despite these changes. On 6/24/19, his valproic

acid was increased in the evening . . . ; however, his platelet count with a CBC

was taken and closely monitored. During the period that valproic acid was

increased . . . (from 6/24/19 to 6/27/29), [D.D.’s] agitation increased

significantly, which further led to instability and elevations in his dangerous

behaviors, as evidenced by multiple staff injuries during this time. Valporic acid

was later decreased . . . on 6/28/19. Most recently, in a continued effort to

regulate his sleep and extreme behavioral responding, olanzapine was added

to his medication regimen on 7/8/19. This addition will be closely monitored by

the psychiatrist over the next week to maximize the potential effects of this

newest medication trial.

In summation, it is medically necessary that [D.D.] remain at KKI to

conclude his treatment course so that his behavioral responding stabilizes and

may remain low over the course of several days. This will ensure that his return

home after discharge will not result in re-hospitalization. That is, if [D.D.] were

to be discharged from our facility before he is medically and behaviorally stable

(i.e., not engaging in high rates of self-injury, aggression, and destruction as

evidenced above), there is an extremely high likelihood that he will regress

back to his behavioral presentation prior to his admission, injuring himself or

someone else, and thus require extensive need for services and unnecessary

hospitalizations. There is a well-documented history that all outpatient and in-

home services [D.D] was receiving prior to the current admission resulted in no

21

sustained or significant changes to his behavior; thus, there is no reason to

believe that this will change if he is discharged now without a finalized

behavioral and psychopharmacological treatment plan in place.

Based on our experience with many similar cases, we are confident that

we will make progress to the extent that [D.D.] will achieve behavioral and

psychiatric stability and be able to fully and safely participate in family activities,

academic programming, and community outings.

(AR 398-402.)

After pointing to research and data supportive of KKI’s approach to treatment, Drs.

Tierney and Schmidt stated that acceptable discharge criteria had not been met and the

activities geared toward satisfying the criteria were well underway but could only be done in

an inpatient setting—if they thought an outpatient level of service would be appropriate, they

would have moved [D.D.] to that level of service. (AR 403.) The letter again outlined the

care D.D. was receiving on the NBU and summarized their opinion:

on the NBU: a) [D.D.] is staffed 1:1 by direct staff who collect detailed |

behavioral data during all waking hours, b) he is seen throughout the day by a

nurse to monitor his medical status, c) he participates in 3.5 hours of intensive

behavior therapy sessions by a team of 3 therapists, d) he attends therapies, □

and [e)] [he] is seen by a psychiatrist every day. His behavioral and psychiatric

interventions are being monitored and adjusted continuously by his team,

- through the objective interpretation of behavioral data. Members of the team

meet daily, and full team meetings occur weekly. These intensive treatments

are necessary because his goals are rehabilitative and his needs are great.

In short, based on our knowledge of this case, we have no doubt that

discharge on the date of 5/8/19 would have resulted [in] re-hospitalization as

[D.D.’s] behaviors remain acute. The good news is that we have identified the

function of his problem behaviors and are able to move forward with behavioral

treatment. We feel strongly that we will see improvements with a highly

individualized behavioral treatment and effective medication regimen in place.

22

Further we are confident that additional improvement can be achieved and

sustained after discharge.

(AR 403-04.5)

Advanced Medical Review issued a letter on September 3, 2019, upholding

Anthem’s denial. (AR 933.) The letter states:

Advanced Medical Review (AMR) is the Independent Review Organization

(IRO) selected to review this case.

A physician reviewer, board certified in Psychiatry, Psychiatry Child &

Adolescent, Sleep Medicine, and Psychiatry with Expertise in Eating Disorders

has reviewed the case regarding the aforementioned plan member.

After careful consideration of all relevant medical information, attending health

care professional's recommendation, appropriate practice guidelines,

applicable criteria sets, standards and interpretation guidelines, and terms of

the Plan, AMR upholds the carrier's decision and the request is denied.

Please refer to the attached document for a brief case summary and reviewer.

comments referenced in the performance of this review.

The Peer Reviewer Final Report attached to the letter was completed on September

3, 2019. (AR 937.) It lists the medical records reviewed, including Anthem letters of May 10,

2019, May 14, 2019, and June 14, 2019, KKI letter of May 31, 2019, KKI medical records

dated May 1, 2019, to July 7, 2019, MCG Health Inpatient Behavioral Health Level of Care

Child or Adolescent (B-902-IP (BHG)) dated June 24, 2019, and the relevant benefits plan.

5 Drs. Tierney and Schmidt had previously outlined D.D.’s treatment and their prognosis in their

May 31,2019, Second Level of Appeal letter. (See AR 227-27.)

6 KKI's letters of July 9, 2019, and July 11, 2019, (AR 396-404) are not listed in the documents

reviewed. (AR 937.)

23

(Id.) The Report provides a general review and answers specific questions related to the

requested services. (AR 937-38.)

The patient is a 16-year-old male, who was admitted to the acute

inpatient psychiatric unit on 05/01/2019. He was diagnosed with autism

spectrum disorder, obsessive-compulsive disorder, conduct disorder, and

severe intellectual disability. The patient was reported to have been admitted

for worsening symptoms of agitation, aggression, mood dysphoria, and

persistent self-injurious behaviors. He was also reported to have been

engaging in property destruction and elopement from home. The patient was

reported to have behaviors related to pica.

The patient was reported to have a significant history of psychiatric

treatment including psychiatric hospitalizations in the past. He was reported to

have been receiving applied behavioral analysis (ABA) therapy and 30-40

hours a week of in-home support. The patient was not reported to have

significant ongoing medical conditions that require hospital intervention. He

was noted to have a medical history significant for seizure disorder. He was not

reported to have any significant history of substance use.

The patient was provided with individual, group, milieu, and family

therapy in addition to medication management while on the acute inpatient

psychiatric unit. He was noted to have had functional behavioral assessments

performed while admitted to the inpatient unit. He was prescribed psychotropic

medications including aripiprazole and sodium valproate. Medications were

_ optimized for adequate symptom control. The patient was not reported to have

any significant adverse effects from his psychotropic medications.

The patient was not noted to have any significant acute behavioral

symptoms that represented a change from baseline as of 05/08/2019. He was

not reported to have any suicidal or homicidal ideations with plans or stated

intent. He was not reported to have any symptoms suggestive of psychosis

including command hallucinations, persecutory delusions, or extreme

paranoia. The patient was noted to have intermittent episodes of self-injurious

behaviors and intermittent aggression, which appeared to be his baseline

related to pervasive developmental disorder and intellectual disability. He was

not reported to have any symptoms of mania or hypomania. The patient had

no significant ongoing medical problems that required hospital interventions.

There was no indication that the patient had any significant change in daily

24

functioning from baseline. The patient was not reported to have any significant

deterioration from baseline or emergence of new symptoms during his

continued stay on the inpatient unit.

REQUESTS/QUESTIONS:

Requested Services: Psychiatric acute inpatient level of care

1. Has sufficient information been provided to render and opinion? Yes

Sufficient information has been provided to render an opinion regarding

the medical necessity of continued acute inpatient psychiatric hospitalization

from 05/08/2019 forward...

-2. Is the proposed treatment medically necessary (can provision of the

treatment, in whole or in part, reasonably be expected to be health beneficial

for the patient and/or can withholding treatment, in whole or in part, reasonably

be expected to affect the patient’s health adversely)? No

Based on current peer-reviewed, evidence based medical literature, the

requested service (acute inpatient stay from 05/08/2019 forward) was not found

be medically necessary. The clinical information provided does not indicate

that the service requested is medically necessary or likely to be successful in

treating the patient's symptoms. Acute inpatient psychiatric level of care would

be considered medically necessary when there is imminent risk of harm to self

_or others as indicated by persistent suicidal or homicidal ideations with plans

or stated intent or when the patient has significant agitation and aggression,

which is of acute onset and represents a clear change from baseline (1-6),

Inpatient level of care may also be required in individuals with significant

ongoing symptoms of psychosis or mania and in those with significant acute

onset of functional impairments related to behavioral symptoms (7-8). The

patient was not noted to have any significant acute behavioral symptoms that

represented a change from baseline as of 05/08/2019. He was not reported to

have any suicidal or homicidal ideations with plans as stated intent. The patient

was noted to have intermittent episodes of self-injurious behaviors and

intermittent aggression, which appeared to be his baseline related to pervasive

developmental disorder and intellectual disability. The patient was not reported

. to have any symptoms suggestive of psychosis including command

hallucinations, persecutory delusioins, or extreme paranoia. There was not

indication that the patient had any symptoms suggestive of acute mania or

hypomania. The patient was reported to have significant ongoing medical

25

conditions that required hospital-based interventions or monitoring.’ There was

no indication that the patient had any significant change in daily functioning

from baseline. The patient was not reported to have any significant

deterioration from baseline or emergence of new symptoms during his

continued stay on the inpatient unit. The patient may have been managed at a

lower level of care such as at a residential treatment unit for developmentally

disabled children. There was no indication that the patient required acute

inpatient care.

3. Is there an absence of available alternate therapies? No.

Clinical information reviewed does not indicate that there was an

absence of alternative level of treatment for this patient. The patient was not

reported to have any acute behavioral symptoms that represented a change

from the baseline as of 05/08/09. The patient was noted to have intermittent

episodes of self-injurious behaviors and intermittent aggression towards staff

-and family, which appeared to be his baseline behaviors related to pervasive

developmental disorder and intellectual disability. The patient may have been

treated at the residential treatment level of care for his ongoing symptoms.

There was no indication that residential treatment was not available for this

patient.

4. Is the proposed treatment medically necessary according to the patient's

health insurance certificate? No

The. proposed treatment (continued acute inpatient psychiatric

hospitalization from 05/08/2019 forward) was not found to be medically

necessary according to the patient's health insurance certificate. The patient's

health insurance certificate limits coverage to medically appropriate services,

which are deemed medically necessary based on current standards of medical

practice. Continued hospitalization from 05/08/2019 was not found to be

medically necessary in this patient based on current medical literature and

accepted standards of medical practice. Therefore, the proposed treatment

was not found to be medically necessary according to the patient's health

insurance certificate.

7 Based on previous iterations of this finding where the reviewer indicated that D.D. did not have

significant ongoing medical problems that required hospital interventions, the Court assumes that the word

was mistakenly omitted from this sentence, i.e., it is meant to read that “[t]he patient was not reported

to have significant ongoing medical conditions that required hospital-based interventions or monitoring.”

26

5. Should the health plan cover the proposed treatment? No

The health plan should not cover the proposed treatment (continued

inpatient psychiatric hospitalization from 05/08/2019 forward). The patient was □

not noted to have any significant acute behavioral symptoms that are possibly

a change from baseline that required continued inpatient hospitalization as of

05/08/2019. There was no indication that the patient had any significant change

in daily functioning from his baseline. The patient may have been managed at

a lower level of care such as in a residential treatment unit. There was no

indication that the patient continued to require acute inpatient psychiatric

hospitalization. Therefore, the health plan should not cover the proposed

treatment.

(AR 937-39.)

_The record shows the following averages regarding problematic behaviors per day,

i.e., self-injurious behavior, physical aggression, destructive behavior, and elopement while

D.D. was a patient on the NBU:

1. Analysis of Extended Periods

e May 1, 2019 - May 12, 2019: 124.56 (AR 323 (KKI May 13, 2019, Progress

Note))

o May 1, 2019 — May 30, 2019: 123.74 (AR 574 (KKI May 31, 2019, Progress

Note))

e May 1, 2019 — June 6, 2019: 117.74 (AR 712 (KKI June 28, 2019, Progress

Note))

° May 8, 2019 — June 17, 2019: 108 (AR 399 (KKI July 9, 2019, letter))

e June 18, 2019 — July 8, 2019: 120 (AR 400 (KKI July 9, 2019, letter))

2. Analysis of Periods of Shorter Duration

e May 1, 2019 — May 5, 2019: 150 (AR 289-90 (May 6, 2019, Progress Note)

e May 6, 2019 — May 12, 2019: 105 (AR 323 (KKI May 13, 2019, Progress

Note))

e May 24, 2019 - May 30, 2019: 132.15 (AR 574 (KKI May 31, 2019, Progress

. Note))

oe May 31, 2019 - June 7, 2019: 82 (AR 614 (KKI June 7, 2019, Progress Note))

e June 18, 2019 June 27, 2019: 157.89 (AR 712 (KKI June 28, 2019 Progress

Note))

e June 28, 2019 — July 4, 2019: 68.2 (AR 740 (KKI July 5, 2019, Progress

Note))

The record also shows instances where D.D. was assessed by KK! not to be in

distress, to have a neutral affect, and have decreased problem behaviors. (See, e.g., DSMF

75, 77-79, 81, 84, 87, 90, 92, 100, 101 ,104.) Similarly, the record sometimes indicated

appropriate sleep duration (See, e.g., DSMG FJ 86, 93, 103.)

D.D. stayed at KKI until October 24, 2019. (DSMG ¥ 108.) Neither Plaintiff nor KKI

submitted medical records to Anthem for dates of service after July 7, 2019. (/d.)

The MCG Guideline Inpatient Behavioral Health Level of Care, Child or Adolescent

(ORG:B-902-IP) is the Guideline which Anthem indicated to be the basis for its review of

requests for continuing care and the denial of appeals and which AMR indicated to be a

record considered. (See AR 228, 235, 928, 937.) The Guideline contains several

28

components, including Admission Guidelines, Recovery Course, and Discharge Guidelines.

(AR 1021-22.) “Admission Guidelines” are as follows:

e Admission to Inpatient Level of Care for Child or Adolescent is indicated

due to ALL of the following:

o Patient risk of severity of behavioral health disorder is appropriate to

proposed level of care as indicated by 1 or more of the following . .

= Imminent danger to self for child or adolescent

= Imminent danger to others for child or adolescent

= Behavioral health disorder is present and appropriate for

inpatient care with ALL of the following:

e Severe Psychiatric, behavioral, or other comorbid

conditions for child or adolescent

e Severe dysfunction in daily living for child or adolescent

+ Treatment services at proposed level of care are indicated

+ Situation and expectations are appropriate for inpatient care for

Child or adolescent

(AR 1021.)

The “Recovery Course” section of the guidelines identifies “Continuing Care” as

Stage 1 and identifies the “Clinical Status” component to be “Continued treatment needed

for condition as described in Admission Guidelines Treatment plan with goals and progress

measurements in place.” (AR 1021.)

Detailed “Discharge Guidelines” provide as follows:

e Continued inpatient care generally is needed until 1 or more of the

following ...:

29

~ © Continued inpatient 'care is no longer necessary due to adequate

patient stabilization or improvement as indicated by ALL of the

following... :

» Risk status acceptable as indicated by ALL of the following:

e Danger to self or others manageable as indicated by 1

or more of the following:

o Absence of Thoughts of suicide, homicide, or

serious Harm to self or to another

o Thoughts of suicide, homicide, or serious Harm

to self or to another present but manageable at

available, lower level of care

e Patients and supports understand follow-up treatment

and crisis plan.

e Provider and supports are sufficiently available at lower

level of care.

e Patient, as appropriate, can participate as needed in

monitoring at available lower level of care.

= Functional status acceptable as indicated by 1 or more of the

following: .

e essential function is significantly impaired.

e Anessential function is impaired, but impairment is

manageable at available lower level of care.

= Medical needs absent or manageable at available lower level

of care as indicated by ALL of the following:

e Adverse medication effects absent or manageable

e Medical comorbidity absent or manageable

e Medical complications absent or manageable (eg,

complication of eating disorder

e Substance related disorder absent or manageable

= Treatment goals for level of care met

o Inpatient care is no longer appropriate due to patient progress

record or consent as indicated by 1 or more of the following:

30

= Lack of improvement indicates need for long-term custodial

facility.

= Guardian no longer consents to treatment and involuntary

treatment is not deemed necessary.

(AR.1022.)

The following explanatory footnotes are relevant. Regarding indications for

admission to an inpatient psychiatric unit, the MCG Guideline states that “(s]ymptoms or

conditions used to determine the appropriate treatment intensity should be due to the □

underlying behavioral diagnosis. or represent factors that contribute to destabilization of the

underlying diagnosis, and are acute in nature or represent a significant worsening over

baseline.” (AR 1024 n.B.) The severity of the behavioral and other comorbid conditions

[mJay be based on symptom severity alone (including intensity and frequency

of symptoms and the extent to which they interfere with functioning), or may be

due to other factors (EG, comorbid medical illness, developmental condition,

cognitive impairment, substance use disorder or other factors that contribute to

destabilization or decreased ability to cope with the underlying behavioral

health disorder). If the comorbidity affects the level of care appropriate to meet

the patient's behavioral health needs, the manner in which it impacts the

behavioral health condition (and now the comorbidity will be managed at the

appropriate level of care) should be documented in order to optimize patient

care.

(Id. n.C.) “Essential functions” are defined as “those that are necessary to sustain

life, such as feeding and hydrating oneself.” (/d. n.H.) The Administrative Record

also includes a definition of “harm” associated with B-902-IP: “Harm to self or

another is considered serious if it has a substantial likelihood of causing death,

disability, or major disfigurement.” (AR 1050.)

31

: Ill. STANDARD OF REVIEW

Summary judgment is appropriate “only where there is no genuine issue of material

fact and the moving party is entitled to judgment as a matter of law.” Gonzalez v. AMR, 549

F.3d 219, 223 (3d Cir. 2008). “An issue is genuine only if there is a sufficient evidentiary

basis on which a reasonable jury could find for the non-moving party, and a factual dispute

is material only if it might affect the outcome of the suit under governing law.” Kaucher v.

Cnty. of Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986)). Thus, through summary adjudication, the court may dispose of

those claims that do not present a “genuine dispute as to any material fact.” Fed. R. Civ. P.

56(a).

The party moving for summary judgment bears the burden of showing the absence

of a genuine issue as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106

S. Ct. 2948, 91 L. Ed. 2d 265 (1986). Once such a showing has been made, the non-

moving party must offer specific facts contradicting those averred by the movant to establish

a genuine issue of material fact. Lujan v. Nat'l Wildlife Fed’n, 497 U.S. 871, 888, 110 S. Ct.

3177, 111 L.-Ed. 2d 695 (1990). Therefore, the non-moving party may not oppose summary

judgment simply on the basis of the pleadings, or on conclusory statements that a factual

issue exists. Anderson, 477 U.S. at 248. “A party asserting that a fact cannot be or is

genuinely disputed must support the assertion by citing to particular parts of materials in the

record . . . or showing that the materials cited do not establish the absence or presence of a

32

genuine dispute, or that an adverse party cannot product admissible evidence to support the

fact.” Fed. R. Civ. P. 56(c)(1)(A)-(B). In evaluating whether summary judgment should be

granted, “[t]he court need consider only the cited materials, but it may consider other

materials in the record.” Fed. R. Civ. P. 56(c)(3). “Inferences should be drawn in the light

most favorable to the non-moving party, and where the non-moving party's evidence

contradicts the movant’s, then the non-movant's must be taken as true.” Big Apple BMW,

Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert. denied, 507 U.S. 912,

113 S. Ct. 1262, 122 L. Ed. 2d 659 (1993).

However, “facts must be viewed in the light most favorable to the nonmoving party

only if there is a ‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380

(2007). If a party has carried its burden under the summary judgment rule,

its Opponent must do more than simply show that that there is some

metaphysical doubt as to the material facts. Where the record taken as a whole

could not lead a rational trier of fact to find for the nonmoving party, there is no

genuine issue for trial. The mere existence of some alleged factual dispute

between the parties will not defeat an otherwise properly supported motion for

summary judgment; the requirement is that there be no genuine issue of

material fact. When opposing parties tell two different stories, one of which is

blatantly contradicted by the record, so that no reasonable juror could believe

it, a court should not adopt that version of the facts for purposes of ruling on a

motion for summary judgment.

Id. (internal quotations, citations, and alterations omitted).

“In considering a motion for summary judgment, a district court may not make

credibility determinations or engage in any weighing of evidence.” Anderson, 477 U.S. at

295. Therefore, when evidentiary facts are in dispute, when the credibility of witnesses may

33

be in issue, or when conflicting evidence must be weighed, a full trial is usually necessary.

Courts may consider video evidence in determining whether disputes of material fact exist.

See Scott, 550 U.S. at 379-81.

A district court “should consider cross-motions for summary judgment separately and

apply the burden of production to each motion.”® Beenick v. LeFebvre, 684 F. App’x 200,

205 (3d Cir. 2017) (not precedential) (citing Lawrence, 527 F.3d at 310). “If upon review of

cross motions for summary judgment [the court] find[s] no genuine dispute over material

facts, then [the court] will order judgment to be entered in favor of the party deserving

judgment in light of the law and undisputed facts.” Iberia Foods Corp. v. Romeo, 150 F.3d

298, 302 (3d Cir. 1998) (citing Ciarlante v. Brown & Williamson Tobacco Corp., 143 F.3d

139, 145-46 (3d Cir. 1998)).

8 Beenick further explains, —

[the plaintiff] argues that the District Court failed to apply the correct standard on cross-

motions for summary judgment because it did not fully consider his motion for partial

summary judgment. Beenick is correct that a District Court should consider cross-motions

for summary judgment separately and apply the appropriate burden of production to each

motion. See Lawrence v. City of Philadelphia, 527 F.3d 299, 310 (3d Cir. 2008). The District

Court did not violate this rule because it did not consider the cross-motions simultaneously.

Rather, it addressed Defendants’ motion for summary judgment first. By proceeding with

Defendants’ motion first, the District Court viewed the evidence in the light most favorable

to Beenick and concluded that Defendants were entitled to summary judgment on all of his

claims. That conclusion ended the case and mooted any need to consider Beenick's cross-

motion for partial summary judgment.

Beenick v. LeFebvre, 684 F. App’x 200, 205-06 (3d Cir. 2017).

34

IV. ANALYSIS

A. Plaintiff's Motion for Summary Judgment

Plaintiff asserts that summary judgment in his favor is warranted because Anthem’s

denial of the request for D.D.’s “continued treatment at KKI constitutes an abuse of

discretion as the determination is unreasonable and unsupported by substantial evidence

because it ignores the opinions of D.D.’s treating physicians and common sense, which

establish that the medical necessity of D.D.'s treatment at KKI did not end on May 8, 2019.”

(Doc. 38 at 18.) Defendant responds that Plaintiff's Motion for Summary Judgment should

be denied and Anthem’s Cross-Motion for Summary Judgment should be granted “because

substantial evidence in the record supports the decision that D.D.’s continued treatment at

KKI was not medically necessary after May 7, 2019. (Doc. 50 at 1.) The Court concludes

that Plaintiffs Motion is properly granted in part.

“Under the ERISA record rule, judicial review of an ERISA fiduciary's discretionary

adverse benefit decision is confined to the information contained in the administrative

record.” Noga v. Fulton Fin. Corp. Emp. Benefit Plan, 19 F.4th 264, 271-72 (3d Cir. 2021)

(citing Howley v. Mellon Fin. Corp., 625 F.3d 788, 793 (3d Cir. 2010) (explaining that, “under

most circumstances,” the administrative record “cannot be supplemented during litigation’).

The administrative record “typically contains relevant plan documents (such as an insurance

policy), the claim file (the claim, supporting information supplied by the claimant, as well as

information related to the claim that was considered, collected, or generated by the

35

fiduciary), and the fiduciary's final determination with respect to the claim.” Noga, 19 F.4th at

272 (citing Howley, 625 F.3d at 793). The Third Circuit Court of Appeals has explained that

“this rule is not without exceptions. A court may certainly ‘consider evidence of potential

biases and conflicts of interest that is not found in the administrator's record.” Howley, 625

F.3d at 793 (quoting Kosiba v. Merck & Co., 384 F.3d 58, 67 n.5 (3d Cir. 2004)); see also

Burke v. Pitney Bowes Inc. Long-Term Disability Plan, 544 F.3d 1016, 1028 (9th Cir.2008)

(“[T]he district court may consider evidence outside the administrative record to decide the

nature, extent, and effect on the decision-making process of any conflict of interest.”)

(internal quotation marks omitted).

The Supreme Court has held that a district court’s standard of review “depends on

whether a plan grants discretion to the fiduciary who makes benefits decisions.” Noga, 19

F.4th at 272 (citing Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). Ifa

plan does not grant discretion to the fiduciary, “then a court reviews an adverse benefit

determination de novo. See id. But if a plan does confer discretionary authority on a

fiduciary decision-maker, then a court reviews an adverse benefit determination for an

abuse of discretion under the arbitrary-and-capricious standard.”* /d. (citing Firestone, 489

U.S. at 115; McCann v. Unum Provident, 907 F.3d 130, 147 (3d Cir. 2018)). The deference

9 This Circuit has held that the ERISA record rule does not apply to adverse benefit determinations

subject to de novo review. See Luby, 944 F.2d at 1185 (holding that.“de novo review over an ERISA

determination between beneficiary claimants is not limited to the evidence before the [plan administrator]’).

Noga, 19 F.4th at 273.

36

to an adverse determination made under the arbitrary and capricious standard arises out of

ERISA’s roots in trust law and imposition of fiduciary responsibility on administrators.

Firestone, 489 U.S. at 110. As stated in Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105

(2008), in determining benefit eligibility, “the administrator owes a special duty of loyalty to

the plan beneficiaries.” fd. at 111. .

In this case, parties agree that the arbitrary-and-capricious standard applies. (Doc.

38 at 25; Doc. 50 at 1.) The Court of Appeals for the Third Circuit has explained that

[t]his standard is nominally deferential: a fiduciary's decision “will not be

disturbed if reasonable.” Conkright v. Frommert, 559 U.S. 506, 521, 130 S.Ct.

1640, 176 L.Ed.2d 469 (2010) (quoting Firestone [Tire & Rubber Co. v. Burch],

489 U.S. [101, 111], 109 S.Ct. 948, 103 L.Ed.2d 80 (1989)).

Nonetheless, there are several ways in which a fiduciary who makes

benefits decisions may fail the arbitrary-and-capricious standard. An adverse

benefit determination made “without reason, unsupported by substantial

evidence or erroneous as a matter of law” qualifies as arbitrary and capricious.

Abnathya [v. Hoffman-LaRoche, Inc.], 2 F.3d [40, 45 (3d Cir. 1993)] (quoting

Adamo v. Anchor Hocking Corp., 720 F. Supp. 491, 500 (W.D. Pa. 1989)); see

also Grossmuller v. Int'l Union, United Auto. Workers, Loc. 813, 715 F.2d 853,

858 n.5 (3d Cir. 1983) (requiring a plan administrator to “consider the position

of both sides before rendering a decision” (emphasis and citation omitted)). In

addition, a combination of case-specific structural and procedural factors may

demonstrate that a fiduciary abused its discretion in making an adverse benefit

‘determination, and such a decision would likewise fail arbitrary-and-capricious

review. See [Metropolitan Life Ins. Co. v.] Glenn, 554 U.S. [105, 116-17, 128

S.Ct. 2343 (2008)]; Est. of Schwing v. Lilly Health Plan, 562 F.3d 522, 526 (3d_

Cir. 2009); see also Miller [v. Am. Airlines, Inc.], 632 F.3d [837, 845 n.2 (3d Cir.

2011)] (“In the ERISA context, the arbitrary and capricious and abuse of

discretion standards of review are essentially identical.” (citation omitted)).

The structural consideration under the combination-of-factors analysis

focuses on the role of financial incentives in the plan's administration. See Post

[v. Hartford Ins. Co.], 501 F.3d [154, 162 (3d Cir. 2007) (overruled on other

37

grounds by Estate of Schwing v. Lily Health Plan, 562 F.3d 522, 525 (3d Cir.

2009)]. When the same entity administers a plan and pays the benefits due □

under the plan, it has a structural conflict of interest. See Glenn, 554 U.S. at

114], 128 S.Ct. 2343; see also Miller, 632 F.3d at 847 (“[A] conflict arises where

an employer both funds and evaluates claims.” (citation omitted)). But that

conflict alone does not render a fiduciary's adverse benefit determination an

abuse of discretion. See Glenn, 554 U.S. at 117-18, 128 S.Ct. 2343; Dowling

v. Pension Plan for Salaried Emps. of Union Pac. Corp. & Affiliates, 871 F.3d

239, 250-51 (3d Cir. 2017); Fleisher, 679 F.3d at 122 n.3 (stating that a conflict

of interest “is not ... inherently a determinative factor” (citation omitted)). Rather,

“that conflict must be weighed as [one] factor,” Firestone, 489 U.S. at 115, 109

S.Ct. 948 (internal quotation marks and alteration omitted), along with “the □

process ... used in denying benefits,” Miller, 632 F.3d at 845. See Glenn, 554

U.S. at 111, 118-19, 128 S. Ct. 2343.

The procedural factor examines the presence or absence of

irregularities in the handling of benefit claims. Not every anomaly carries great

weight; a fiduciary, even one with a structural conflict of interest, need not

maintain a procedurally immaculate claim file to avoid an abuse-of-discretion

finding. But critically, under the combination-of-factors analysis, procedural

irregularities gain significance the more closely that they align with the financial

incentives that create a structural conflict of interest. See Glenn, 554 U.S. at

117, 128 S.Ct. 2343. In that vein, caselaw has identified several procedural

irregularities that bear directly on the financial incentives at the core of a

structural conflict. See Miller, 632 F.3d at 848-55; Post, 501 F.3d at 166-68;

Kosiba, 384 F.3d at 67-68; Pinto v. Reliance Standard Life Ins. Co., 214 F.3d

377, 393-94 (3d Cir. 2000), abrogated on other grounds by Miller, 632 F.3d at

847; see also Glenn, 554 U.S. at 118, 128 S. Ct. 2343.

Noga, 19 F.4th at 275-76.

Plaintiff alleges that “[s]ince defendant both evaluates and pays benefits claims, it

operates under a conflict of interest as defined in Glenn.” (Doc. 38 at 17.) Defendant

responds that this case does not present a conflict of interest because Anthem is not

financially responsible for paying benefits under the Plan and, instead, acts solely as Claims

Administrator. (Doc. 50 at 27-28.) Plaintiff does not dispute this assertion in his reply brief.

38

(See Doc. 53.) Therefore, further discussion of whether there is a structural conflict of

interest is not warranted and the Court will proceed with an analysis of whether procedural

factors indicate an abuse of discretion in this case.

As stated in Miller, “the procedural inquiry focuses on how the administrator treated

the particular claimant.” 632 F.3d at 845 (quoting Post, 501 F.3d at 162). Miller added that,

in considering the process that the administrator used in denying benefits, we

have considered numerous “irregularities” to determine “whether, in this

claimant's case, the administrator has given the court reason to doubt its

fiduciary neutrality.” [Post, 501 F.3d] at 165 (internal citations omitted).

Ultimately, we “determine lawfulness by taking account of several different,

often case-specific, factors, reaching a result by weighing all together.” Glenn,

554 U.S. at 117, 128 S. Ct. 2343.

Miller, 632 F.3d at 845.

□ summary of procedural anomalies recognized by the Court of Appeals for the Third

Circuit and Third Circuit district courts to “call into question the fairness of the process and

suggest arbitrariness” was set out in Harper v. Aetna Life Ins. Co., Civ. A. No. 10-1459,

2011 WL 1196860, at *2-3 (E.D. Pa. Mar. 31, 2011). The identified anomalies include:

reversing a decision to award benefits without new medical evidence to support

the change in position, [Miller, 632 F.3d] at 848: relying on the opinions of non-

treating over treating physicians without reason, Kosiba v. Merck & Co., 384

F.3d 58, 67-68 (3d Cir. 2004): Ricca v. Prudential Ins. Co. of Am., 747 F. Supp.

2d 438, (E.D. Pa. 2010); failing to follow a plan's notification provisions, Lemaire

v. Hartford Life &Acc. Ins. Co., 69 F. App'x 88, 92-93 (3d Cir. 2003); failing to

comply with the notice requirements of § 503 of ERISA by not giving specific

reasons for the denial, Miller, 632 F.3d at 852; conducting self-serving paper

reviews of medical files, Post, 501 F.3d at 166; failing to address all relevant

diagnoses before terminating benefits, Miller, 632 F.3d at 853; relying on

favorable parts while discarding unfavorable parts in a medical report, Post,

501 F.3d at 165; denying benefits based on inadequate information and lax

39

investigatory procedures, Porter v. Broadspire, 492 F. Supp. 2d 480, 485 (W.D.

Pa. 2007); ignoring the recommendations of an insurance company's own

employees, Post, 501 F.3d at 165; imposing requirements extrinsic to the plan,

Miller, 632 F.3d at 849; and, failing to consider the claimant's specific job

requirements under an “own occupation” policy, id. at 855.

A procedural anomaly may also arise if an insurer provides its outside

consultant, who is offered as independent, with information that “alert[s] him to

what [the insurer] had decided and why” so that he knows where the insurer

was heading. Morgan v. Prudential Ins. Co. of America, [755 F. Supp. 2d 639,

647 (E.D. Pa. 2010)].

The claims process is viewed in its entirety. Each factor is evaluated in

the context of the case. Any one factor may, but not always, compel a finding

of arbitrariness. More than one irregularity suggests a biased process. Thus,

we must weigh all factors together. Glenn, 55 U.S. at 117.

Harper, 2011 WL 1196860, at *2-3.

_ The question of what rationale should be evaluated for purposes of determining

whether Defendant’s decision to deny benefits was arbitrary and capricious is a threshold

matter for the court to decide. In Skretvedt v. E.l. DuPont de Nemours and Co., 268 F.3d

167 (3d Cir. 2001), the Circuit Court assumed arguendo that it was proper to consider

justifications for the decision offered by the defendant at the litigation stage but never

offered to the plaintiff following the denial of the claim, i.e., “post hoc’ justifications, and

found the proffered justifications unconvincing. /d. at 177-78, abrogation on other grounds

recognized by Goletz v. Prudential Ins. Co. of Ameica, 383 F. App’x 193, 198 n.6 (3d Cir.

2010)). The Circuit Court provided the following explanation in the margin:

The [Review] Board's failure to provide Skretvedt with reasoned explanations

for why it denied his disability claims or information on what evidence he could

present to improve his claims raises policy concerns that underlie the notice

40

requirements that ERISA places on pension and benefit review boards.

Specifically, the review boards must give reasons to applicants for denying their

claims so that: (1) applicants may clarify their application on appeal; and (2)

federal courts may exercise an informed and meaningful review of the pension

boards’ decisions.

We find the lack of explanations in the denial letters that DuPont sent

Skretvedt troubling. We do not reach the question whether the notice was

legally inadequate under § 503, however, because we resolve this appeal on

the ground that, even fully crediting the post hoc rationales offered by DuPont,

the Board's decision to deny benefits was arbitrary and capricious. For the

same reason, we decline to reach the question of what level of deference is

owed to rationales for denying benefits under an ERISA-governed plan that a

pension board presents for the first time in federal court. We take this

opportunity, however, to underscore the importance of pension boards

providing specific reasons for denying applicants’ benefits claims, both so that

applicants may introduce the proper evidence on appeal and so that a federal

court may exercise meaningful review.

We note in this regard our agreement with the policy concerns identified

in University Hospitals of Cleveland v. Emerson Electric Co., 202 F.3d 839 (6th

Cir.2000), where the court held that it would not defer to post hoc rationales for

denying benefits claims generated for the purpose of litigation by ERISA plan

administrators when those rationales did not appear in the denial letters sent

to the benefits claimants or in the administrative record. The court observed

that:

it strikes us as problematic to, on one hand, recognize an

administrator's discretion to interpret a plan by applying a

deferential “arbitrary and capricious” standard of review, yet, on

the other hand, allow the administrator to “shore up” a decision

after-the-fact by testifying as to the “true” basis for the decision

after the matter is in litigation, possible deficiencies in the

decision are identified, and an attorney is consulted to defend

the decision by developing creative post hoc arguments that can

survive deferential review.... To depart from the administrative

record in this fashion would, in our view, invite more terse and

conclusory decisions from plan administrators, leaving room for

them—or, worse yet, federal judges—to brainstorm and invent

various proposed “rational bases” when their decisions are

challenged in ensuing litigation.

Id. at 848 n.7.

Skretvedt, 268 F.3d at 178 n.8.

Several circuit courts have held that post hoc rationalizations provided by the

defendant in the litigation process are not appropriately considered when determining

whether the decision of the plan administrator to deny coverage was arbitrary and

capricious. As stated by the Tenth Circuit,

federal courts will consider only “those rationales that were specifically □

articulated in the administrative record as the basis for denying a claim.”

Flinders [v. Workforce Stabilization Plan of Phillips Petroleum Co., 491 F.3d

1180, 1190 (10 Cir. 2007) (overruled on other grounds, Holcomb v. Unum Life

Ins. Co. of America, 578 F.3d 1187, 1192-93 (10' Cir. 2009))]. “The reason for

this rule is apparentt:] we will not permit ERISA claimants denied the timely and

specific explanation to which the law entitles them to be sandbagged by after-

the-fact plan interpretations devised for purposes of litigation.” Id. at 1191

(quotation marks and brackets omitted). A plan administrator may not “treat the

administrative process as a trial run and offer a post hoc rationale in district

court.” Id. at 1192.

Spradley v. Owens-lllinois Hourly Emps. Welfare Ben. Plan, 686 F.3d 1135, 1140-41 (10th

Cir. 2012); see also David P. v. United Healthcare Ins. Co., 77 F.4 1293 (10! Cir. 2023)

(same). In Halpin v. W.W. Grainger, Inc., 962 F.2d 685 (7" Cir. 1992), the Circuit Court

concluded that what might be a reasonable interpretation of a plan provision would not be

‘considered on appeal because there was no evidence that the interpretation of the plan was

espoused by the administrator when the plaintiff's benefits were terminated. /d. at 696. In

42

making this determination, the Seventh Circuit relied in part on Short v. Central States, SE.

& S.W. Areas Pension Fund, 729 F.2d 567 (8th Cir.1984), where the Eighth Circuit stated

that “[a] post hoc attempt to furnish a rationale for a denial of ... benefits in order to avoid

reversal on appeal, and thus meaningful review’ is not acceptable.” /d. at 575. In Glista v.

Unum Life Ins. Co. of America, 378 F.3d 113, 116 (18 Cir. 2004), the First Circuit declined to

consider the merits of the reason not articulated to the plaintiff where additional reason was

articulated in litigation.

Relying on Skretvedt, courts within the Third Circuit have declined to consider post

hoc rationalizations provided by 2 defendant in support of the denial of benefits. Although

decided on a de novo standard, Nair v. Pfizer, Inc., Civ. A. No. 07-5203, 2009 WL 1635380

(D.N.J. June 10, 2009), cited several cases decided on the arbitrary and capricious

standard which declined to consider post hoc rationales for a denial of benefits, including

Schreibeis v. Ret. Plan for Employees of Duquesne Light Co., No. Civ.A. 04-969, 2005 WL

3447919, at *7-9 (W.D. Pa. Dec.15, 2005) (holding, in reliance on Skredvedt, that it was

improper to consider post hoc rationales for plan's determination that plaintiff employee not

eligible for benefits); Doyle v. Nationwide Ins. Co., 240 F.Supp.2d 328, 347 (E.D. Pa.2003)

(declining to consider administrator's post hoc rationales, in light of guidance provided by

Third Circuit in Skretvedt ); Carney v. Int'l Bhd. of Elec. Workers, No. Civ. A.00-6270, 2002

WL 1060652, at "5-6 (E.D. Pa. May 23, 2002) (holding, based on Skredvedf, that benefits

decisions may not be supported by post hoc rationales never communicated to applicant for

43

benefits). Nair, 2009 WL 1635380, at *10; see also Connor v. Sedgewick Claims

Management Services, Inc., 796 F. Supp. 2d 568, 576-77 (D.N.J. 2011); Saket v. Avaya,

Inc. Long Term Disability Plan for Salaried Employees, Civ. A. No. 05-5910, 2007 WL

1827185, at *11-12 (D.NiJ. June 25, 2007).

- Based on the guidance provided in Skretvedt and the consideration of the issue by

other circuit courts and district courts within the Third Circuit, the Court will not consider post

hoc rationalizations except, in limited instances, the Court may do so on an “assuming

arguendo” basis. Thus, in analyzing the previously identified procedural anomalies relevant

to whether the Plan Administrator's decision to deny benefits was arbitrary and capricious,

the Court focuses on those reasons provided to Plaintiff by Anthem and the independent

reviewer.

In conducting this review, “a plan administrator's final, post-appeal decision should

be the focus of review.” Funk v. CIGNA Grp. Ins., 648 F.3d 182, 191 n.11 (3d Cir. 2011),

abrogated on other grounds by Montanile v. Bd. of Trustees of Nat'l Elevator Indus. Health

Benefit Plan, 577 U.S. 136 (2016) (citing 29 C.F.R. § 2560.503-1(h). Funk added that “[tJo

focus elsewhere would be inconsistent with ERISA's exhaustion requirement.” /d. (citing

LaRue v. DeWolff, Boberg & Assocs., Inc., 552 U.S. 248, 258-259 (2008) (noting that

claimants must “exhaust the administrative remedies mandated by ERISA § 503, 29 U.S.C.

§ 1133, before filing suit under § 502(a)(1)(B)”); Metropolitan Life Ins. Co. v. Price, 501 F.3d

271, 280 (3d Cir.2007) (similar). Funk further explained that

44

[a] court may of course consider a plan administrator's pre-final decisions as

evidence of the decision-making process that yielded the final decision, and it

may be that questionable aspects of or inconsistencies among those pre-final

decisions will prove significant in determining whether a plan administrator

abused its discretion. See, e.g., Miller, 632 F.3d at 855-56 (considering

unexplained inconsistencies between a plan administrator's initial and final

disability determinations as a factor suggesting an abuse of discretion). In those

instances, however, the pre-final decisions ought merely to inform a court's

review of the final decision. See generally id.

Funk, 648 F.3d at 191 n.11.

In this case AMR’s September 9, 2019, letter is the final post-appeal decision.

Therefore, the letter and attached Peer Reviewer Final Report (AR 935, 937-40) will be the

prime focus of the Court's review.

A. Procedural Anomalies

The Court will assess procedural anomalies recognized in the Third Circuit, see

supra pp.39-40, deemed relevant to Plaintiff's following allegations: D.D.’s condition was

essentially unchanged from the time of admission to May 8, 2019, (Doc. 38 at 19, 29, 31;

Doc. 53 at 5); Anthem gave inadequate consideration to D.D.’s treating doctors’ opinions

(Doc. 38 at 18-23); Anthem failed to consider all aspects of D.D.’s condition (Doc. 53 at 2);

and AMR was not an independent reviewer (Doc. 38 at 28).

1. Reversal of Position/Inconsistent Treatment of Facts

Plaintiffs allegations that D.D.’s condition was essentially unchanged from the time

of admission to May 8, 2019, (Doc. 38 at 19, 29, 31; Doc. 53 at 5) implicates the procedural

anomalies related to reversal of an earlier decision and inconsistent treatment of facts.

45

As stated in Miller, “[a]n administrator's reversal of its decision to award a claimant

benefits without receiving any new medical information to support this change in position is

an irregularity that counsels towards finding an abuse of discretion.” 632 F.3d at 848 (citing

Post, 501 F.3d at 164-65; Pinto v. Reliance Standard Life Ins. Co., 214 F.3d 377, 393 (3d

Cir.2000), overruled on other grounds by [Metropolitan Life Ins. Co. v.] Glenn, 554 U.S. 105

(2008). While “an initial payment of . . . benefits does not operate as an estoppel” such that

the benefit decision cannot be changed, an absence of meaningful evidence to support the

decision “is cause for concern that weighs in favor of finding that [the] decision was arbitrary

and capricious.” Miller, 632 F.3d at 849 (citations omitted). Similarly, Pinto noted that

‘inconsistent treatment of the same facts [is] viewed with suspicion.” 214 F.3d at 393 (citing

Brown v. Blue Cross & Blue Shield of Ala., 898 F.2d 1556 (11* Cir. 1990), overruling on

other grounds recognized by Kaviani v. Reliance Standard Life Ins. Co., 799 F. App’x 753

(11% Cir. 2020)). Brown stated “[t]hat [the insurance company] would reach opposing

conclusions on the basis of the same evidence seriously challenges the assumptions upon

which deference is accorded to [its] interpretation of the plan.” /d. at 1559. “Unexplained

inconsistency that undermines the rationality of the plan administrator’s decision” is what

triggers the suggestion of arbitrary and capricious conduct. See Martonik v. United of

Omaha Life Ins. Co., Civ. A. No. 1:17-CV-00306, 2019 WL 3777842, at *10 (W.D. Pa. May

8, 2019). Courts have considered a shifting and inconsistent rationale in letters denying a

beneficiary's extended stay at a residential treatment center to be a relevant factor in the

46

arbitrary and capricious inquiry. See, e.g., D.K. v. United Behavioral Health, Civ. A. No.

2:17-CV-1328-DAK, 2021 WL 2554109, at *12-13 (D. Ut. June 22, 2021).

In Miller, the plaintiff claimed that his benefits were abruptly terminated upon an

evaluation of essentially the same information that the plan administrator had previously

found to support an award of benefits. /d. at 848-49. The Circuit Court concluded that “in the

absence of any meaningful evidence to support a change in position, [the administrator's]

abrupt reversal is cause for concern that weighs in favor of finding that its termination

decision was arbitrary and capricious.” Id. at 849. The Circuit Court ultimately gave

“significant weight” to its conclusion that the defendant “reversed its initial position that [the

plaintiff] was disabled and terminated his benefits without receiving supporting information

that differed in any material way from the information upon which it had previously relied.”

Id. at 855-56.

Although this case is distinguishable from Miller because D.D. was approved for

inpatient care at KKI for a limited period and Defendant did not approve additional care,

analysis under Miller and similar decisions is warranted because, arguably, care was denied

without receiving medical information that was materially different from that previously

provided and facts that were materially the same were treated inconsistently. From May 1,

2019, to May 7, 2019, Anthem considered D.D. to be eligible for inpatient care at KKI based

on the information available preadmission. This means Anthem determined that KKI NBU

47

treatment was “medically necessary” upon admission through May 7th, a decision made

pursuant to the Milliman Care Guidelines ("MCG"), see supra p.4.

As set out previously, KKI’s April 30, 2019, Authorization Request includes the □

following information:

_[D.D. is] a 15-year-old male with a psychiatric disorder involving very serious

behavioral dysfunction[.] [D.D.] is previously diagnosed with severe Intellectual

Disability, Autism Spectrum Disorder, Disruptive Behavior Disorder not

otherwise specified, Obsessive-Compulsive Disorder, seizures, and

Macrocephaly Hypokinetic syndrome of childhood agitation. He is nonverbal

with developmental delays. [D.D.] displays persistent and frequent self-

injurious, aggressive, disruptive, destructive, and dangerous behaviors that

have significantly worsened over the past year, particularly the past 8 months.

The increase in frequency and intensity of maladaptive behaviors, particularly

aggression and self-injury, places [D.D.] and others at risk of injury on a daily

basis. The [NBU] team evaluated [D.D.] and concluded that inpatient admission

to the NBU is medically necessary as previous outpatient behavioral services

to treat his severe problem behaviors have not been successful and the danger

he presents to himself and others has persisted and increased.

Specifically, [D.D.] presents with severe aggression (punching, □

pinching, hair pulling, head butting, hitting, kicking, biting others, choking,

bending others fingers backwards), self-injury (head banging, self biting,

punching, forceful dropping to knees, slamming knuckles of feet, bends back

fingers), disruptive and destructive behaviors (biting objects, breaking

objections, throwing items, climbing shelves, kicking walls, moving around in

the car), elopement (running from caregivers, leaving the home, running away

to escape demands), pica (eating of inedible objects such as nail polish,

cleaning erasers, deodorant, paper), rumination, and noncompliance. These

severe problem behaviors occur daily. While [D.D.’s] problem behavior used to

. be more manageable, during the past 8 months, caregivers and providers

report that he now requires intensive management to prevent injury to others

and himself.

(AR 241.) KK] assessed D.D.’s risks, stating that his

48

severe problem behaviors place him and others at severe risk of injury

daily basis. Caregivers and teachers routinely sustain injuries, such as bruises,

cuts, scratches, hits, and kicks. [D.D’s] 1:1 aide at school has a permanently

damaged forearm muscle as a result of his bites. [D.D.] has sustained nose

bleeds, bruises, scratches, lacerations, a chipped tooth, black and swollen

eyes, bite marks, broken skin, and cracked toenails from his self-injury and

head banging. [D.D.] is at risk to himself of concussion, retinal detachment or

severe injury from head banging, as well as elopement from caregivers into

streets and attempt to get out of moving vehicles.

(AR 244.)

Before reviewing Defendant's final decision, i.e., the AMR September 3, 2019, letter

(AR 935) and Peer Reviewer Final Report (AR 937-39), the Court will review Anthem’s

earlier decisions. The Court does so because “questionable aspects of or inconsistencies

among those pre-final decisions” may be significant in determining whether the Plan

Administrator abused its discretion. Funk, 648 F.3d at 191 n.11 (citing 632 F.3d at 855-56).

Anthem’s May 10, 2019, correspondence to D.D. explained why the request for

treatment beyond May 7, 2019, was not approved:

You went to the hospital due to a risk of harming yourself. Your doctor has

asked to extend your stay. The plan clinical criteria considers hospital care

medically necessary for those who are an imminent danger to themselves. The

information we have shows you have improved and you are stable enough to

be safely treated outside of a hospital. You are not at risk of harming yourself.

For this reason, the request for you to remain in the hospital is denied as not

medically necessary. There may be other treatment options to help you, such

as outpatient services. . . . It may help you to know that we reviewed this

request using MCG Guideline Inpatient Behavioral Health Level of Care, Child

or Adolescent (ORG: B-902-IP).

(AR 228.)

49

Following the denial, a level one expedited appeal was submitted and Anthem

upheld the denial. (PSMF 39.) On May 14, 2019, a peer-to-peer call took place between

Anthem’s health plan Medical Director, Charlisa Allen, M.D., and D.D.’s KKI providers,

behavioral analyst, Jonathan Schmidt, Ph.D., and psychiatrist, Elaine Tierney, M.D., after

which Anthem decided that, because of the treatment he received in the hospital, D.D. was

not at a high risk for harm and continued treatment at KKI was not necessary (AR 757-58).

Notably, this rationale appears only in the conclusory “Comments” section of Dr. Allen's

assessment—in the preceding substantive assessment, Dr. Allen does not opine that D.D.

was no longer at a high risk for harm. (See id.) Rather, Dr. Allen notes that from May 1,

2019, to May 7, 2019, D.D. daily exhibited numerous harmful behaviors (to himself and

others) (averaging 132.89 problem behaviors per day) and that KKI’s treatment plan

included, going forward, addressing D.D.’s low platelet count and related medication issues

“in upcoming weeks.” (See AR 757.)

Plaintiff was advised of Anthem’s decision by letter of May 14, 2019. (AR 912-13.)

Anthem provided the following explanation for its denial of inpatient services from May 8,

2019, through May 14, 2019:

Your plan has reviewed your specific circumstances and health condition as

documented in the appeal and medical records provided to us by your treating

physicians. The reviewer, Charlisa Allen MD, is a health plan Medical Director

who is board certified and specializes in Psychiatry. It's her recommendation

that we keep our previous coverage decision. Here’s why:

We reviewed all the information that was given to us before with the first request

for coverage. We also reviewed all that was given to us for the appeal. Your

50

doctor wanted you to have continued hospital care. You were in the hospital

because you were at a high risk for harm. We understand that you would like

us to change our first decision. Now we have new information from another

telephone call with your doctors. We still do not think this is medically necessary

for you. We believe our first decision is correct for the following reason. After

the treatment you got in the hospital, you were no longer at a high risk for harm.

You could have been treated with outpatient services. We based the decision

on the MCG guideline Inpatient Behavioral Health Level of Care, Child or

Adolescent (ORG: B-902-IP).

(AR 912-13.) Anthem’s letter also references the Summary Plan Description’s definition of

Medical Necessity but does not elaborate on its finding on this issue. (AR 913.)

KKl’s May 31, 2019, letter requesting a Voluntary Second Level Appeal included a

lengthy explanation for why “the medical necessity that [D.D.’s] treatment at KKI did not end

on 5/8/19 and continued coverage is both medically necessary and imperative to his long-

term success.” (AR 222.) Anthem’s June 14, 2019, letter denied the appeal, finding further

treatment not medically necessary for basically the same reasons as it had previously, i.e.,

D.D. was in the hospital because he was at high risk for harm and, despite new information,

Anthem believed the first decision was correct because, after the treatment received in the

hospital, D.D. was no longer at a high risk of harm and he could have been treated with

outpatient services. (AR 927-28.)

The reviewing health plan medical director is referenced but not identified by name in

the June 14, 2019. (AR 927.) The reviewer appears to be Abe Soliman, M.D., based on

Anthem’s internal records which indicate that Abe Soliman, M.D., conducted a review

related to the May 31, 2019, appeal and his “Internal MD Rationale” is identical to the text of

51

the second paragraph of Anthem’s June 14, 2019, letter. (See AR 770, 927-28.) Dr.

Soliman’s undated comments indicate the following: —

Decision: Pt has autism and severe intellectual disability. He has long Hx of

aggressive. Pt is medically stable and he has good support system. No

reported SI! or HI. Pt is compliant with meds. Therefore, the medical necessity

criteria do not appear to be met of IP MH. Alternative level of care is OP MH.

(AR 771.) Notably, Dr. Soliman’s June 14, 2019, record entry concerning his second level

appeal chart review includes his assessment that “Pt show no changes. He remains

impulsive and aggressive.” (AR 778.) Thus, Dr. Soliman’s closing notation that “after the

treatment you got in the hospital, you were no longer at a high risk for harm’ (id.) is □

contradicted by his finding that D.D. showed no changes. Moreover, Dr. Soliman’s

statement that “Pt show no changes” contradicts his conclusion that further treatment was

not medically necessary: Anthem considered NBU treatment for D.D. medically necessary

from May 1, 2019, to May 7, 2019; if Dr. Soliman found that D.D. showed “no changes” as

of June 14, 2019, Anthem would have no basis fo alter its initial medical necessity

determination.

In sum, Anthem’s three denial letters indicate that the requests for continued care

were denied based on the assertions that D.D. went to the hospital because he was at a

high risk for harm, Anthem had information showing that D.D. had improved, D.D. was not

at risk or high risk for harming himself, and he could be safely treated outside of a hospital.

See supra. Anthem did not provide any details or citation to medical records; no basis for

the assessed improvement is proffered nor is there support for the risk assessment. In other

OZ

words, Anthem provides no support for its conclusion that D.D. was no longer at risk for

harming himself. Most importantly, as set out above the notes of both medical reviewers

contradict the conclusions stated in their own notes and Anthem’s letters.

Though no specific records were cited or fisbussed in Anthems letters, if the Court

were to consider Defendant's current argument that information provided in the medical

records from May 1, 2019, to May 9, 2019, indicates that D.D. was not at risk for harming

himself as of May 8th (as Anthem asserted conclusorily in its correspondence), the

argument would fail because KKI records do not prdvide the suggested support. Anthem

assessed D.D. to be at a high risk of harm upon admission and acknowledges that D.D.

continued to engage in self-injurious behaviors as of May 9, 2019, (see Doc. 50 at 6-8).

While there may have been periodic improvements in sleep and nutrition during the period

approved by Anthem and instances where D.D.'s affect was neutral and he was not in

distress (see id.), such changes/improvements do not indicate that the risk of harm

assessed to be significant enough for admission was nonexistent or substantially diminished

as of May 9, 2019. Similarly, although KKI’s May 6, Daily Progress Note from the

interdisciplinary team noted that D.D..’s “problem behaviors were variable but on a

decreasing trend . . . [and] he [had] an average of 20 behaviors per hour and now he is 10

behaviors per hour” (AR 437), the assessment does not support Defendant's conclusion

that D.D. was at a significantly reduced risk of harming himself as of May 9th. Defendant

also seeks to undermine the fact that “D.D. continued to engage in self-injurious behaviors”

53

(Doc. 50 at 7) with internal Anthem file notations that “there were no reports of serious injury

or any indication that they were not typical of his base line condition” (id. (citing AR 437,

444)). Defendant's baseline comment cannot be assessen as it is provided without context

or explanation. Defendant does not explain how a lack of serious injury during a limited time

period when a 1:1 staff ratio and numerous safeguards were in place indicates that D.D.

was not at high risk of harming himself. Defendant does not attempt to correlate problem

behaviors being “variable but on a decreasing trend (AR 437) and fewer incidents of

problem behaviors per hour with a lack of risk for harm as stated in the May 10, 2019, letter

(AR 228 (“You are not at risk of harming yourself’)) or a decreased risk of harm as implied

in the May 14, 2019, letter and June 14, 2019, te (AR 913, 927 (“you were no longer at a

high risk for harm”). In light of the fact, recognized by Dr. Allen, that D.D. exhibited an

average of 132.89 problem behaviors a day during the first seven days of his hospitalization

(see AR 757), Defendant's current assessments regarding D.D.’s risk for harm are simply

conclusory." :

In Miller terms, Defendant does not point to “any meaningful evidence to support a

change in position,” 632 F.3d at 849, i.e., to supports denial of the request for continued

care. As in Miller, KKI records “do not differ in any natal respect” from the information

10 Defendant's current argument that D.D. did not pose a risk of “serious harm” to himself or others

as the term is defined for purposes of B-902-IP (see, e.g., Doc. 50 at 19), will be addressed later in the

Memorandum Opinion. For present purposes, the Court notes that Anthem’s denial letters did not use the

term “serious harm’ nor is the term used in the Admission Guidelines (see AR 1021).

54

submitted with KKI’s Authorization Request that Anthem determined supported admission.

Id. With no new material medical information to suppor its decreased risk assessment,

Anthem’s change of position from finding that D.D. varanted inpatient care from May 4,

2019, through May 7, 2019, to finding that he did not do so on May 8, 2019, shows

“inconsistent treatment of the same facts” which the/Court is to view with suspicion, Pinto,

214 F.3d at 393. It is also a situation where “opposing conclusions on the basis of the same

evidence ... Seriously challenges” the deference due under the arbitrary and capricious

standard. Brown, 898 F.2d at 1559.

Turning now to the final decision, the AMR letter merely confirmed Athem’s previous

decision (AR 935) and the analysis applied to the earlier letters equally applies here.

Because the letter refers the reader to the attached Peer Reviewer Final Report for a case

summary and reviewer comments, the Court will also review the report in which the

reviewer expressed his opinions.

At the outset, the AMR reviewer sunmatze “Member Clinical Information,” stating

that D.D. “was reported to have been admitted for worsening symptoms of agitation,

aggression, mood dysphoria, and persistent sinuous behaviors. He was also reported

to have been engaging in property destruction and elopement from home. The patient was

reported to have behaviors related to pica.” (AR aan) The reviewer answered “No” to the

question “Is the proposed treatment medically nacedsary (can provision of the treatment; in

whole or in part, reasonably be expected to be health beneficial for the patient and/or can

55

ft

withholding the treatment, in whole or in part, reasonably be expected to affect the patient's

health adversely)?”. The reviewer notes many potential reasons for continued care that are

not relevant to the reason for D.D.’s admission or treatment course while at KKI, including

suicidal or homicidal ideations, symptoms suggestive of psychosis including command

hallucinations, persecutory delusions, extreme narahola, or symptoms of mania or

hypomania. (See AR 938.) These warrant no discussion, What remains is the reviewer's

assessment that

[t]he clinical information provided does not indicate that the service requested

(inpatient stay from 05/08/2019 forward) is medically necessary or likely to be

successful in treating the patient's symptoms. Acute inpatient psychiatric level

of care would be considered medically necessary when there is imminent risk

-of harm to self or others . . . when the patient has significant agitation and

aggression, which is of acute onset and represents a clear change from □

baseline. ... The patient was not noted to have any significant acute behavioral

symptoms that represented.a change from baseline as of 05/08/2019. □ □ . The

patient was noted to have intermittent episodes of self-injurious behaviors and

intermittent aggression, which appeared to be his baseline related to pervasive

developmental disorder and intellectual disability. ... There was no indication

that the patient had any significant change in daily functioning from baseline.

The patient was not reported to have any significant deterioration from baseline

or emergence of new symptoms during his continued stay on the inpatient unit.

__... There was no indication that the patient required acute inpatient psychiatric

level of care.

(AR 938.)

For reasons similar to those discussed regarding Anthem’s earlier denials, the

. reviewer's statement that “[t]he clinical information provided does not indicate that the —

|

service requested (inpatient stay from 05/08/2019 forward) is medically necessary”

| □

suggests a reversal of position and evidences inconsistent treatment of the same or similar

06

facts. Nothing in the reviewer's assessment suggests the medical necessity decision was

based on information that materially differed from that provided on admission and during the

|

approval period upon which Anthem determined that NBU treatment was medically □

necessary. Because the reviewer does not suggest that D.D.’s condition had improved with

treatment or that he was not at a high risk of harm, the AMR reviewer’s assessment differs

from that repeatedly asserted by Anthem-- that DD had improved and was no longer at a

high risk of harm--and shows different treatment of the same facts. These findings support

the suggestion that Anthem’s denial was an abuse of discretion pursuant to Third Circuit

caselaw. See Miller , 632 F.3d at 848; Pinto, 214 F.3d at 393,11

For the foregoing reasons, the Court concludes that Anthem’s decision to deny

- Coverage from May 8, 2019, forward exhibits an regularity that suggests its decision was

arbitrary and capricious. .

The Court cannot definitively determine the meaning of the AMR reviewer's observations

concerning “baseline” because they are not provided with enough information for the Court to ascertain

what is meant by “baseline” in the context presented. However, if “baseline” were interpreted to be D.D's

condition and symptoms at admission, several statements support the conclusion that the reviewer found

there was no significant change in D.D.’s problem behaviors from the time of admission going forward,

including the following: D.D. “was not noted to have any significant acute behavioral symptoms that

represented a change in baseline as of 05/08/2019”; “[t]he patient was noted to have intermittent episodes

of self-injurious behaviors and intermittent aggression, which appeared to be his baseline related to

pervasive developmental disorder and intellectual disability’; and “[t]he patient was not reported to have

any significant deterioration from baseline or emergence of new symptoms during his continued stay on the

inpatient unit.” (AR 938).

57

2. Consideration of Opinion Evidence

Plaintiffs allegation that Anthem gave inadequate consideration to D.D.’s treating

doctors’ opinions (Doc. 38 at 18-23) implicates the procedural anomaly related to the

consideration of opinion evidence.

Administrators of ERISA plans “are not obliged to accord special deference to the

opinions of treating physicians.” Black & Decker Disability Plan v. Nord, 538 U.S. 822, 831,

(2003). In so holding, the Court explained that

[p]lan administrators, of course, may not arbitrarily refuse to credit a claimant's

reliable evidence, including the opinions of a treating physician. But we hold,

courts have no warrant to require administrators automatically to accord special

weight to the opinions of a claimant's physician; nor may courts impose on plan

administrators a discrete burden of explanation when they credit reliable

evidence that conflicts with a treating physician's evaluation.

Nord, 038 U.S. at 834: see also Stratton v. E.| DuPont De Nemours & Co., 363 F.3d 250,

258 (3d Cir. 2004).

An administrator may not selectively consider and credit medical

opinions without articulating its thought processes for doing so. This is

particularly applicable where, as here, the evidence it claims to rely on favors

its employer and consists of non-treating and non-examining experts and there

is substantial evidence to the contrary. See, e.g., Schwarzwaelder v. Merrill

Lynch & Co., Inc., 606 F.Supp.2d 546, 559 & n. 44 (W.D. Pa. 2009) (discussing

a concern shared with other courts “where, as here, the administrator denies a

claim with reliance on the reports of paper-review consultants, in opposition to

the treating and examining physicians’ consistent and concurring opinions that

the claimant is disabled”); Elms v. Prudential Ins. Co. of Am., No. 06-5127,

2008 WL 4444269, at “18-20 (E.D. Pa. Oct. 2, 2008) (rejecting as a self-

serving, selective use of physicians' reports, Prudential's almost exclusive

reliance on file reviews performed by non-examining physicians as weighed

against evidence from doctors who had treated or examined and had

58

concluded the patient was impaired by significant disabilities).

Ricca v. Prudential Ins. Co. of Am., 747 F. Supp. 2d 438, 445 (E.D. Pa. 2010).

Anthem relied solely on the paper reviews of its non-treating physicians, Dr. Allen

and Dr. Soliman, without articulating its thought process for doing so. The record shows that

the reviews provided by these doctors were cursory and internally contradictory, see supra

op. 10-17, 50, 52-53, whereas Dr. Tierney and Dr. Schmidt provided detailed analysis of

D.D.’s problems, treatment, progress, and prognosis in support of their opinion that D.D.'s

ongoing care on the NBU was medically necessary in both their Voluntary Second Level of

Appeal letter dated May 31, 2019, (AR 222-26) and their request for Independent External

Review letter dated July 9, 2019, (AR 397-404).12

Notably, as discussed above, in contrast to the rationales for denial stated in

Anthem’s letters, outside of their conclusory comments, neither Dr. Allen nor Dr. Soliman

substantively assessed that D.D. had improved since his admission to KKI. See supra pp.

50-53. In fact, Dr. Soliman’s review specifically stated “Pt show no changes. He remains

impulsive and aggressive.” (AR 778 (emphasis added).) Given these findings, the Court

12 AMR's Peer Reviewer Final Report lists the May 31, 2019, letter under “Medical Records” but

does not list the Independent External Review letter dated July 9, 2019. (See AR 937.) The eight-page

appeal letter was enclosed with the cover letter sent to Anthem requesting an independent external review.

(See AR 396.) The letter is not mentioned in Anthem’s July 30, 2019, note listing “[mJaterials for external

appeal.” (See AR 790.) Because the July 9, 2019, letter from Drs. Tierney and Schmidt is part of the

administrative record submitted by Defendant (see Doc. 30-17), it is properly considered in the Court's

analysis. It is also likely that it was reviewed by the AMR reviewer because, in answer to the question of

whether sufficient information was provided for the reviewer to render an opinion, the reviewer stated that

clinical information provided included “appeal letters from treating providers.” (AR 938 (emphasis added).)

59

cannot conclude that the opinions provided by Dr. Allen and Dr. Soliman constitute “reliable

evidence” upon which Anthem could rely without the need for explanation. See Nord, 538

U.S. at 834,

The record shows no such specific explanation or implied consideration by Dr.

Soliman or any other Anthem professional of the rationale for need for continuing care

presented by Dr. Tierney and Dr. Schmidt (See AR 770-71, 778.) The AMR letter stated

that it had considered “attending health care professional's recommendation” (AR 935) and

the reviewer acknowledged receipt of the letter from Dr. Tierney and Dr. Schmidt dated May

31, 2019, but did not address the opinions stated therein, i.e., the treating doctors’ opinions.

(See AR 937-939.) Similarly, no mention is made of the opinions of D.D.’s preadmission

treating providers who opined on the medical necessity of D.D.’s admission to an inpatient

unit. See supra p. 5-6.

Given that Anthem and AMR made only passing reference to the opinions of D.D.’s

treating providers, the Court has no basis to conclude Anthem did not arbitrarily refuse to

credit their opinions. Thus, the Court cannot say that Defendant complied with the

requirements of Nord, in its consideration of treating doctors’ opinions. See 538 U.S. at 834.

Recognizing that the Court may not “impose on plan administrators a discrete burden of

explanation when they credit reliable evidence that conflicts with a treating physician's

evaluation,” id., for the reasons discussed above and additional reasons to follow, the Court

cannot conclude that Defendant credited reliable evidence. Therefore, this is a case where

. 60

Anthem was required to articulate its thought process for crediting non-treating doctors’

opinions over those of treating doctors, Ricca, 747 F. Supp. 2d at 445, and did not do so.

For these reasons, the Court concludes that this factor suggests that Anthem’s decision was

arbitrary and capricious.

3. Analysis of All Relevant Diagnoses

Plaintiff's allegation that Anthem failed to consider all aspects of D.D.’s condition

(Doc. 53 at 2) implicates the procedural anomaly related to the analysis of relevant

conditions.

“An administrator's failure to address all relevant diagnoses in terminating a

claimant's benefits is also a cause for concern that suggests the decision may have been

arbitrary and capricious.” Miller, 632 F.3d at 853 (citing Kosiba, 384 F.3d at 68-69). Miller

noted that, in Kosiba, the circuit court “instructed the district court to consider on remand

whether the administrator properly evaluated the claimant's medical conditions [and]

emphasized that an administrator's failure to take into account multiple documented

diagnoses suggests that a denial of benefits was not the product of reasoned decision-

making.” /d. .

Here, the AMR reviewer noted D.D.’s multiple diagnoses. However, the reviewer did

not evaluate the diagnoses. Because the Court has no basis to conclude that the reviewer

took the multiple diagnoses into account in finding that continued care at KKI was not

medically necessary, this factor also suggests an abuse of discretion.

/ 61

4, Review Independence

Plaintiff's allegation that AMR was not an independent reviewer (Doc. 38 at 28)

implicates the procedural anomaly related to the relationship between the defendant and the

independent reviewer.

In Morgan, the court found that a medical reviewer's report lacked independence

where the administrator not only provided the reviewer with the claimant's medical records,

but also with the administrator's internal reports “that alerted him to what [the administrator]

had decided and why.” 755 F. Supp. 2d at 647. Here, it appears that Anthem provided

internal reports that alerted the AMR reviewer to what Anthem had previously decided and

why.

In AMR’s Peer Review Final Report, “Medical Records’ listed include “PREST

Review Report for DD dated 5/9/19” and “Notes not dated.” (AR 937.) While the Court

cannot ascertain whether the latter are notes from Anthem, the former is presumably a note

on the. “Anthem Care Management Platform” found under the heading “Review Details” on a

page which references “PREST” and indicates May 9, 2019, as the “Review Complete Date”

(see AR 947). Under the “Reason for Referral” heading, “Medical Necessity” is stated. (Id.)

The Review text states:

Reason for referral to MD (Include specific criteria not met, questions/concerns

for MD to address) — Mbr was admitted to KENNEDY KRIEGER INSTITUTE

which is a specialty program for Autism. This is a long term acute unit which

does not appear to be a covered benefit. Mbr does not present with any current

acuity such as no Sl [suicidal ideations], no HI [homicidal ideations], no AHV

62

[auditory verbal hallucinations]. Per UR, loc is acute however appears more

residential.

Confirmed Available Alternat LOC (including provider name, # and available

appt. dates) - Request is for long term care which does not appear to be a

covered benefit.

DX (written-out) - F94.8 STEREOTYPED MOVEMENT DISORDERS, F91.9

Conduct Disorder, unspecified, F84.0 Autistic Disorder, OCD, F72 Severe

intellectual disabilities, Disruptive Mood Dysregulation DO.

(AR 947.)

Finding this procedural anomaly suggestive of an arbitrary and capricious decision

does not hinge on a correlation between the information provided by the plan administrator

relative to its decision and the independent reviewer's medical necessity evaluation—t is

the fact of the provision of such internal reports that matters. 755 F. Supp. 2d at 647. The

report quoted above certainly alerted the AMR reviewer to what Anthem was thinking: D.D.

not covered for the requested care and he did not present with identified symptoms.

(AR 947.) Thus, Anthem’s provision of its internal review assessment to the AMR reviewer

renders the AMR reviewer's independence suspect which presents a procedural anomaly

suggestive of arbitrary and capricious decision-making. Further, while no correlation

between Anthem’s findings and the AMR reviewer's findings need be established, the Court .

notes that the AMR reviewer made similar assessments regarding acuity, suicidal ideations

and homicidal ideations. (See AR 938, 948.)

5. Weighing the Factors

“To decide whether an administrator's termination of benefits is arbitrary and

capricious, we ‘determine lawfulness by taking account of several different, often case-

6S

specific, factors, reaching a result by weighing all together.” Miller, 632 F.3d at 855 (quoting

Glenn, 554 U.S. at 117). The Court will now assess the weight due the factors discussed

above. .

Miller gave “significant weight” to the conclusions that the defendant had “reversed

its initial position without receiving supporting information that differed in any material way

from the information upon which it previously relied and did not fully evaluate all of the

plaintiffs diagnoses [including his risk of experiencing a recurring psychotic episode].” /d. at

855-56. Though contextually distinguishable, Anthem’s denial is similarly deficient. Thus, in

deciding whether Anthem’s decision was arbitrary and capricious, the Court gives moderate

(rather than significant) weight to Anthem’s decision to deny benefits based on facts that did

not differ in any material way from those facts which it deemed suitable to initially approve

admission. The weight assigned is supported by the conclusion that the records shows

inconsistent treatment of the same or similar facts. See, Pinto, 214 F.3d at 393.

The Court gives some weight to Anthem’s failure to address all of D.D.’s diagnoses.

The Court gives significant weight to Anthem’s reliance only on the paper reviews of non-

treating physicians without articulating its thought process for doing so. In deciding what

weight to give the AMR reviewer's potential lack of independence, the Court takes into

account that the AMR is an IRO where, in Morgan, the defendant hired an individual doctor

to conduct an independent review. See 755 F. Supp. 2d at 647. Based on this distinction

64

and the uncertainty of what documents were reviewed in this case, this factor is accorded

little weight. □

Viewing these factors as a whole, the numerous procedural anomalies suggest that

Anthem’s decision was arbitrary and capricious. The following discussion of whether

substantial evidence supports Anthem’s decision bolsters this suggestion.

B. Substantial Evidence

In response to Plaintiff's argument that continued care for D.D. was medically

necessary, Anthem asserts that substantial evidence in the Administrative Record

establishes that continued treatment was not medically necessary. (Doc. 50 at 18.) Anthem

references and relies on the MCG in making medical necessity determinations. (DSMF {

73.) Anthem has identified the MCG B-902-IP, the guideline which addresses “Inpatient

Behavioral Health Level of Care, Child or Adolescent,” as that used to determine whether

continued care at the KKI NBU was medically necessary. (DSMF ] 80.)

In opposition to Plaintiff's position and in support of its continuing care denial,

Anthem specifically argues that substantial evidence supports its conclusion that the

specific conditions described in the MCG discharge criteria were satisfied after May 7, 2019,

and therefore, its benefits decision was not arbitrary and capricious. (Doc. 50 at 18-19.) In

its reply brief, Anthem states that “[t]he administrative record . . . demonstrates that in

making their Medical Necessity determination, Anthem and the IRO relied not just on the

65

MCG but also on the experience, expertise, and professional judgment of their medical

reviewers.” (Doc. 57 at 3.) |

Because Anthem used the MCG B-902-IP and the judgment of its reviewers to

determine medical necessity, the Court will assess whether substantial evidence supports

Anthem’s conclusion regarding specific discharge criteria by looking at the reviewers’

analyses and the B-902-IP criteria at issue. For the reasons previously discussed, the

reviews conducted by Anthem’s doctors, Dr. Allen and Dr. Soliman, do not support

Anthem's medical necessity determination. See supra pp. 49-53, 58. Therefore, when

assessing reviewer support for Anthem’s decision, the Court focuses on AMR’s “Peer

Reviewer Final Report” (AR 937-940).

In asserting that D.D. met all relevant B-902-IP discharge criteria, Defendant asserts

that 1) D.D. did not pose a serious risk of harm to himself or others warranting continued

treatment at KKI, 2) D.D. did not have an impairment of an essential function, 3) D.D. did

not have adverse medication effects that required continued treatment at KKI, 4) providers

and support were available at a lower level of care, and 5) treatment goals for the level of

care were met. (Doc. 50 at 19-25.) Plaintiff responds by questioning the application of the

MCG generally and specifically states that 1) D.D. presented himself in imminent danger to

himself and others after May 8, 2019, 2) the application of the “serious harm’ criteria to D.D.

is inappropriate, 3) providers and supports were not available at a lower level of care, 4)

66

D.D. continued to have significant functional impairment in his abilities to participate in

activities of daily living. (Doc. 53 at 6-10.) | □

Before assessing whether substantial evidence supported the decision to deny

continued care based on MCG B-902-IP and reviewer analysis, the Court looks at Anthem’s

initial determination that D.D.’s inpatient admission was medically necessary through the

MCG lens. It is undisputed that Anthem deemed KKI NBU treatment medically necessary as

of May 1, 2019, based on KKI’s authorization request and documentation supplied with it. In

terms of guideline B-902-IP criteria, this meant that Anthem found the following Admission

Guidelines satisfied:

o Patient risk of severity of behavioral health disorder is appropriate to

proposed level of care as indicated by 1 or more of the following . .

= Imminent danger to self for child or adolescent

= Imminent danger to others for child or adolescent

» Behavioral health disorder is present and appropriate for

inpatient care with ALL of the following:

e Severe Psychiatric, behavioral, or other comorbid

conditions for child or adolescent

e Severe dysfunction in daily living for child or adolescent

+ Treatment services at proposed level of care are indicated

+ Situation and expectations are appropriate for inpatient care for

Child or adolescent

(AR 1021.)

67

In its initial denial letters, Anthem indicated D.D.’s hospital admission was found

medically necessary because he was at a high risk of harm. (AR 228, 912, 927.) Because

Anthem determines medical necessity pursuant to the guideline, it can be inferred that

Anthem also found treatment services at the level of care provided by KKI in the NBU were

indicated and “the situation and expectations were appropriate for inpatient care.” (AR

1021.) For purposes of the MCG Admission Guidelines, “[s]ymptoms or conditions used to

determine the appropriate treatment intensity should be due to the underlying behavioral

diagnosis or represent factors that contribute to destabilization of the underlying diagnosis,

and are acute in nature or represent a significant worsening over baseline.” (AR 1024 n.B.)

Thus, it can be inferred that Anthem found D.D.’s symptoms or conditions to be “acute in

nature or represent a significant worsening over baseline.” (AR 1021, 1024 n.B,) In medical

terms, “acute” means “severe and sudden in onset.”

https://medlineplus.gov/ency/imagepates/18126.htm (last visited April 2, 2024). Because

authorization request and preadmission providers did not suggest that D.D.’s

symptoms or conditions were of “severe or sudden onset” but rather indicated that

admission was sought because of dangerous behaviors that had significantly worsened

over the preceding eight months (AR 241, 252, 255), it can be inferred that Anthem found

admission to the NBU medically necessary because D.D.’s symptoms “represent[ed] a

Significant worsening over baseline” (AR 1024 n.B). Thus, the Court will proceed on the

68

premise that D.D. was being treated at KK! for problem behaviors that “represented a

significant worsening over baseline.” (/d.)

In guideline terms, medical necessity would be determined following admission

pursuant to B-902-IP’s “Recovery Course” and "Discharge Guidelines” provisions. Because

Anthem asserts that Discharge Guidelines were satisfied when it denied continued

coverage, the Court will not discuss “Recovery Course” considerations and will proceed with

an analysis of whether substantial evidence supports Anthem’s determination that continued

treatment was not medically necessary because the relevant Discharge Guidelines were

met after May 7, 2019. The Court focuses mainly on the criteria Anthem relies upon.

As relevant to this case, B-902-IP’s Discharge Guidelines indicate that D.D. needed

continuing inpatient care unless all of the following criteria were met:

1. Risk status was acceptable as indicated by all of the following -

a. D.D.’s danger to himself or others was manageable because (i) he had an

“Absence of Thoughts of ... serious Harm to self or others” or (ii) his

“Thoughts of suicide, homicide or serious Harm. . . [were] present but

manageable at available lower level of care;

b. D.D. and his supports understood the follow-up treatment and crisis plan; and

c. Provider and supports were available at a lower level of care;

2. D.D.’s functional status was acceptable as indicated by the following —

a. No essential function was significantly impaired; or

69

b. An essential function is impaired, but impairment is manageable at available

lower level of care;

3. Medical needs were absent or manageable at a lower level of care as indicated by

absent or manageable adverse medication effects; and

4. Treatment goals for the level of care were met."

In conducting the following analysis, the Court agrees with Defendant's assertion

that Anthem’s use of the MCG to determine medical necessity is appropriate. (See Doc. 57

at 2-3.) The Court agrees with Plaintiffs assertion that the MCG should “not be imposed

automatically” but should be used “in the same manner as any other educational medium

and should not [be relied on] to the exclusion of [professionals and other persons using the

MCG] to the exclusion of their own professional judgment.” (Doc. 53 at 4 (quoting

https:/Avwww.mcg.com/terms-of-use/).) The Court also agrees that the MCG should “be

13 The Discharge Guidelines alternatively provide that “[clontinued inpatient care is generally

needed until . . . inpatient care is no longer appropriate due to patient progress record . . . as indicated by . .

. of improvement indicates need for long-term custodial care.” (AR 1022.) As will be discussed in

detail later in the text, in the Peer Reviewer Final Report, the AMR reviewer answered “No” to the question

“Is the proposed treatment medically necessary (can provision of the treatment, in whole or in part,

reasonably be expected to be health beneficial for the patient and/or can withholding the treatment, in

whole or in part, reasonably be expected to affect the patient's health adversely)?”. (AR 938.) In explaining

his answer, the reviewer conclusorily stated that “[t]he clinical information provided does not indicate that

the service requested is . . . likely to be successful in treating the patient's symptoms.” (See AR 938.)

Although this statement aligns with the Discharge Guideline stating that “inpatient care [was] no longer

appropriate due to patient progress record . . . as indicated by . . . [I]ack of improvement [which] indicates

need for long-term custodial care” (AR 1022), this basis for finding continued treatment not medically

necessary has never been asserted by Anthem and is not supported by the record. Anthem has never

articulated that inpatient care was no longer appropriate because of lack of improvement. Rather, from the

May 10, 2019, denial letter (AR 228) to the current litigation position (see, e.g., Doc. 50 at 18-19), Anthem

has consistently maintained that D.D.’s improvement rendered inpatient NBU care not medically necessary.

70

applied to individual patients on a case-by-case basis.” (Doc. 53 at 5 (quoting H.N. v.

Regence Blue Shield, Civ. A. No. 15-CV-1374 RAJ, 2016 WL 7426496, at *4 (W.D. Wash.

Dec. 23, 2016).

1. Absence of Thoughts of Serious Harm

Defendant argues in its summary judgment briefing that it properly concluded the

“serious harm” criteria for discharge was met because the medical records establish that

D.D. did not pose a risk of serious harm to himself or others and Plaintiff provides no

evidence that D.D. posed such a risk as the term is defined for purposes of B-902-IP. (See

Doc. 50 at 19; Doc. 57 at 4.) The Court considers this a post-hoc rationalization for

Anthem’s denial because the issue was not raised pre-litigation. See supra pp. 39-44.

In connection with this litigation, Defendant supplemented the Administrative Record,

stating that the following definition applies to the term “serious harm” for purposes of B-902-

IP: “Harm to self or another is considered serious if it has a substantial likelihood of causing

death, disability, or major disfigurement.” (Doc. 43 at 3, AR 1050.) Anthem’s three denial

letters expressed their assessment of D.D.’s risk of harm but did not define or characterize

the referenced harm. See, @.g., supra p. 52. No reviewer used the term “serious harm” or

otherwise referenced any aspect of the definition in a rationale for denying coverage.

Nothing in the AMR medical necessity evaluation supports an inference that the reviewer

considered the harm definition proffered by Defendant or found that D.D. had an absence of

thoughts of serious harm to himself or others such that the “[albsence of Thought of...

74

serious harm” aspect of B-902-IP’s Discharge Guidelines risk assessment would be

satisfied. Rather, as will be discussed in more detail below, the AMR reviewer used the term

“imminent risk of harm” in the medical necessity analysis. (See AR 938.)

Further, if the Court were to arguendo consider Defendant's post-hoc argument

regarding serious harm, the Court would find it unavailing. This is so because the fact that

no reviewer used the term, any aspect of the proffered definition, or language found in the

relevant Discharge Guidelines provision as a reason for finding that continuing care was not

necessary strongly indicates that reviewing professionals did not consider this discharge

criteria relevant to D.D. This assessment would be appropriate because the B-902-IP

criteria is framed in terms of the patient’s thought process, i.e., “Absence of Thoughts of...

serious Harm to self or others” (See AR 1022) and the record establishes that D.D.s thought

process regarding harm could not be ascertained. D.D. was non-verbal and therefore could

not orally express his thoughts. He had some ability to express his wishes through non-

verbal communication and the use of technical devices, but nothing in the record suggests

that this limited communication ability extended to assessing complex thoughts such as

thoughts of harm. These considerations indicate that a fair inference can be drawn that

reviewing professionals did not consider the provision at issue applicable to whether

continuing NBU for D.D. was medically necessary."4

14 With the conclusion that substantial evidence does not support Anthem’s determination that the

B-902-IP guideline regarding the need for there to be an absence of thought of serious harm to self or to

another was satisfied, the Court does not suggest that the harm related to D.D.’s problem behaviors could

72

This determination shows that substantial evidence does not support Defendant's

current assertion that it correctly applied the Discharge Guideline provision which uses the

term “serious harm.” Defendant does not argue that an alternative standard was used and

satisfied in this case. Therefore, the Court's finding that substantial evidence is lacking to

support Defendant's application of the serious harm criteria indicates that substantial

evidence does not support Anthem’s basis for finding continuing care unnecessary which, in

turn, means that Anthem’s decision to deny benefits was arbitrary and capricious.

Though not necessary for the disposition of the pending motions, because the lack of

support for Anthem’s decision is apparent in additional respects, the Court will briefly

consider other issues including the harm assessment contained in the “Peer Reviewer Final

Report” and the B-902-IP Discharge Guidelines’ medication management and treatment

goal provisions.

2. AMR Reviewer Risk Assessment

not be considered “serious” as that term is defined in the MCG. Several aspects of the information

contained in the medical records regarding D.D.’s problem behaviors indicate that the potential harm to

those without protective gear and to those present during behavioral outbursts cannot be deemed as a

matter of course not to create the possibility of death, disability, or major disfigurement. The same can be

said for the potential harm to D.D. if he were not closely monitored and controlled. KKI staff had to wear

protective equipment including double padded arm guards and padded gloves for protection and had to

apply a padded helmet to prevent injuries. (AR 399.) D.D. was reportedly at risk to himself of concussion,

retinal detachment, or severe injury from head banging, as well as elopement from caregivers into streets

and attempts to get out of moving vehicles. (AR 244.) Records indicate that D.D. could become

uncontrollable during his behavioral outbursts and the record states that, on more than one occasion, D.D.

attempted to choke his caregiver in the midst of such an outburst. (AR 686, 691.) Given the variability of

D.D.’s problem behaviors throughout the period for which records were provided, there is no indication that

the potential harm associated with the behaviors changed after May 7, 2019. .

73

As set out previously, the reviewer was asked to answer the following question: “Is

the proposed treatment medically necessary (can provision of the treatment, in whole or in

part, reasonably be expected to be health beneficial for the patient and/or can withholding

treatment, in whole or in part, reasonably be expected to affect the patient's health

adversely)?” (AR 938.) The reviewer answered “No.” (/d.) The reviewer first stated that the

requested service (NBU stay “from 5/8/2019 forward”) was not found to be medically

necessary. (/d.) The reviewer then stated that “[t]he clinical information provided does not

indicate that the service requested is . . . likely to be successful in treating the patient’s

symptoms.” (/d.) The following standard was then identified: “[a]cute inpatient psychiatric

level of care would be considered medically necessary when there is imminent risk of harm

to self or others as indicated ... when the patient has significant agitation and aggression,

which is of acute onset and represents a clear change from baseline.” (AR 938.)

The subsequent application of the standard is inadequate to independently provide

substantial evidence for Anthem’s medical necessity determination because it is merely a

string of assertions unsupported by citation to the record and devoid of consideration of

contrary argument and evidence. References to symptoms not relevant to D.D. such as

suicidal ideation, homicidal ideation, psychosis, and mania (AR 938) do not necessarily

undermine the analysis. However, the reviewer's conclusory assertions related to D.D.’s

74

baseline, ongoing symptoms and conditions, and management at a lower level of care need

more than a conclusory sentence to be deemed evidentiary.'5 (/d.)

Notably, the standard used by the reviewer to determine medical necessity assesses

symptoms differently from the similar Admission Guidelines provision, B-902-IP n.B.

Whereas the MCG provision states that the appropriate level of care determination should

be based on symptoms or conditions that “are acute in nature or represent a significant

worsening over baseline” (AR 1024 (emphasis added)), the reviewer states that “[alcute

inpatient psychiatric level of care would be considered medically necessary when there is

imminent risk of harm to self or others as indicated . . . when the patient has significant

agitation and aggression, which is of acute onset and represents a clear change from

baseline” (id. (emphasis added). The distinction between conjunctive and disjunctive

language matters here because, as discussed above, Anthem’s initial medical necessity

determination s aligned with “a significant worsening over baseline” but his symptoms were

not assessed at that time to be acute in nature. Eliminating the need for acuity, as would be

appropriate under the MCG disjunctive symptom assessment standard, the AMR reviewer's

statement would read “[a]cute inpatient psychiatric level of care would be considered

medically necessary when there is imminent risk of harm to self or others as indicated . . .

15 Several assertions involve D.D.'s “baseline” but are of no evidentiary value because the Court

cannot discern what is meant by the term in the given context. See supra p. 57 n.10.

75

when the patient has significant agitation and aggression, which .. . represents a clear

change from baseline.” (AR 938.)

The reviewer does not provide a specific citation for the standard asserted or

indicate its broad acceptance in the context under consideration. (/d.) Given the

circumstances, interpreting the reviewer's medical necessity finding through the MCG

symptom-assessment lens would be appropriate if the reviewer's assessment were to be

considered an alternative to the “serious harm” provision in the MCG.

The record strongly supports a conclusion that continued inpatient psychiatric care

would be medically necessary for D.D. under this standard because “there is imminent risk

of harm to self or others as indicated .

This text is long and has been trimmed here. Open the source document for the complete record.