# DeMarinis v. Anthem Insurance Companies, Inc.

> District Court, M.D. Pennsylvania · April 10, 2024

URL: https://www.frixlaw.com/law-library/cases/10667536

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** April 10, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10667536

## How later opinions describe it (automated extraction)

- 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)”
- explaining that, “under most circumstances,” the administrative record “cannot be supplemented during litigation’

## Opinion text

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 dist

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10667536. Public record. Not legal advice.