Hewko v. Regence Blueshield

• Court: District Court, D. Alaska
• Decided: April 19, 2021
• Docket: 3:19-cv-00169
• Status: Unknown

Opinion

3 IN THE UNITED STATES DISTRICT COURT

4 FOR THE DISTRICT OF ALASKA 5

6 PETER HEWKO, 7 Plaintiff, Case No. 3:19-cv-00169-JWS 8 9 vs. ORDER ON MOTIONS 10 COFFMAN ENGINEERS, INC.; FOR SUMMARY JUDGMENT 11 COFFMAN ENGINEERS, INC. Docs. 77 and 101 WELFARE PLAN; REGENCE BLUE 12 SHIELD,

13 Defendants. 14

16 I. MOTIONS PRESENTED 17 At docket 77 Defendant Regence Blueshield (Regence) filed a motion for 18 partial summary judgment, to which Defendant Coffman Engineers, Inc. and 19 20 Coffman Engineers, Inc. Welfare Plan (collectively, Coffman) joined at docket 78. 21 The motion seeks dismissal of Plaintiff’s first two claims, which are based on a 22 denial of benefits. Plaintiff Peter Hewko (Plaintiff) filed his response and his cross- 23 24 motion for summary judgment at docket 101. Regence filed its response/reply at 25 docket 105. Plaintiff replied at docket 111. Regence filed a surreply with the court’s 26 permission at docket 118. Oral argument would not be of assistance to the court. 27 28 1 II. BACKGROUND 2 Plaintiff was formerly employed by Coffman, which provides health insurance 3 benefits to its employees by and through a self-funded benefits plan, the Coffman 4 5 Engineers, Inc. Welfare Plan (the Plan). The Plan is regulated and governed by the 6 Employee Retirement Income Security Act (ERISA). Regence is the “Claims 7 Administrator” for the Plan and as such provides administrative services for claims 8 9 made under the Plan. Regence has discretion under the Plan, as the Claims 10 Administrator, to interpret the Plan and make benefit determinations,1 but Regence 11 does not assume any financial risk or obligations with respect to claims.2 All covered 12 medical services and supplies are paid for by Coffman.3 13 14 In June of 2016, while employed with Coffman and eligible for benefits under 15 the Plan, Plaintiff suffered a cerebral stroke. He was hospitalized and incurred 16 substantial medical expenses both during and after his hospitalization, including 17 18 expenses stemming from rehabilitative services. The Plan had a provision covering 19 rehabilitation services. Under that provision, Plaintiff’s rehabilitative therapy was 20 covered, but the benefit was limited to 30 inpatient days per calendar year and 25 21 22 outpatient visits per calendar year.4 In April of 2017, Plaintiff’s mother, Jane 23 Hewko, learned that there was a provision in the Plan that covered 24 25 1 A.R. 3540. 26 2 A.R. 3542, 3482. 27 3 A.R. 3482. 28 4 A.R. 3508, 3586, 3664 1 neurodevelopmental therapy services. That provision included coverage for 2 unlimited inpatient therapy and 25 outpatient therapy visits per calendar year.5 3 Plaintiff, through his mother, wrote Regence to request that Plaintiff’s family be 4 5 reimbursed for out-of-pocket costs related to Plaintiff’s rehabilitation that she 6 believed should have been covered under the neurodevelopmental therapy provision, 7 because unlike the rehabilitation services provision it provides unlimited inpatient 8 9 therapy.6 Regence denied the request, explaining that it had never received a claim 10 from one of Plaintiff’s providers that showed Plaintiff was eligible for 11 neurodevelopmental therapy.7 Regence argues that this decision is correct under the 12 Plan. It asserts that Plaintiff was only eligible for benefits under the rehabilitation 13 14 services provision because, based on what was submitted to Regence by his 15 providers, therapy was needed to help him regain skills or functions that he had lost 16 as a result of an illness. It asserts that Plaintiff was not eligible for benefits under the 17 18 neurodevelopmental therapy provision because that provision only applies to services 19 needed to treat delays in normal development and unrelated to an injury or illness. 20 This ERISA lawsuit followed. Plaintiff asserts three claims against 21 22 Defendants.8 The first is based on a denial of benefits. The complaint alleges that 23 Regence abused its discretion by denying him neurodevelopmental therapy benefits. 24 25 5 A.R. 3501, 3579, 3657 26 6 A.R. 1355-1357. 27 7 A.R. 1363-1364. 28 8 Doc. 61. 1 It also alleges that Regence misrepresented the available coverage by telling Plaintiff, 2 his family, and the hospital that his coverage for restorative therapies was limited to 3 30 inpatient days and not informing him about the unlimited inpatient benefits 4 5 available under the neurodevelopmental therapy provision. The complaint alleges 6 that Regence abused its discretion when it failed “to engage [in] adequate and 7 reasonable communications . . . regarding [Plaintiff’s] benefits under [the Plan] and 8 9 what was required to obtain those benefits . . . ” and that his appeal rights were not 10 adequately explained.9 11 The second claim is one for equitable surcharge. Plaintiff alleges that as a 12 result of the denial by Regence, he has had to pay for medical, rehabilitative, or 13 14 attendant care that should have been paid for under the terms of the Plan. He 15 requests reimbursement from Defendants. 16 The third claim is that Regence and Coffman failed to provide requested 17 18 information and documents related to the Plan and that this failure prejudiced his 19 efforts to obtain benefits. He requests an award pursuant to 29 U.S.C. § 1132(c)(1) 20 and/or (c)(3). 21 22 Regence filed this motion for partial summary judgment on Plaintiff’s first 23 two claims because “they are predicated on [Plaintiff’s] mistaken claim that he is 24 entitled to neurodevelopmental therapy benefits and that Regence misadvised him 25 26 27

28 9 Doc. 61 at p. 8. 1 regarding whether he was entitled to those benefits.”10 It asserts that the plain 2 language of the Plan unequivocally covers Plaintiff’s therapy under the rehabilitative 3 services benefit and that even if there were some ambiguity Regence’s interpretation 4 5 is entitled to deference as reasonable. Given that Plaintiff was not eligible for 6 neurodevelopmental therapy benefits, Regence argues, it did not fail to inform him 7 about the availably of those benefits. Plaintiff, in turn, requests summary judgment 8 9 in his favor arguing that the Plan’s provision for unlimited inpatient 10 neurodevelopmental therapy benefits applied to his situation and that Regence’s 11 decision should not be accorded deference under the abuse of discretion standard 12 because of Regence’s errors and miscommunication. Regence does not seek 13 14 summary judgment as to Plaintiff’s third claim. 15 III. STANDARD OF REVIEW 16 Where an ERISA plan grants “discretionary authority to determine eligibility 17 18 for benefits or to construe the terms of the plan” the default standard of review is for 19 abuse of discretion.11 Here, it is undisputed that the Plan grants Regence 20 discretionary authority to determine eligibility for benefits and to construe the Plan’s 21 22 terms and conditions. Consequently, Regence’s interpretation of the Plan’s 23 24 25

26 10 Doc. 77 at p.2. 27 11 Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989); Tapley v. Locals 302 & 612 of Int’l Union of Operating Eng’rs-Emp’rs Const. Indus. Ret. Plan, 728 F.3d 1134, 28 1139 (9th Cir. 2013). 1 provisions addressing rehabilitative and neurodevelopmental therapy benefits is 2 reviewed for abuse of discretion. 3 While a Rule 56 motion can be filed in an ERISA case governed by an abuse 4 5 of discretion standard, “[t]raditional summary judgment principles have limited 6 application” in such cases.12 “[T]he usual tests of summary judgment, such as 7 whether a genuine dispute of material fact exists, do not apply.”13 Instead, a motion 8 9 for summary judgment is “merely the conduit to bring the legal question before the 10 district court.”14 11 IV. DISCUSSION 12 Regence’s interpretation of the Plan 13 14 Plaintiff received coverage for his restorative therapy pursuant to the Plan’s 15 rehabilitation services provision. The benefits under that provision were limited in 16 nature. After an inquiry from Plaintiff’s mother as to whether he could be covered 17 18 under the more generous neurodevelopmental therapy provision, Regence determined 19 that Plaintiff was not eligible for benefits under that provision because it only 20 covered therapy needed to restore function due to a developmental delay and not due 21 22 to an illness, such as a stroke. When reviewing Regence’s interpretation of the Plan 23 for abuse of discretion, the court must grant its decision a “high level of deference.”15 24 25 12 Stephan v. Unum Life Ins. Co. of Am., 697 F.3d 917, 929 (9th Cir. 2012). 26 13 Id. at 930 (quoting Nolan v. Heald College, 551 F.3d 1148, 1154 (9th Cir. 2009)). 27 14 Id. 28 15 Tapley, 728 F.3d at 1139. 1 The court will not disturb the decision unless the interpretation is “not grounded on 2 any reasonable basis.”16 Regence’s interpretation of the Plan as to coverage “need 3 not be the one this court would have reached, but only an interpretation which has 4 5 rational justifications.”17 This standard, however, is not necessarily a rubber stamp. 6 The court must closely read the contested terms and apply basic principles of contract 7 interpretation to the analysis.18 Consequently, Regence’s interpretation constitutes an 8 9 abuse of discretion standard if it: (1) conflicts with the plain language of the Plan; (2) 10 “renders nugatory” other provisions in the Plan; or (3) “lacks any rational nexus” to 11 the primary purpose of the Plan.19 12 The court turns first to the plain language of the Plan’s neurodevelopmental 13 14 therapy provision. That provision reads as follows: 15 NEURODEVELOPMETAL THERAPY. . . 16 The Plan covers inpatient and outpatient neurodevelopmental therapy services. . . . To be covered, such services must be to restore or 17 improve function. Covered Services include only physical therapy, 18 occupational therapy and speech therapy and maintenance service, if significant deterioration of the Claimant’s condition would result 19 without the service. You will not be eligible for both the 20 Rehabilitation Services benefit and this benefit for the same services for the same condition.20 21 22

23 16 Id. (quoting Oster v. Barco of Cal. Emps.’ Ret. Plan, 869 F.2d 1215, 1218 (9th Cir. 1988)). 24 17 Id. at 1140 (quoting Smith v. CMTA-IAM Pension Trust, 654 F.2d 650, 655 (9th Cir. 25 1981)). 26 18 Id. 27 19 Id. 20 A.R. 3501, 3579, 3657. There is a slight difference in wording in the 2018 version, but 28 that difference is not relevant to the court’s analysis. 1 Read alone, the provision covering neurodevelopmental therapy is unclear because 2 the term “neurodevelopmental” is not defined in the Plan, and the use of the phrase 3 “restore or improve lost function” could reasonably suggest that it covers therapy 4 5 needed to regain function a claimant once had. However, Regence’s determination 6 that this provision covers therapy needed only as a result of delays in normal 7 development does not conflict with its plain language. It falls within the ordinary 8 9 sense of the term “neurodevelopmental,” which is defined as “relating to, or 10 involving the development of the nervous system.”21 Development, in turn, is 11 defined as “related to growth” or “[t]he growth or formation of an organ or other 12 structure that is a natural part of the anatomy of an organism.”22 Neurodevelopmental 13 14 disorders are generally described as “a group of conditions with onset in the 15 developmental period[,] . . . typically manifest[ing] in early development . . . and are 16 characterized by developmental deficits that produce impairments of personal, social, 17 18 academic, or occupational functioning.”23 Indeed, Regence’s interpretation 19 corresponds with the Washington Administrative Code’s description of 20 “neurodevelopmental therapy” as consisting of therapy needed “to restore or improve 21 22 function based on developmental delay.”24 23

24 21 Neurodevelopmental, Oxford English Dictionary, https://www.oed.com/view/Entry/126386 (last visited April 14, 2021). 25 22 Development, Oxford English Dictionary, https://www.oed.com/view/Entry/51434 (last 26 visited April 14, 2021). 27 23 Diagnostic and Statistical Manual of Mental Disorder, S2H1 (5th ed. 2013). 24 Wash. Admin. Code 284-43-5642(10)(a)(i). The parties do not dispute that Washington 28 law applies under the Plan. 1 Regence’s interpretation of neurodevelopmental therapy as applying only to 2 those needing therapy because of a developmental delay does not render other 3 provisions in the Plan “nugatory.” To the contrary, this interpretation is all the more 4 5 reasonable when considered in light of the rehabilitation services provision. The 6 rehabilitative services provision in the 2016 version of the Plan reads as follows: 7 REHABILITATION SERVICES . . . 8 The Plan covers inpatient and outpatient rehabilitation services 9 (physical, occupational and speech therapy services only) and accommodations as appropriate and necessary to restore or improve 10 lost function cause by Illness or Injury. You will not be eligible for both the Neurodevelopmental Therapy benefits and this benefit for the 11 same services for the same condition.25 12 It specifically identifies when coverage under this provision is triggered: when a 13 14 claimant needs therapy to restore or improve “lost function caused by Illness or 15 Injury.”26 A stroke falls within the Plan’s definition of illness.27 16 The distinction between rehabilitative therapy and neurodevelopmental 17 18 therapy is even more clear in the revised rehabilitation services provision as it is set 19 forth in the 2017 and 2018 versions of the Plan, which read as follows: 20 The Plan covers inpatient and outpatient rehabilitation services 21 (physical, occupational and speech therapy services only) and 22 accommodations as appropriate and necessary to help a person regain, maintain, or prevent deterioration of a skill or function that has been 23 acquired but then lost or impaired due to Illness, Injury or disabling 24 condition. You will not be eligible for both the Neurodevelopmental 25 26 25 A.R. 3508. 27 26 A.R. 3508. 28 27 A.R. 3544, 3624, 3702. 1 Therapy benefit and this benefit for the same services for the same condition.28 2

3 The provision clarifies that it applies when rehabilitation is needed to help a claimant 4 regain a function that he once had but lost, which would be the situation occurring 5 with a stroke. Nothing about Regence’s interpretation lacks a rational nexus to the 6 7 purpose of the Plan. 8 In sum, the court concludes that Regence’s interpretation of the Plan and its 9 resulting decision that Plaintiff did not qualify for the neurodevelopmental therapy 10 benefit was not an abuse of discretion. It is a reasonable to conclude that a claimant 11 12 can only be covered for restorative services under the neurodevelopmental therapy 13 provision if those services are meant to restore normal levels of functioning after a 14 diagnosis of developmental delay and that such services rendered after a stroke fall 15 16 under the rehabilitative services provision. 17 Other factors related to abuse of discretion review 18 Plaintiff argues that this court should apply a level of skepticism to Regence’s 19 20 decision here, because “a claims administrator’s discretionary authority can be 21 overrode (sic) when there is evidence of bias driven decision making or flagrant 22 procedural violations.”29 The abuse of discretion standard is not outright replaced by 23 a de novo standard except in the “rare class of cases” where the “administrator 24 25 engage[d] in wholesale and flagrant violations of procedural requirements of ERISA” 26 27 28 A.R. 3586, 3664-65. 28 29 Doc. 101 at p. 24. 1 such as “failing to comply with virtually every applicable mandate of ERIA.”30 2 Instead, the existence of a procedural irregularity is simply a factor to be considered 3 in deciding whether an administrator’s decision was an abuse of discretion.31 4 5 Evidence that the administrator “engaged in an ongoing, good faith exchange of 6 information” with the claimant suffices to accord broad deference to the decision 7 despite any procedural errors.32 The same is true of a conflict of interest. It is a 8 9 factor to be considered on a case-by-case basis.33 “An egregious conflict may weigh 10 more heavily (that is, may cause the court to find an abuse of discretion more readily) 11 than a minor, technical conflict might.”34 Even in a situation where there is a 12 structural conflict of interest—where the same entity which makes the benefits 13 14 determination is that same entity funding the ERISA plan— the decision will still be 15 accorded deference if unaccompanied by “evidence of malice, of self-dealing, or of a 16 parsimonious claims-granting history.”35 17 18 While Plaintiff acknowledges that Regence does not have a structural conflict 19 of interest because it does not fund the Plan, it argues that the court should 20 nonetheless look skeptically upon its decision given its overall conduct here. In 21 22 support of his position, he cites this court’s decision in Mason v. Federal Express 23

24 30 Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 971 (9th Cir. 2006). 25 31 Id. at 972. 32 Id. (internal quotation marks omitted). 26 33 Id. at 968. 27 34 Id. 28 35 Id. 1 Corporation.36 In Mason, this court concluded that the plan administrator was 2 operating under a conflict of interest even though a structural conflict was not 3 present. It gave credence to the argument that the claims administrator had financial 4 5 incentives to provide favorable financial results for the company funding the ERISA 6 plan based on specific factual and procedural irregularities related to the 7 administrator’s review of the claimant’s medical record—including the 8 9 administrator’s attempt to influence a medical determination regarding whether the 10 claimant was disabled.37 11 There are no equivalent irregularities or potential conflicts in the record here. 12 Plaintiff points to two denials by Regence to show that its decision making was 13 14 irregular here. A couple of months after his stroke, Regence denied Plaintiff’s pre- 15 authorization request for a neurorehabilitative program offered through Rehab 16 Without Walls, a home health care service.38 Coverage for Rehab Without Walls 17 18 depended on the Plan’s separate home health care provision, not the 19 neurodevelopmental therapy provision. Indeed, the program offered through Rehab 20 Without Walls was described as a home neurorehabilitative program, not a 21 22 neurodevelopmental program.39 Regence denied the preauthorization request 23 because it concluded that Rehab Without Walls provided and charged for premium 24 25 36 165 F. Supp. 3d 832 (D. Alaska 2016). 26 37 Id. at 850-56. 27 38 A.R. 517-19. 28 39 A.R. 511. 1 home health services that were not medically necessary.40 This specific denial itself 2 is not at issue in this case41 and the denial does not otherwise cast doubt on 3 Regence’s interpretation of the neurodevelopmental therapy provision. It does not 4 5 suggest a concerning irregularity or inconsistency in the record, a failure to 6 investigate, or the presence of bias or self-dealing. 7 The same is true of Regence’s 2018 denial of Plaintiff’s pre-authorization 8 9 request for a long-term stay at Quality Living in Omaha, Nebraska, which is a skilled 10 nursing facility providing rehabilitation services. Coverage for this stay had to meet 11 the requirements under the Plan’s skilled nursing facility provision, although 12 Plaintiff, through his mother, asserted it could be covered under the 13 14 neurodevelopmental therapy provision. Regence denied the request as not medically 15 necessary, but Plaintiff appealed that decision, and as a result of that appeal, Regence 16 approved a limited 10-day stay under the Plan’s skilled nursing facility provision. 17 18 Plaintiff now argues that the 10-day stay was far less than what was authorized under 19 any of the various therapy provisions; but whether a longer stay should have been 20 authorized under the skilled nursing facility provision is not at issue in this case. 21 22 Rather, the complaint alleges that this stay should have been authorized pursuant to 23 his neurodevelopmental therapy benefits, which Regence reasonably determined 24 25

26 40 A.R. 517. 27 41 There was no appeal filed to challenge Regence’s determination that the offered home health services of Rehab Without Walls was medically necessary, and the complaint in this 28 case does not address this issue specifically. 1 were not available to Plaintiff. The facility did not propose treatment that could be 2 coded as neurodevelopmental therapy. Indeed, the record shows that the Quality 3 Living representative told Regence that the facility was not providing developmental 4 5 therapy services and that it was her understanding that stroke victims were not coded 6 as having developmental conditions.42 Again, nothing about Regence’s limited 7 authorization suggests the presence of bias or self-dealing, a failure to review the 8 9 claim, or some other inconsistency.43 10 Plaintiff argues that procedural errors and misleading communications by 11 Regence as to his neurodevelopmental therapy benefits weigh heavily against 12 Regence in the abuse of discretion analysis. He relies on a letter his mother received 13 14 on August 31, 2017 from Regence.44 That letter was in response to her July 26, 2017 15 letter to Regence, in which she challenges Regence’s failure to inform her about the 16 Plan’s neurodevelopmental therapy benefits.45 Her letter is premised on her belief 17 18 that Plaintiff was in fact eligible for such benefits; she complains in the letter that if 19 Regence would have informed her about the availability of these benefits Plaintiff 20 would have been able to remain in the hospital longer, and she asserts that the Plan’s 21 22 neurodevelopmental benefits should have covered more of his rehabilitation. 23 24 42 Doc. 111-2 at pp. 12-14. 25 43 Indeed, Regence points to evidence that the 10-day stay could be extended depending on 26 whether his providers at Quality Living could show that Plaintiff had made progress at the facility during his stay. A.R. 1184-85. 27 44 A.R. 1363-1364. 28 45 A.R. 1356-57. 1 Regence’s response letter states that the Plan does in fact provide for 2 neurodevelopmental therapy benefits but that “[b]enefits are applied to services on 3 claims submitted to Regence based on the diagnosis codes listed on the claims by the 4 5 performing providers.”46 Regence goes on to explain that Plaintiff’s care providers 6 had not submitted any claims with the necessary neurodevelopmental diagnosis code 7 and therefore he was not eligible for reimbursement under that provision.47 While 8 9 the letter does not explain why Plaintiff’s injuries do not fall within the confines of 10 the neurodevelopmental therapy provision, it places the onus on Plaintiff to discuss 11 the diagnosis with his providers. The letter is not egregiously misleading, nor does it 12 guarantee coverage under the neurodevelopmental therapy provision. In it, Regence 13 14 clearly rejects Plaintiff’s request for reimbursement and explains that Plaintiff will 15 not be able to receive such benefits unless Regence receives a claim from his treating 16 providers that is coded as neurodevelopmental. The denial is consistent with its own 17 18 internal communications.48 19 Plaintiff also argues that Regence failed to respond to his attorney’s letter 20 dated January 25, 2019.49 Like this lawsuit, the letter is premised on the assumption 21 22 that Plaintiff had been entitled to neurodevelopmental benefits and therefore more of 23 his therapy should have been covered under the Plan. It also specifically challenges 24 25 46 A.R. 1363. 26 47 A.R. 1364. 27 48 A.R. 1359-62. 28 49 A.R. 3367-71. 1 Regence’s denial for pre-authorization to stay at Quality Living. Regence argues that 2 it did discuss the letter with Plaintiff’s attorney and was told that it was not an appeal 3 of any specific decision but rather was a legal complaint.50 The letter was routed to 4 5 Regence’s legal department.51 Plaintiff disputes the veracity of Regence’s account 6 and maintains that Regence did not properly follow up on this appeal letter.52 The 7 court need not decide the issue, because even if Regence failed to properly process 8 9 the letter as an appeal, any such irregularity does not warrant a finding that Regence 10 abused its discretion in handling Plaintiff’s continued demands for 11 neurodevelopmental therapy benefits. There was an open line of communication 12 between Regence and Plaintiff, and Regence told Plaintiff that none of his providers 13 14 coded the services rendered to him as neurodevelopmental to warrant the application 15 of those Plan benefits. 16 In his reply, Plaintiff provides the transcripts of phone calls between his 17 18 mother and a Regence representative in late 2018 as evidence that Regence admitted 19 that he should have received neurodevelopmental therapy benefits or at least 20 egregiously misled him as to Regence’s position. Indeed, in the first conversation it 21 22 appears that the representative did not understand the neurodevelopmental therapy 23 24 25 50 Doc. 105 at pp. 9-10; Doc. 106. 51 Doc. 105 at p. 10; Doc. 106. Regence filed a motion to supplement the administrative 26 record with an internal email that included task notes related to these discussions. Plaintiff 27 did not file an objection to the motion itself, but he objects to the relevancy and veracity of these notes in his reply brief. 28 52 Doc. 111 at p. 20. 1 benefit or what could trigger eligibility for the benefit. She was clearly confused as 2 to how the neurodevelopmental therapy benefit differed from the rehabilitative 3 services benefit.53 She made many, what appear to be, incorrect or misleading 4 5 statements. However, a review of these conversations indicate this representative 6 nonetheless made clear that the benefits Regence provides under the Plan depends on 7 what the health care provider codes for treatment.54 She told Plaintiff’s mother she 8 9 would call the provider at issue, which was Quality Living, and discuss her 10 understanding of the benefit.55 The Regence representative then placed a call to 11 Quality Living and that facility’s representative informed her that it does not bill 12 treatment as developmental because, while there is no age restriction on who can 13 14 obtain developmental therapy, such treatment does not apply to people requiring 15 rehabilitation due to a stroke.56 After that discussion, on December 5, 2018, 16 Regence’s representative told Plaintiff’s mother that she had researched the issue 17 18 further and that a stroke is not considered neurodevelopmental under the applicable 19 list of diagnosis codes.57 She stated that neurodevelopmental therapy occurs when a 20 patient needs to regain a function that he never had.58 21 22 23

24 53 See, e.g, doc. 111-1 at pp. 14-15. 25 54 Id. at pp. 5, 22. 55 Id. at pp. 15, 19. 26 56 Doc. 111-2 at pp. 12, 14. 27 57 Doc. 111-3 at pp. 2-3. 28 58 Id. 1 These various discussions show that Regence was in fact working with 2 Plaintiff and engaging in a good faith effort to understand the full possibility of his 3 benefits and to be responsive to his continued demand for coverage under the Plan’s 4 5 neurodevelopmental therapy benefit. Consequently, despite any procedural errors or 6 miscommunications that may have occurred, there is nothing in the record casting 7 doubt on whether Regence’s interpretation should be accorded deference. 8 9 V. CONCLUSION 10 Based on the preceding discussion, Regence’s motion for partial summary 11 judgment at docket 77 is GRANTED. Plaintiff’s cross motion for summary judgment 12 at docket 101 is DENIED. Plaintiff’s claims for denial of benefits and equitable 13 14 surcharge are hereby dismissed. 15

16 IT IS SO ORDERED this 19th day of April, 2021, at Anchorage, Alaska. 17 18 /s/ John W. Sedwick 19 JOHN W. SEDWICK 20 Senior United States District Judge

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