N.C. v. Premera Blue Cross

• Court: District Court, W.D. Washington
• Decided: March 31, 2023
• Docket: 2:21-cv-01257
• Status: Unknown

Opinion

1 2 3

4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 N.C., individually and on behalf of A.C., a CASE NO. 2:21-cv-01257-JHC 8 minor, ORDER 9 Plaintiff, 10 v. 11 PREMERA BLUE CROSS, 12 Defendant. 13

14 I 15 INTRODUCTION 16 This matter comes before the Court on the parties’ cross-motions for summary judgment. 17 Dkts. ## 48, 53. The Court has considered the motions and responses (Dkts. ## 48, 53, 59, 61, 18 63, 64), the parties’ supplemental briefs filed on March 6, 2023 (Dkts. ## 69, 70), the 19 administrative record (Dkts. ## 50, 51, 52), and the applicable law. Being fully advised, the 20 Court GRANTS Plaintiff’s motion in part and awards judgment for Plaintiff on her claim for 21 denial of benefits under 29 U.S.C. § 1132(a)(1)(B). The Court otherwise DENIES the motions. 22 23 24 1 II 2 BACKGROUND 3 Plaintiff N.C. seeks reimbursement for her son A.C.’s 14-month stay at Change Academy

4 Lake of the Ozarks (“CALO”) under her contract with Defendant Premera Blue Cross 5 (“Premera”) for health care reimbursement. Plaintiff asserts two causes of action: (1) a claim for 6 recovery of benefits under the Employee Retirement Income Security Act of 1974 (“ERISA”), 7 29 U.S.C. § 1132(a)(1)(B), and (2) a claim for violation of the Mental Health Parity and 8 Addiction Equity Act of 2008 (“Parity Act”) under 29 U.S.C. § 1132(a)(3). This order includes 9 additional factual and procedural background information in the findings below. 10 III 11 DISCUSSION 12 A. Plaintiff’s Claim for Recovery of Benefits under 29 U.S.C. § 1132(a)(1)(B)

13 ERISA provides an employee a cause of action for the improper denial of benefits under 14 an employee welfare plan. See generally Moyle v. Liberty Mut. Ret. Ben. Plan, 823 F.3d 948 15 (9th Cir. 2016). Cross-motions for summary judgment in the ERISA context are merely a 16 vehicle for deciding the case; the “usual tests of summary judgment, such as whether a genuine 17 dispute of material fact exists, do not apply.” Bendixen v. Standard Ins. Co., 185 F.3d 939, 942 18 (9th Cir. 1999). 19 a. Standard of Review 20 The Court, in reviewing the administrative record for a plan administrator’s denial 21 decision, applies a de novo standard of review unless the plan provides to the contrary. See 22 Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). If the plan grants the

23 administrator “discretionary authority to determine eligibility for benefits,” the Court reviews the 24 administrator’s decision for an abuse of discretion. Id. But the plan does not always determine 1 the issue. Under ERISA, state laws regulating insurance are saved from preemption and may 2 require de novo review. See 29 U.S.C. § 1144(b)(2)(A). 3 Here, Washington law requires de novo review. Wash. Admin. Code § 284-44-015. The

4 Ninth Circuit has not yet decided how this regulation applies in ERISA cases, but one district 5 court concluded that it “clearly prohibits discretionary clauses in the health care services 6 context.” Osborn by & through Petit v. Metro. Life Ins. Co., 160 F. Supp. 3d 1238, 1246 (D. Or. 7 2016); see also Bourland v. Hartford Life & Acc. Ins. Co., No. C13–6056 BHS, 2014 WL 8 4748218, at *1 n.1 (W.D. Wash. Sept. 24, 2014). And several courts have held that a nearly 9 identical regulation voiding discretionary clauses in disability insurance policies is not 10 preempted by ERISA, making de novo review mandatory for such policies. See Murray v. 11 Anderson Bjornstad Kane Jacobs, Inc., No. C10–484 RSL, 2011 WL 617384, at *3 (W.D. Wash. 12 Feb. 10, 2011) (upholding and applying WAC 284-96-012); Landree v. Prudential Ins. Co. of

13 Am., 833 F. Supp. 2d 1266, 1274 (W.D. Wash. 2011) (following Murray); cf. Orzechowski v. 14 Boeing Co. Non-Union Long-Term Disability Plan, Plan No. 625, 856 F.3d 686, 694 (9th Cir. 15 2017) (an insurance regulation can reach discretionary language in plan documents as well as 16 insurer-issued policy). Here, the parties agree that de novo review applies. Dkt. # 68 at 4, 16. 17 On de novo review, the Court conducts a bench trial on the record, and makes findings of 18 fact and conclusions of law based on that record. See Walker v. Am. Home Shield Long Term 19 Disability Plan, 180 F.3d 1065, 1069 (9th Cir. 1999) (stating that de novo review applies to the 20 plan administrator’s factual findings as well as plan interpretation). A bench trial may “consist[ ] 21 of no more than the trial judge reading [the administrative record].” Kearney v. Standard Ins. 22 Co., 175 F.3d 1084, 1095 (9th Cir. 1999). Plaintiff bears the burden of establishing entitlement

23 to benefits during the claim period by a preponderance of the evidence, and the Court must 24 evaluate the persuasiveness of the conflicting evidence to make its determination. Id. at 1094– 1 95. Accordingly, the Court issues these findings of fact and conclusions of law based on a de 2 novo review of the record.1 3 b. Findings of Fact2 4 i. The Parties 5 1. Plaintiffs N.C. and A.C. reside in Middlesex County, Massachusetts. Dkt. # 1; AR 1193. 6 N.C. is A.C.’s mother. Id. 7 2. At all relevant times, N.C. was a participant in the Plan (a fully insured employee welfare 8 benefits plan under ERISA) and A.C. was a beneficiary of the Plan. See, e.g., AR 1802. 9 3. Premera is an insurance company and admits that it is the claims administrator for the 10 Plan. Dkt. # 46 at ¶ 2. 11 ii. The Plan Terms and Premera’s Medical Policy 12 4. The Plan states: “Benefits are available for a service or supply described in this section

13 when it meets all of these requirements: . . . [i]t must be medically necessary.” AR 5890. 14 5. The Plan defines “Medically Necessary” as: 15 Those covered services and supplies that a physician, exercising prudent clinical judgment, would provide to a patient for the purpose of preventing, evaluating, 16 diagnosing or treating an illness, injury, disease or its symptoms, and that are:

17 • In accordance with generally accepted standards of medical practice; 18 • Clinically appropriate, in terms of type, frequency, extent, site and duration, and considered effective for the patient’s illness, injury or 19 disease; and 20 1 To the extent any findings of fact may be deemed conclusions of law, they shall also be 21 considered conclusions. Similarly, if any conclusions as stated may be deemed findings of fact, they shall also be considered findings. See In re Bubble Up Delaware, Inc., 684 F.2d 1259, 1262 (9th Cir. 1982). 22 2 The Court notes that the administrative record is extremely disorganized, is not chronologically ordered, and contains many copies of the same documents. Many documents are incomplete or interrupted by pages of separate documents without explanation. The Court has done its best to cite the 23 record appropriately. When a document appears in the record more than once, the Court cites only one appearance of the document. When the Court references a series of documents in a single citation, it lists 24 them in chronological order instead of page number order. 1 • Not primarily for the convenience of the patient, physician, or other health care provider, and not more costly than an alternative service or sequence 2 of services at least as likely to produce equivalent therapeutic or diagnostic results as to the diagnosis or treatment of that patient’s illness, 3 injury or disease.

4 For these purposes, “generally accepted standards of medical practice” means standards that are based on credible scientific evidence published in peer 5 reviewed medical literature generally recognized by the relevant medical community, physician specialty society recommendations and the views of 6 physicians practicing in relevant clinical areas and any other relevant factors.

7 AR 5949. 8 6. “Premera uses medical policies it licenses from an organization called InterQual to 9 determine medical necessity for mental health residential treatments.” Dkt. # 48 at 7; AR 59. 10 7. The 2019 InterQual guidelines for Child and Adolescent Psychiatry state that continued 11 stay in residential treatment is medically necessary if at least one of these symptoms is present 12 within the last week: 13 – Aggressive or assaultive behavior – Angry outbursts 14 – Depersonalization or derealization – Destruction of Property 15 – Easily frustrated and poor impulse control – Homicidal ideation without intent 16 – Hypervigilance or paranoia – Nonsuicidal self-injury 17 – Persistent rule violations o Psychiatric medication refractory or resistant and symptoms increasing or 18 persisting, >/ One [one or more symptoms must be present]  Anxiety and associated symptom 19  Depressive disorder or major depressive episode and associated symptoms 20  Hypomanic symptom  Obsessive or compulsive disorder 21  Psychosis and associated symptom – Psychomotor agitation or retardation 22 – Runaway from facility or while on home pass – Sexually inappropriate 23 – Suicidal ideation without intent

24 1 AR 1724, 1726.3 2 8. The same InterQual guidelines also state that a patient must exhibit one of these 3 symptoms to meet the criteria for medical necessity: 4 o Interpersonal conflict, >/ One:  Hostile or intimidating in most interactions 5  Persistently argumentative when given direction  Poor or intrusive boundaries causing anger in others and requiring 6 frequent staff intervention  Threatening 7  Unable to establish positive peer or adult relationships – Repeated privilege restriction or loss of privileges 8 – Unable or unwilling to follow instructions or negotiate needs – Unresponsive to staff directions or limits 9 AR 1724, 1725.4 10 9. The InterQual guidelines state that these interventions must have taken place within the 11 last week for a patient to meet the criteria for medical necessity: 12 – Behavioral contract or symptom management plan 13 – Clinical assessment at least 1 time per day – Individual or family psychoeducation 14 – Individual or group or family therapy at least 3 times per week – Psychiatric evaluation at least 1 time per week 15 – School or vocational program

16 AR 1724–25.5

3 Defendant includes a list of symptoms in its motion for summary judgment that appears to be 18 paraphrased, incomplete, and incorrectly cited when compared to the administrative record. See Dkt. # 48 at 7–8 (citing the administrative record at 1722–23, where no relevant criteria appear). The excerpts 19 closest to its quoted language appear on pages 1724 and 1726 of the administrative record and describe the symptoms that must be present either on “Episode Day 2–15” or “Episode Day 16–X, Extended Stay” 20 for a patient to meet the “medical necessity” criteria for continued stay at a residential treatment center. 4 Defendant’s citation here is similarly unhelpful. See Dkt. # 48 at 8 (citing AR 1722–23, where 21 no relevant criteria appear). The excerpts closest to its quoted language describe the symptoms that must be present either on “Episode Day 2–15” or “Episode Day 16–X, Extended Stay” for a patient who is 22 experiencing a serious emotional disturbance to meet the “medical necessity” criteria for continued stay at a residential treatment center. 5 Defendant cites additional required interventions such as “Psychiatric evaluation, initial within 1 23 business day” and “Preliminary discharge plan initiated within 24 hours” that the Court cannot locate in the text of the guidelines. See Dkt. # 48 at 8 (citing the administrative record at 1723–24, where this 24 language does not appear). 1 10. The InterQual guidelines are not included with or attached to the Plan documents. See 2 generally AR. 3 iii. A.C.’s Developmental and Medical History

4 11. A.C. was born in Guatemala in 2004 and lived there until N.C. adopted him when he was 5 a little over a year old. AR 4937. 6 12. A.C.’s older sister K.C. was adopted as well, and she is from Cambodia. AR 4941. K.C. 7 had significant behavioral issues throughout her childhood. Id. She was later diagnosed with 8 generalized anxiety disorder, major depressive disorder, post-traumatic stress disorder, and 9 autism spectrum disorder. Id. As a child A.C. was often exposed to his sister’s violent tantrums, 10 which included biting, kicking, spitting, and hitting. AR 4938. On at least one occasion K.C. 11 was physically aggressive toward A.C. Id. 12 13. Unbeknownst to N.C., an older family friend sexually abused A.C. for about two years

13 when he was a child. Id. A.C. did not disclose the abuse until years later. Id. 14 14. A.C.’s behavior and functioning began to seriously decline in about 2016. AR 4939. He 15 would often lash out physically and orally toward his sister and mother. Id. He also stopped 16 attending school regularly, showed signs of depression, struggled with self-care, and talked about 17 killing himself. AR 4939–40. 18 15. A.C.’s symptoms continued to escalate until the police became involved. In one instance 19 in 2017, he called the police himself and told them that he did not feel safe; he was then 20 transported to an emergency room. AR 986; 988. On another occasion in 2019 he threatened to 21 punch his mother in the face. AR 983, 4940. Id. She called the police and A.C. was 22 hospitalized. Id.; AR 1005–1006.

23 16. A.C. saw several therapists and psychiatrists throughout his childhood and adolescence, 24 including most recently Amber Haines, LICSW (who he saw for outpatient therapy), and Marcus 1 Favero, M.D. (who he saw for medication management). Dkt. # 4938–39. Although A.C. 2 connected with some of them at first, none managed to make successful interventions. See, e.g., 3 AR 771.

4 17. In October 2018, Brian Willoughby, Ph.D., diagnosed A.C. with attention deficit 5 hyperactivity disorder (ADHD), major depressive disorder (MDD), and unspecified anxiety 6 disorder (with symptoms of generalized anxiety, PTSD, and social anxiety). AR 992. 7 18. A.C. was prescribed several medications to manage his mental health diagnoses over the 8 years, including Seroquel, Concerta, Ritalin, Prozac, Klonopin, and Zoloft. AR 994, 1006, 4943. 9 These medications seemed to improve some symptoms but not others. AR 4943. 10 19. In April 2019, at the suggestion of A.C.’s psychiatrist at the time, his mother placed him 11 on a waitlist for an inpatient program. When she explained this to A.C., he become angry and 12 violent, and threatened to punch her. AR 983, 4940. N.C. called the police and A.C. was taken

13 to the emergency department of Emerson Hospital. Id.; AR 1004. 14 20. A.C. was transferred to a community-based acute treatment (CBAT) program at 15 Franciscan Children’s Hospital, where he stayed from April 4 to 18, 2019. AR 1007. His 16 medical records from the CBAT program state that he was admitted due to increased depression, 17 anxiety, aggression at home, and endorsing suicidal ideation. AR 1008. His diagnoses are listed 18 as “Post-Traumatic Stress Disorder, developmental trauma and acute trauma; Attention- 19 Deficit/Hyperactivity Disorder, Unspecified, per history; Generalized Anxiety Disorder; 20 Unspecified Depressive Disorder; Reactive Attachment Disorder.” AR 1010. 21 21. Following this stay, A.C. was admitted to a therapeutic wilderness program called New 22 Vision. AR 1020. His treatment records state, “[A.C.] was originally referred [to New Vision]

23 by CALO-Change Academy of Lake of Ozarks to complete time in wilderness for initial 24 stabilization before his enrollment at CALO.” AR 1022. His treatment recommendations from 1 New Vision state, “a return to his home setting or another setting without a robust therapeutic 2 program would cause significant regression … The next placement for [A.C] needs to be 3 individualized and structured to provide him the support academically and within his peer

4 group.” AR 1026. 5 iv. CALO 6 22. CALO is a residential treatment facility located in Lake Ozark, Missouri. AR 789, 882. 7 At all relevant times, it was licensed by the State of Missouri Department of Social Services 8 Children’s Division as a Residential Treatment Agency for Children and Youth. AR 788–89. It 9 was also a Joint Commission accredited facility. AR 5073. 10 23. A.C. applied for admission to CALO on April 11, 2019, before he enrolled in New 11 Vision. AR 3513. 12 24. In preparation for his admission, CALO conducted a psychosocial assessment of A.C. on

13 April 23, 2019. AR 4937. The assessment included sections entitled, “General Information,” 14 “Psychiatric and/or Psychological Evaluation,” “Treatment History,” “Psychosocial 15 Assessment,” “Unsafe Behaviors Overview,” “Family Overview,” “Educational/Academic 16 History,” “Strengths/Weaknesses/Social Interaction History,” and “Medication Review.” Id. 17 25. A.C. was admitted to CALO on June 18, 2019. AR 4926. 18 26. Upon admission, CALO created an “Initial Treatment Plan” for A.C. Id. The Initial 19 Treatment Plan outlines the reasons for A.C.’s admission, including a statement that “[A.C.]’s 20 psychiatrist feels a residential placement is appropriate at this time.” Id. It also includes sections 21 on “Initial Student Care Needs,” the results of a “Mental Status Exam,” “Perceptions of 22 Strengths and Weaknesses,” “Perception of Placement,” “Parent/Family Educational Needs,”

23 “Initial Treatment Objectives,” and “Initial Treatment Care Interventions.” Id. at 4927. It was 24 1 signed by four treatment team members in September 2019, but the document appears to have 2 been created on June 18, 2019. AR 4926–27. 3 27. During his stay at CALO, A.C. participated in individual therapy, group therapy, family

4 therapy, milieu therapy, alpha stim therapy, and canine therapy. See generally AR 1243–4956. 5 He met with clinical staff on average daily and with a psychiatrist on average weekly. Id. 6 28. A.C. was discharged from CALO on August 23, 2020. AR 1965. 7 v. Plaintiff’s Claim for A.C.’s Treatment and Premera’s Denial 8 29. On August 9, 2019, N.C. submitted a claim for reimbursement to Premera for A.C.’s 9 residential treatment at CALO for the period beginning on June 18, 2019. AR 5991. 10 30. On September 3, 2019, Premera agreed to pay for nine days of A.C.’s stay at CALO but 11 denied the claim for reimbursement after June 26, 2019. AR 44, 5992–5995. 12 31. Premera’s denial letter states:

13 Our decision: The Treatment guidelines we use state that continued residential treatment for a mental health condition is medically necessary when, because of a 14 serious emotional disturbance, the following situations are true for you:

15 • Within the last week, one of these is true for you: o You have been having angry outbursts 16 o You have hurt or tried to hurt others or have thoughts about killing others 17 o You have hurt yourself or have thoughts about killing yourself o You have destroyed property, or you are having other very serious 18 psychiatric symptoms • OR, your symptoms have improved, discharge is planned within the next 19 week, and either some treatment goals have not been met that will be met within the next week, or more work is needed with your family before you 20 go home that will be done within the next week. • AND, within the last week, one of these is also true for you: 21 o You have very bad relationships with other people o You are interacting with others in very angry or threatening ways 22 o You can’t or won’t follow instructions or ask for help to get your needs met. 23 • OR, your functioning has improved, discharge is planned within the next week, and passes are planned within the next week to help you get ready 24 to go to another level of care. 1 Continued residential treatment for mental health condition is denied as not 2 medically necessary after 6/26/19. Information from your provider does not show any of the situation above on and after 6/26/19. 3 The treatment guidelines we use also state that, in addition to other 4 requirements, continued residential treatment for a mental health condition is medically necessary only when a psychiatric evaluation was done within one 5 business day of admission, and is then being done at least one time per week (every 7 days), by a psychiatrist, psychiatric nurse practitioner, or psychiatric 6 physician assistant, and when an individualized goal-directed treatment is completed within 1 weeks after admission. The information from your 7 provider does not show any psychiatric evaluations by a psychiatrist, psychiatric nurse practitioner, or psychiatric physician assistant, after 6/26/19, 8 and shows that the first treatment plan was not completed until more than 6 weeks after admission. 9 What is the decision based on? We reviewed your contract, Change 10 Healthcare InterQual Criteria, BH: Child and Adolescent Psychiatry InterQual 2019, and the medical records your provider, Change Academy at Lake of the 11 Ozarks, sent to us. We have determined this service is considered not medically necessary. 12 AR 43. 13 vi. Plaintiff’s Level I Appeal 14 32. Plaintiff at first attempted to submit an appeal of Premera’s denial of coverage through 15 Premera’s internal appeal process (“Level I Appeal”) on February 24, 2020. AR 3. But Premera 16 did not receive the mailing and requested that N.C. resubmit her appeal. Id. N.C. resubmitted 17 her appeal on July 6, 2020, and it was received by Premera. AR 2. Premera considered the 18 appeal to be timely given N.C.’s genuine effort to timely appeal. AR 3. 19 33. Plaintiff made four arguments in her Level I Appeal. First, she argued that Premera 20 relied on faulty rationale in denying coverage because its “intensity of services” requirements— 21 such as the requirement that A.C. meet with a psychiatrist, psychiatric nurse practitioner, or 22 psychiatric physician assistant within one business day of admission and then at least one time 23 per week thereafter—were false, misleading, and arbitrary. AR 16. She emphasized that A.C. 24 1 met with a psychiatrist “as often as is clinically indicated, at times as frequently as every four to 2 six days. In fact, over the course of his stay, [A.C.] has met with Dr. Nair an average of once per 3 week.” AR 16–17. Second, she argued that Premera’s intensity of service denial violated the

4 terms and conditions of the Plan because it based its coverage decision on its own internal 5 policies instead of the Plan language. Id. at 17. She pointed out that, according to the Plan, 6 covered services may be rendered by “[a]ny other provider listed under the definition of 7 ‘provider’ . . . who is licensed or certified by the state in which the care is provided, and who is 8 providing care within the scope of his or her license,” Id. (citing AR 780), and that the Plan 9 defines “providers” as “health care practitioners and facilities licensed or certified consistent 10 with the laws and regulations of the state in which they operate, and provide health care services 11 consistent with applicable state requirements.” AR 17. Third, she argued that the InterQual 12 guidelines violate generally accepted standards because they (1) place inappropriate emphasis on

13 acuity and crisis stabilization over effective treatment, AR 19–20, and (2) fail to consider 14 complex diagnoses and the need for specialized treatment for individuals like A.C. Id. at 20. 15 Fourth, she argued that Premera violates federal mental health parity regulations, namely the 16 MHPAEA, because it imposes more stringent coverage requirements in the context of mental 17 health than in the context of medical and surgical care. AR 22. 18 34. N.C. included several exhibits with her Level I Appeal in support of her arguments that 19 A.C.’s treatment at CALO was medically necessary, including the Plan documents, A.C.’s 20 medical records, letters of medical necessity from A.C.’s treatment team, and many other 21 documents. See generally AR 1–1613. 22 35. Premera denied Plaintiff’s Level I Appeal on July 29, 2020. AR 1801. The denial letter

23 states: 24 1 As of June 27, 2019, [A.C] was not wanting to harm himself or others. He was able to care for his daily needs and was not hearing or seeing things that were not 2 there. [A.C] was participating in treatment and did not have any severe depressive symptoms that require around the clock nursing supervision. [A.C] 3 could have been safely managed in a less restricted setting. Therefore, the claims for services after this date are denied. 4 AR. 1801. Premera also attached an “Independent Medical Review” completed by a child and 5 adolescent psychiatrist. That report states: 6 As of 6/27/19 the patient was not reported to be suicidal, homicidal, or gravely 7 impaired for self-care. There was no report of self-harm. He was not actively aggressive. The patient was able to care for his daily needs. He did not report 8 any auditory or visual hallucinations. The patient was compliant with treatment and was attending family and individual therapy sessions. The patient continued 9 to make progress to the point that could have allowed him to be treated in a lower level of care. He was not psychotic, delusional, or manic. He did not have any 10 severe depressive symptoms that required 24-hour nursing supervision. From the clinical evidence, the patient could have been treated in a lower level of care such 11 as partial hospitalization.

12 AR 1949. The report also included CALO treatment notes from six treatment dates 13 ranging from 6/27/19 to 10/30/19, seemingly as support for the ultimate conclusion that 14 A.C.’s stay at CALO was not medically necessary after June 27, 2019. Id. 15 vii. Plaintiff’s Level II Appeal 16 36. On August 27, 2020, Plaintiff submitted a Level II Appeal. AR 1965. In her appeal, she 17 first asserted that she had not been afforded a full and fair review because Premera had not 18 addressed several of the arguments she raised in her Level I Appeal. AR 1966–68. Second, 19 Plaintiff reiterated her arguments about Premera’s failure to comply with the Parity Act, 20 specifically referencing the InterQual criteria for Skilled Nursing Facilities. AR 1968–69.6 21 Lastly, Plaintiff disputed Premera’s determination that A.C.’s stay at CALO was not medically 22 necessary, highlighting the letters of medical necessity that she had submitted with her Level I 23

24 6 Plaintiff also attached the InterQual criteria for Skilled Nursing Facilities. 1 Appeal. AR 1970–81. She also requested that her Level II Appeal be reviewed by someone 2 who is board certified in child and adolescent psychiatry and who has experience treating 3 adolescents diagnosed with major depressive disorder (MDD), attention deficit/hyperactivity

4 disorder (ADHD), reactive attachment disorder (RAD), and post-traumatic stress disorder. AR 5 1967. 6 37. Premera denied Plaintiff’s Level II Appeal on September 21, 2020. AR 4249. The denial 7 letter states: 8 Your request was denied based on a review of the clinical information submitted. [A.C.] does not meet medical necessity criteria for residential level of care from 9 6/27/2019 forward. [A.C] has no dangerous psychiatric behaviors, comorbid medical problems, withdrawal symptoms or other gross dysfunction that would 10 necessitate this level of care. It appears that he could be cared for at a lower level of care during this time. Kupfer and colleagues as well as Davidson highlight 11 treatment options for major depression and it appears that these could be utilized at a lower level of care in this case from the above-mentioned dates forward. 12 Id. 13 38. When asked to give a justification for the denial in layperson’s terms, “addressing each 14 argument that the claimant raised,” the reviewers wrote: 15 You do not meet criteria for residential level of care from 6/27/2019 forward. 16 You do not have any active plans to end your life or others. You do not have any medical problems. You are not withdrawing from drugs. As such, the 17 request is not approved.

18 AR 4246. 19 viii. Procedural Background 20 39. Plaintiff filed this action on July 29, 2021. Dkt. # 2. 21 40. The parties cross-moved for summary judgment on July 7, 2022. Dkts. ## 48, 53. 22 41. The Court held oral argument on October 24, 2022, and took the matter under 23 advisement. Dkt. # 66. 24 1 42. On February 27, 2023, the Court ordered the parties to provide supplemental briefing 2 about which medical necessity guidelines it should look to and why. Dkt. # 67. The parties 3 responded with supplemental briefs on March 6, 2023. Dkts. ## 69, 70.

4 c. Conclusions of Law 5 i. Jurisdiction 6 1. The Court has jurisdiction over this case under 29 U.S.C. § 1132(e)(1) and 28 U.S.C. § 7 1331. 8 ii. Standards under ERISA 9 2. As discussed above, the Court reviews the record de novo. See Rorabaugh v. Cont’l Cas. 10 Co., 321 F. App’x. 708, 709 (9th Cir. 2009). “When conducting a de novo review of the record, 11 the court does not give deference to the claim administrator’s decision, but rather determines in 12 the first instance if the claimant has adequately established” her claim “under the terms of the

13 plan.” Muniz v. Amec Constr. Mgmt., Inc., 623 F.3d 1290, 1295–96 (9th Cir. 2010). 14 3. When a district court reviews a plan administrator’s decision under the de novo standard 15 of review, the burden of proof is on the claimant to show entitlement to benefits. Id. at 1294. 16 4. “Under de novo review, the rules ordinarily associated with the interpretation of 17 insurance policies apply.” Leight v. Union Sec. Ins. Co., 189 F. Supp. 3d 1039, 1047 (D. Or. 18 2016) (citing Lang v. Long-Term Disability Plan of Sponsor Applied Remote Tech., Inc., 125 19 F.3d 794, 799 (9th Cir. 1997)). Accordingly, the Court construes any ambiguities in the Plan 20 against Premera and is required “to adopt [a] reasonable interpretation advanced by [the 21 insured.]” See Lang, 125 F.3d at 799. 22 iii. InterQual Guidelines

23 5. Premera argues that its use of the InterQual guidelines is “in accordance with the plan 24 booklet.” Dkt. # 48 at 7. Specifically, it points to the language: “Our policies are based on 1 accepted clinical practice guidelines and industry standards accepted by organizations like the 2 American Medical Association (AMA), other professional societies and the Center for Medicare 3 and Medicaid Services (CMS).” AR 5890.

4 6. The Court agrees that Premera’s use of the InterQual guidelines was “in accordance with 5 the plan booklet,” in that the InterQual guidelines are not inconsistent with generally accepted 6 standards of practice. See, e.g., Stephanie C. v. Blue Cross Blue Shield of Mass. HMO Blue, Inc., 7 852 F.3d 105, 114 (1st Cir. 2017) (holding, under an abuse of discretion standard of review, that 8 “BCBS reviewers reasonably consult the InterQual Criteria, which are nationally recognized, 9 third-party guidelines”). 10 7. But on de novo review, the question is not whether Premera’s use of the InterQual 11 guidelines was reasonable. The Court needs to rely on the InterQual guidelines only if they are 12 incorporated into the Plan as a governing legal document. See, e.g., Heasley v. Belden & Blake

13 Corp., 2 F.3d 1249, 1261 (3d Cir. 1993) (“[C]ourts have refused to rely exclusively on particular 14 third-party classifications where the plan has not explicitly referenced them. . . .”); Pirozzi v. 15 Blue Cross-Blue Shield of Va., 741 F. Supp. 586, 591 (E.D. Va. 1990) (refusing to uphold 16 coverage denial based on health plan’s internal “technology evaluation criteria” because “the 17 criteria are not part of the Plan and the Plan nowhere states that the Blue Cross criteria are 18 determinative of a treatment’s experimental status”). Premera does not argue that the Plan 19 incorporates the InterQual guidelines, instead emphasizing that its use of the guidelines was “in 20 accordance” with the Plan language (Dkt. # 48 at 7) and citing cases in which courts have found 21 that the “InterQual criteria are nationally recognized, third-party guidelines designed to help 22 healthcare organizations assess the safest and most clinically appropriate care level for more than

23 95% of reasons for admission.” Dkt. # 48 at 13 (citing Julie L. v. Excellus Health Plan, Inc., 447 24 F. Supp. 3d 38, 43, n.3 (W.D.N.Y. 2020) (internal citations omitted)); see also Dkt. # 59 at 5-6. 1 Lastly, Premera conceded in oral argument that the InterQual guidelines are not incorporated by 2 reference into the Plan. Dkt. # 68 at 23–25. 3 8. The Court concludes that the InterQual guidelines are not incorporated by reference into

4 the Plan, and therefore represent only one source of potentially relevant authority on whether 5 A.C.’s treatment was medically necessary. The Court is not bound to rely exclusively on these 6 guidelines and may consult alternate sources of evidence and authority. See Heasley, 2 F.3d at 7 1261. 8 9. The Court also notes that although Premera’s use of the InterQual guidelines may have 9 been “in accordance with the plan booklet,” its decision to exclude coverage based on Plaintiff’s 10 failure to meet these extraneous and rigid standards—which are not explicitly referenced in the 11 Plan language—is troubling. The Ninth Circuit has adopted the “reasonable expectations” 12 doctrine when interpreting ERISA contracts, which provides that “[i]n general, courts will

13 protect the reasonable expectations of applicants, insureds, and intended beneficiaries regarding 14 the coverage afforded by insurance carriers even though a careful examination of the policy 15 provisions indicates that such expectations are contrary to the expressed intention of the insurer.” 16 Saltarelli v. Bob Baker Grp. Med. Tr., 35 F.3d 382, 386 (9th Cir. 1994) (citing Robert E. Keeton 17 & Alan I. Widiss, Insurance Law: A Guide to Fundamental Principles, Legal Doctrines, and 18 Commercial Practices § 6.3 (West 1988)); see also Kunin v. Benefit Tr. Life Ins. Co., 910 F.2d 19 534, 540 (9th Cir. 1990) (In the context of interpreting ambiguous provisions of an ERISA 20 contract, “the insurer should be expected to set forth any limitations on its liability clearly 21 enough for a common layperson to understand.”). Because the Court reviews this case de novo, 22 it must interpret the governing plan documents without deferring to any party’s interpretation,

23 see Bruch, 489 U.S. 101, 112–13 (1989), and the reasonable expectations doctrine weighs 24 against using exclusively the InterQual guidelines to define “medical necessity.” 1 10. Lastly, the Ninth Circuit has held that the doctrine of contra proferentem, which 2 mandates that ambiguous contract terms be construed against the insurer, applies to ERISA 3 cases. Kunin, 910 F.2d at 540. Thus, if there are any ambiguous terms in the Plan language,

4 the Court will err on the side of Plaintiff’s proposed construction (and against strict application 5 of the InterQual guidelines). See id. (“an insurer's practice of forcing the insured to guess and 6 hope regarding the scope of coverage requires that any doubts be resolved in favor of the party 7 who has been placed in such a predicament”). 8 iv. Medical Necessity 9 11. In deciding whether the Plan covers A.C.’s treatment at CALO, the Court begins with the 10 Plan’s language. See Bruch, 489 U.S. at 112–13 (In an ERISA case in which the standard of 11 review is de novo, courts should review the insured’s claim “as it would have any other contract 12 claim—by looking to the terms of the plan and other manifestations of the parties’ intent.”); cf.

13 Waller v. Truck Ins. Exch., Inc., 11 Cal. 4th 1, 18, 44 Cal. Rptr. 2d 370, 900 P.2d 619 14 (1995) (“The rules governing policy interpretation require us to look first to the language of 15 the contract in order to ascertain its plain meaning or the meaning a layperson would ordinarily 16 attach to it.”). 17 12. The Court concludes that the only ambiguity in the Plan’s definition of medical necessity 18 is the phrase, “generally accepted standards of medical practice.” Although the plan does further 19 define the term as “standards that are based on credible scientific evidence published in peer 20 reviewed medical literature generally recognized by the relevant medical community, physician 21 specialty society recommendations and the views of physicians practicing in relevant clinical 22 areas and any other relevant factors,” AR 5949, even this more specific definition is susceptible

23 to multiple interpretations. Indeed, neither party argues that the InterQual guidelines are the only 24 standards that meets this definition, and Plaintiff advocates for the application of the AACAP 1 standards instead. The Court therefore concludes that it must look to sources of authority outside 2 the Plan language to properly define this term. Except for this phrase, the Plan language defines 3 “medical necessity” with sufficient clarity that the Court need not consult extraneous guidelines.

4 See generally Health Cost Controls v. Isbell, 139 F.3d 1070, 1072 (6th Cir. 1997) (“A primary 5 purpose of ERISA is to ensure the integrity and primacy of the written plans” (citing Duggan v. 6 Hobbs, 99 F.3d 307, 309–10 (9th Cir. 1996)). The Court consults the American Academy of 7 Child and Adolescent Psychiatry’s (AACAP) “Principles of Care for Treatment of Children and 8 Adolescents with Mental Illnesses in Residential Treatment Centers” (Principles of Care) and 9 “Practice Parameter for the Assessment and Treatment of Children and Adolescents with 10 Reactive Attachment Disorder and Disinhibited Social Engagement Disorder” (RAD Practice 11 Parameter), the InterQual guidelines,7 and the remaining record evidence in clarifying the 12 meaning of these phrases in the contract. 13 13. Plaintiff urged application of the AACAP standards in her administrative appeal and her 14 motion for summary judgment. AR 20; Dkt. # 53 at 19–21. Defendant also addressed these 15 standards in its opposition brief, arguing that the Court should not use the AACAP Principles of 16 Care because “[e]xamination of this entire document reveals that its purpose is not to establish a 17 policy or standards for determining when residential treatment is medically necessary. Rather, as 18 the title itself states, the document’s purpose is to establish a standard of care for treatment at a 19 residential treatment centers.” Dkt. # 59 at 6–7. 20 7 The Court’s analysis is informed by the InterQual guidelines, but it rejects Defendant’s 21 argument that it must adhere to their rigid requirements for frequency of symptoms and interventions in determining medical necessity. Both parties agree that the InterQual guidelines are not meant to be the 22 exclusive source of authority in determining medical necessity; they state themselves that they “are intended solely for use as screening guidelines with respect to the medical appropriateness of health care services and not for final clinical or payment determinations concerning the type or level of medical care 23 provided, or proposed to be provided, to a patient.” AR 21 (citing InterQual Procedures Criteria: Review Process, Change Healthcare LLC, 2019, p. 1); Dkt. # 61 at 9; Dkt. # 64 at 4. The Court therefore consults 24 them but does not rely exclusively on them in coming to its conclusions. 1 14. Defendant’s argument overlooks a key distinction. As discussed above, the Court is not 2 using the AACAP standards to define “medical necessity” as a whole; rather, the Court consults 3 the AACAP standards only to help define “generally accepted standards of medical practice.”

4 The rest of the Plan’s definition of “medical necessity” is sufficiently clear that the Court need 5 not consult external standards to determine whether residential treatment was warranted for this 6 Plaintiff. Defendant’s own argument concedes that the AACAP standards are intended to 7 “establish a standard of care” (emphasis added) for residential treatment centers, and it does not 8 otherwise argue that these documents are not “based on credible scientific evidence published in 9 peer reviewed medical literature generally recognized by the relevant medical community, 10 physician specialty society recommendations and the views of physicians practicing in relevant 11 clinical areas and any other relevant factors.” See AR 5949; Dkts. ## 59, 64, 69. 12 15. The Court’s reliance on the plain language of the Plan, except when ambiguities require

13 reliance on outside sources, conforms with general principles of contract construction and the 14 rule in Bruch. See also Saltarelli, 35 F.3d at 386 (citing Menhorn v. Firestone Tire & Rubber 15 Co., 738 F.2d 1496, 1500 (9th Cir.1984) (“The courts are directed to formulate a nationally 16 uniform federal common law to supplement the explicit provisions and general policies set out in 17 ERISA, referring to and guided by principles of state law when appropriate, but governed by the 18 federal policies at issue.”). 19 v. Plaintiff is entitled to benefits 20 16. The preponderance of the evidence establishes that A.C.’s 14-month stay at CALO was 21 medically necessary. First, all of the mental health professionals who actually examined or 22 treated A.C. found that his symptoms could not be safely managed at home, and that he required

23 the structure of a residential treatment center to engage in effective therapeutic interventions. 24 1 Marcus Favero, M.D., the psychiatrist who treated A.C. for over two years until April 2019 (just 2 before his last hospitalization, wrote: 3 …[A.C.] was challenging to treat due to his hostility, distrust and inability to tolerate discussion about his functional difficulties and psychiatric symptoms. 4 Trials of several different antidepressants, mood stabilizers and stimulants (for ADHD) appeared to be only marginally helpful. In the last several months in 5 which he was my patient, he dropped out of outpatient psychotherapy and started refusing to see me as well… 6 …[A.C.]’s mother kept in close contact with me during the early spring of 2019 7 as his condition continued to deteriorate. I recommended she work towards hospitalization for shorter-term stabilization, and I consulted to Emily Buck, 8 PMHNP-BC, the psychiatric nurse practitioner in charge of his care during his hospitalization at Franciscan Children’s Hospital in April 2019. My assessment at 9 that time was that neither outpatient nor short term acute treatment were sufficient to meet his needs. Due to his chronic and deteriorating symptom 10 picture, increasing dysfunction at school and home, hostility and/or complete withdrawal in relationships, and concerns related to his and others’ safety, I 11 concluded that he met medical necessity criteria for long term residential treatment and recommended this course be pursued… 12 AR 771 (emphasis added). Similarly, Emily Buck, the Nurse Practitioner who treated A.C. at the 13 Franciscan-McLean Community Based Acute Treatment (CBAT) program from April 4 to 18, 14 2019, wrote, “in developing a safe discharge plan for [A.C] . . . with his mother, we discussed 15 the potential benefits of a therapeutic residential program.” AR 769. And upon A.C.’s discharge 16 from New Vision, Field Therapist Claire Vos, MS, LPC, wrote that “a return to his home setting 17 or another setting without a robust therapeutic program would cause significant regression and 18 the return of [A.C]’s negative coping strategies.” AR 1026. A.C.’s treatment team at CALO 19 also found that he required continued residential treatment to properly manage and treat his 20 symptoms. His treating psychiatrist Dr. Nair tracked his symptoms and medications through 21 weekly visits, and repeatedly recommended that he “continue residential treatment.” See, e.g., 22 AR 472, 3000, 446, 406, 384. Similarly, his treatment team (including his treating psychiatrist, 23 therapist, and other CALO staff) created monthly treatment plans where they documented his 24 1 diagnoses and set dates for the anticipated completion of therapeutic goals before discharge. See 2 AR 4926, 424, 358, 238, 119, 5743, 5665, 1289, 2128, 4180, 4026, 3887, 3757, 3679. And 3 A.C.’s treating therapist, Chris Austin, M.A., L.P.C., N.C.C., continued to document “symptoms

4 and behaviors demonstrating the continued need for RTC [residential treatment center] level of 5 care,” see, e.g., AR 3858, 3848, 3805, 3747, 3722, 3708, 3689, 3636,8 through A.C.’s last 6 months at CALO. This evidence shows that A.C.’s stay at CALO was within the category of 7 services that a physician, “exercising prudent clinical judgment, would provide to a patient for 8 the purpose of preventing, evaluating, diagnosing, or treating an illness, injury, disease or its 9 symptoms.” AR 5949. 10 17. The Court notes that Premera also provided an Independent Medical Review, completed 11 by a child and adolescent psychiatrist, with its Level I denial letter. AR 1949. But the analysis 12 references only six treatment dates between June 27, 2019, and October 30, 2019, appears 13 cursory, and focuses on several acute symptoms (such as suicidality and homicidality) that are 14 emphasized in the InterQual criteria. Id.9 For the reasons articulated above, the Court declines 15 to rigidly apply the InterQual criteria in determining medical necessity. It also gives greater 16 weight to the opinions of the providers who actually treated and examined A.C. than to 17 physicians who simply reviewed the file. See Holmgren v. Sun Life & Health Ins. Co., 354 F. 18 8 These symptoms and behaviors included (1) “functional impairments” such as “impaired social 19 relationships,” “inability to live without support,” “inability to maintain health relationships with peers or adults,” “lacks independent living skills,” and “inability to manage interpersonal conflict,” (2) 20 “limitations in home support” such as “lower levels of care failed to alleviate the symptoms” and “was a witness or target of physical, sexual, or emotional abuse,” (3) “mood symptoms” such as anxiety, 21 apprehension, feelings of worthlessness, hyper vigilance, difficulty sleeping, excessive worry of abandonment, and irritability, (4) “personality symptoms” such as “lacks close friends” and “provocative 22 behaviors,” and (5) “physical symptoms” such as excessive energy/fidgeting, preoccupation with body image and unstable relationships, and hyper-vigilance/paranoia. Id. 9 Premera’s Level II denial letter similarly states that A.C.’s case was reviewed by a “Physician 23 Reviewer who is board-certified in Psychiatry, and who has experience in reviewing health plan appeals,” and focuses on symptoms that are emphasized in the InterQual guidelines such as “dangerous psychiatric 24 behaviors.” AR 4249. 1 Supp. 3d 1018, 1030 (N.D. Cal. 2018) (citing Salomaa v. Honda Long Term Disability Plan, 642 2 F.3d 666, 676 (9th Cir. 2011)); cf. Smith v. Hartford Life & Acc., 2013 WL 394185, at *23 (N.D. 3 Cal. Jan. 30, 2013) (Deference to treating providers is particularly warranted in mental health

4 cases because, “‘[u]nlike cardiologists or orthopedists, who can formulate medical opinions 5 based on objective findings derived from clinical tests, the psychiatrist typically treats [their] 6 patient’s subjective symptoms.’”) The Ninth Circuit has cautioned that “complete disregard for a 7 contrary conclusion without so much as an explanation raises questions about whether an 8 adverse benefits determination was the product of a principled and deliberative reasoning 9 process.” Salomaa, 642 F.3d at 679 n.35 (internal quotation omitted); see also Montour v. 10 Hartford Life & Acc. Ins. Co., 588 F.3d 623, 635 (9th Cir. 2009) (complete disregard for Social 11 Security Administration opinion, without explanation, suggested failure to engage in principled 12 reasoning and failure to consider relevant evidence in disability determination).

13 18. Premera seems to agree with A.C.’s providers that his admission to CALO was medically 14 necessary, because it covered the first nine days of his stay. AR 44, 5992–5995. But it refused 15 to cover his stay after June 26, 2019, seeming to imply—based on its own logic—that there was 16 some change to the acuity of his symptoms after that date. But a thorough review of A.C.’s 17 medical and therapeutic records during his stay at CALO reveal that there was no meaningful 18 change in his symptoms after June 26, 2019. He continued to display verbal aggression10 and 19 20 10 AR 619, 615, 3134, 528, 507, 419, 4669, 390, 357, 170, 2691, 1528, 1263, 1239, 1258, 1257, 21 1256, 2224, 1245, 2215, 2210, 2209, 2208, 2198, 2195, 2188, 2186, 2185, 2176, 2172, 2166, 2100, 4216, 4214, 4213, 4212, 4211, 4206, 4188, 4173, 4170, 4169, 4165, 4154, 4155, 4145, 4142, 4140, 4139, 4128, 22 4125, 4123, 4121, 4094, 4093, 4092, 4081, 4075, 4069, 4068, 4065, 4063, 4037, 4036, 4008, 4004, 4003, 3992, 3958, 3953, 3952, 3941, 3939, 3933, 3922, 3921, 3919, 3912, 3903, 3901, 3899, 3898, 3894, 3877, 3872, 3871, 3856, 3850, 3852, 3849, 3844, 3809, 3810, 3808, 3807, 3806, 3795, 3793, 3791, 3787, 3783, 23 3782, 3780, 3752, 3750, 3749, 3748, 3744, 3737, 3792, 3690, 3687, 3683, 3642, 3641, 3640, 3639, 3637, 3633, 3626, 3625, 3623, 3622, 3621, 3576, 3575, 3573, 3571; cf. AR 1724 (InterQual guidelines: 24 “aggressive or assaultive behavior”). 1 physical aggression11 toward staff, issues with relational engagement such as self-isolation12 and 2 refusal to follow basic instructions,13 and hypervigilance or high threat sensitivity14 throughout 3 his stay (and including during his final months at CALO). The evidence thus does not suggest 4 that A.C.’s symptoms were resolved by June 26, 2019, but rather—as his treating providers 5 concluded—that he continued to require a structured therapeutic environment through August 6 2020.15 See, e.g., Daniel B. v. United Healthcare, No. 2:20–cv–00606–DBB–CMR, 2022 WL 7 4484622, at *16 (D. Utah Sept. 27, 2022) (finding that the insurer’s “choice of January 4, 2018, 8 as the cut-off date for coverage appears arbitrary . . . [because] [t]here was nothing significant 9 about January 4 other than it being the 30-day mark to D.B.’s start of residential care. The only 10 recorded event on January 4 was a shift log.”). 11 19.Plaintiff has also established, by a preponderance of the evidence, that the care A.C. 12 received at CALO was “in accordance with the generally accepted standards of medical practice” 13 11 AR 1330, 1329, 1328, 1327, 1314, 1309, 1307, 2100, 3877, 3782; cf. AR 1724 (InterQual 14 guidelines: “aggressive or assaultive behavior”). 12 AR 394, 393, 2892, 2769, 121, 1608, 1607, 1593, 1590, 1589, 1580, 1570, 1566, 1565, 1545, 15 1543, 1542, 1541, 1540, 1518, 1516, 1515, 5746, 1480, 2473, 5721, 2468, 1458, 1455, 1439, 1432, 1429, 1428, 1412, 1411, 1398, 1396, 5667, 1348, 1347, 1292, 1278, 2242, 2096, 2085, 2083, 4212, 4211, 4206, 16 4188, 4169, 4165, 4154, 4145, 4142, 4140, 4139, 4128, 4125, 4066, 4063, 4034, 4033, 4018, 4013, 3958, 3953, 3952, 3941, 3939, 3933, 3855, 3735, 3733, 3731. 13 AR 1372, 1359, 1351, 3877; cf. AR 1724–25 (InterQual guidelines: “unable or unwilling to 17 follow instructions . . . unresponsive to staff directions or limits”) 14 AR 4677, 4679, 2892, 264, 2771, 124, 5670, 1291, 2133, 2096, 4209, 4185, 3568, 3918, 3893, 18 3874, 3782, 3689, 3858, 3848, 3805, 3747, 3708, 3689. 15 Even if A.C.’s symptoms had shown a marked improvement while at CALO, his treatment 19 could still have been medically necessary. In Wiwel v. IBM Med. & Dental Ben. Plans for Regular Full- Time & Part-Time Emps., No. 5:15-cv-504-FL, 2018 WL 526988 (E.D.N.C. Jan. 18, 2018), the court 20 concluded the insurer’s denial of benefits was erroneous (even under the more stringent abuse of discretion standard) because the insurer’s reviewers had failed to evaluate whether improvements in the 21 patient’s depression would last if she was removed from residential treatment. See also Charles W. v. Regence BlueCross BlueShield of Oregon, No. 2:17-CV-00824-TC, 2019 WL 4736932, at *9 (D. Utah 22 Sept. 27, 2019) (“Because Regence’s reviewers did not appropriately consider the extent to which Zoe's stability was attributable to New Haven or explain why it would not get worse if she left New Haven, Plaintiffs have demonstrated by a preponderance of the evidence that Zoe’s treatment at New Haven was 23 medically necessary”). In finding that A.C.’s treatment at CALO after June 26, 2019 was not medically necessary, Premera offered no reasons to conclude that removing A.C. from the care of CALO would not 24 have resulted in a regression of his symptoms. 1 and clinically appropriate, given his diagnoses. See AR 5949. At the time of A.C.’s treatment at 2 CALO, he was diagnosed with major depressive disorder (MDD), attention-deficit hyperactivity 3 disorder (ADHD), reactive attachment disorder (RAD), and post-traumatic stress disorder

4 (PTSD). See, e.g., AR 4926. 5 20. During the pre-litigation process, Plaintiff emphasized that A.C.’s diagnostic profile is 6 complex and requires specialized treatment to address his symptoms and underlying issues. AR 7 20. She pointed specifically to the AACAP RAD Practice Parameter (available at 8 https://tinyurl.com/bdhcf8h3), which she wrote, “summarizes the clinical best practices and 9 appropriate interventions for patients struggling with RAD.” Id. Plaintiff again referenced the 10 AACAP standards in her summary judgment motion, this time pointing also to the Principles of 11 Care (available at https://tinyurl.com/39w939j3). Dkt. # 53 at 19–20. 12 21. Premera’s denial letters and summary judgment briefing do not address the RAD Practice

13 Parameter. AR 1801, 4249; Dkts. ## 48, 59, 64, 69. Premera’s opposition to Plaintiff’s motion 14 for summary judgment addresses the Principles of Care but does not argue that they are not 15 “based on credible scientific evidence published in peer reviewed medical literature generally 16 recognized by the relevant medical community, physician specialty society recommendations 17 and the views of physicians practicing in relevant clinical areas and any other relevant factors.” 18 See AR 5949. It argued only that the AACAP standards do not “establish a policy or standards 19 for determining when residential treatment is medically necessary.” Dkt. # 59 at 6.16 But as the 20 Court has explained, it consults these documents—along with other record evidence—only to 21

22 16 Premera also did not object to the AACAP standards on the ground that they fall outside the administrative record. The Court concludes that consulting these standards does not require going outside 23 the record, as the AACAP standards were raised in the pre-litigation appeal and both documents are in the public record. But also, Premera conceded at oral argument that the Court may look outside the 24 administrative record in defining “generally accepted standards of medical practice.” See Dkt. # 68 at 18. 1 help define “generally accepted standards of medical practice,” not medical necessity as a whole 2 (which is otherwise defined adequately by the plan language).17 3 22. The AACAP RAD Practice Parameter explains that there are two basic psychotherapeutic 4 modalities to help children with RAD and their caregivers attune to each other and interact more 5 positively: working through the caregiver and working with the caregiver-child dyad (or family) 6 together.18 The second modality, dyadic therapy, was provided to A.C., his mother N.C., and his 7 sister K.C. at CALO about weekly. See, e.g., AR 4874 (noting the use of “dyadic developmental 8 psychotherapy” during weekly family therapy sessions). A.C.’s treatment plans and medical 9 records also reflect multiple other treatment modalities used to address his mental health needs 10 including individual therapy, group therapy, alpha stim therapy, canine therapy, and milieu 11 therapy. See generally AR. Defendant makes no arguments that these treatment modalities were 12 not clinically appropriate for A.C., given his diagnostic profile. See generally Dkts. ## 48, 59, 13 64, 69; cf. Andrew C. v. Oracle Am. Inc. Flexible Benefit Plan, 474 F. Supp. 3d 1066, 1082 (N.D. 14 Cal. 2020) (where the court chose to rely on guidelines that were more specifically tailored to 15 Plaintiff’s diagnostic profile than those mainly referenced by Defendant).19 16

17 Premera also notes that the plaintiff in Todd R v. Premera Blue Cross Blue Shield of Alaska, 17 No. C17-1041JLR, 2021 WL 2911121, at *10 (W.D. Wash. July 12, 2021), advocated for the application of the AACAP Principles and the court rejected the argument. But Todd R is distinguishable from this 18 case because there, the court found that the Milliman Care Guidelines were incorporated into Premera’s medical policy. Id. at *14. Therefore, the court would have been justified in deviating from the 19 guidelines only if they did not track the generally accepted standards of care. Here, the parties agree that the InterQual guidelines are not incorporated into the Plan and therefore the Court may consult other 20 record evidence in defining ambiguous Plan terms. 18 Practice Parameters, Principles, Guidelines and Resource Centers, AACAP, available at 21 https://tinyurl.com/bdhcf8h3; see also AR 940. 19 Defendant argues that Andrew C. is no longer good law because the court there relied on the since-overruled Wit district court opinion. See Dkt. # 69 at 4 (“[Andrew C] rejected the guidelines that 22 United Healthcare used to determine medical necessity. Citing the district court’s (now overruled) opinion in Wit, [it stated] that United’s ‘Optum Guidelines are not consistent with any generally accepted 23 standards of medical practice’ with no further analysis”). But Defendant misstates the holding of the case. In fact, the court in Andrew C did not reach whether the Optum Guidelines tracked generally 24 1 23. Indeed, A.C.’s medical records from CALO establish, by a preponderance of the 2 evidence, that his treatment was both clinically appropriate and adhered to the generally accepted 3 standards of care. A.C.’s treatment team was comprised of various mental health professionals

4 with graduate level training. See, e.g., AR 677, 4874, 2830, 4543 (family and individual therapy 5 facilitated by Angie Doden, P.L.P.C. and Chris Austin, M.A., L.P.C., N.C.C.); 614, 4553 (group 6 therapy facilitated by Chris Austin M.A., L.P.C., N.C.C., Sarah Barlett, L.C.S.W.); 642, 1447 7 (medication management and psychiatric examinations by Maria Bernabe, M.D. and Jyotsna 8 Nair, M.D.); see AACAP Principles of Care at 2. A.C. met with a psychiatrist—typically Dr. 9 Nair—weekly for medication management and a psychiatric examination. Id.; see, e.g., AR 472, 10 446, 2975, 406, 384 (visits with Dr. Nair in August 2019); see also AR 1724–25 (InterQual 11 guidelines). CALO provided A.C. with mental health care, physical health care, and education. 12 See, e.g., AR 426; see also AACAP Principles of Care at 3. A.C.’s treatment team created

13 monthly Treatment Plans (the first of which was drafted on the date of his admission) that 14 include DSM diagnoses, short-term and long-term goals with estimated dates of completion, 15 medication monitoring, planned interventions, and discharge planning. See, e.g., AR 426; see 16 also AACAP Principles of Care at 4–5; AR 1724–25 (InterQual guidelines). 17 24. Lastly, Plaintiff has established, by the preponderance of the evidence, that the treatment 18 A.C. received at CALO was not “primarily for the convenience of the patient, physician, or other 19 health care provider, and not more costly than an alternative service or sequence of services at 20 least likely to produce equivalent therapeutic or diagnostic results as to the diagnosis or treatment 21

22 accepted medical standards, and instead found that Plaintiff was entitled to benefits even under the guidelines. Andrew C., 474 F. Supp. 3d at 1981 (“[T]he Court need not reach the question of whether 23 UHC used the Guidelines improperly to deny benefits since the Court finds Andrew was entitled to benefits for the period in dispute even under those Guidelines.”). It therefore remains good law despite 24 the Ninth Circuit’s decision in Wit. 1 of that patient’s illness, injury or disease.” AR 5949.20 Based on A.C.’s diagnostic and 2 treatment history, the Court concludes that any lower level of care would not have safely 3 managed his symptoms. 4 25. Before A.C.’s admission to CALO, his mental health conditions and behaviors had 5 escalated to the point where less intensive levels of care were not keeping him and his family 6 safe. He had engaged in several years of counseling without success; the record shows that his 7 providers could not make effective interventions and that A.C. refused to comply with treatment. 8 See, e.g., 771. The record also shows that A.C. was prescribed many medications to treat his 9 symptoms over the years, also with limited success. AR 994, 1006, 4943. He continued to 10 display dangerous symptoms such as physical and verbal aggression, suicidal thoughts, id, AR 11 1008, hypervigilance, severe anxiety, and depression. See, e.g., AR 1008. On at least two 12 separate occasions, the police were called (once by A.C. himself because he did not feel safe and

13 once by N.C. after he became physically aggressive with her) and he was hospitalized. See AR 14 981–991, 1005–1006. A.C.’s most recent hospitalization immediately preceded his admission to 15 a community-based acute treatment (CBAT) program at Franciscan Children’s Hospital, AR 16 1012–1019, which then led to his admission to a therapeutic wilderness program (New Vision), 17 AR 1022–1026, so that he could “stabiliz[e]” before enrolling in CALO. Id. A.C.’s admissions 18 paperwork at CBAT, New Vision, and CALO document a history of depression, anxiety, suicidal 19 20 20 Although the Court finds this definition to be unambiguous, it notes that the AACAP Principles of Care articulate an analogous standard: 21 When the treating clinician has considered less restrictive resources and determined that 22 they are either unavailable or not appropriate for the patient’s needs, it might be necessary for a child or adolescent to receive treatment in a psychiatric residential treatment center (RTC). In other cases the patient may have already received services in 23 a less restrictive setting and they have not been successful. 24 AACAP Principles of Care at 1. 1 ideation, and verbal aggression escalating to physical aggression. AR 1014–1015, 1022–1026, 2 4939–4940, 4926.21 3 26. Because lower levels of care had not been effective in safely managing A.C.’s symptoms, 4 and the fact that his providers had considered alternate courses of treatment but determined that 5 he required the stability and structure of a residential treatment program, the Court concludes 6 that his stay at CALO was “not primarily for the convenience of the patient, physician, or other 7 health care provider, and not more costly than an alternative service or sequence of services at 8 least likely to produce equivalent therapeutic or diagnostic results . . .” AR 5949. Cf. AR 4926 9 (“[A.C.] knows that he needs to address his trauma, but wishes he could do it at home, in 10 outpatient treatment, rather than in Residential Treatment.”). 11 27. Thus, Plaintiff has shown by a preponderance of the evidence that A.C.’s treatment at 12 CALO was medically necessary under the Plan. He is therefore entitled to coverage.

13 B. Plaintiff’s Claim for Equitable Relief under 29 U.S.C. § 1132(a)(3) 14 Because the Court awards benefits to Plaintiff under 29 U.S.C. § 1132(a)(1)(B), it 15 concludes that equitable relief under 29 U.S.C. § 1132(a)(3) would be inappropriate. See 16 Varity Corp. v. Howe, 516 U.S. 489, 515 (1996) (“where Congress elsewhere provided adequate 17 relief for a beneficiary’s injury, there will likely be no need for further equitable relief”); Moyle, 18 823 F.3d at 961 (reading Varity to prohibit duplicate recoveries under § 1132(a)(1)(B) and 19 § 1132(a)(3)); Lefler v. United Healthcare of Utah, Inc., 72 F. App’x 818, 826 (10th Cir. 2003). 20 The Court therefore dismisses Plaintiff’s Parity Act claim. 21

22 21 The Court also notes that A.C.’s complex mental health history and diagnostic profile is compounded by his adoption at a young age (which apparently resulted in feelings of abandonment and attachment issues), sexual abuse by a family friend over several years when he was a young child, and 23 exposure to his sister’s violent tantrums and conflicts with his mother. The record also shows that A.C.’s sister was both a victim and a perpetrator of sexual abuse, see, e.g., AR 1014, which understandably made 24 A.C.’s home at times feel like an unsafe environment. 1 IV 2 CONCLUSION 3 For the foregoing reasons, the Court GRANTS Plaintiff’s motion in part and awards 4 ||judgment for Plaintiff on her claim for denial of benefits under 29 U.S.C. § 1132(a)(1)(B). The 5 Court otherwise DENIES the motions. 6 The parties shall, within thirty (30) days of the date of this Order: (1) meet and confer to 7 ||resolve the amount of unpaid benefits due, and (2) submit a proposed judgment consistent with || the terms of this Order. 9 This terminates Docket Nos. 48 and 53. 10 Dated this 31st day of March, 2023. 1] 12 CJok. 4. Char 13 John H. Chun United States District Judge 14 15 16 17 18 19 20 21 22 23 24