1. Case Name: H.H. and V.G. v. Aetna Life Insurance Company
2. Type of Treatment Services Denied: Wilderness Therapy Programs and Residential Treatment
- Plaintiff: Jordan Lewis, Jordan Lewis, P.A. and Edward Zebersky, Zebersky Payne, LLP
- Defendant: Charles Rosenberg, Michael Valerio, and Waldemar Pflepsen, Carlton Fields Jordan Burt, PA
4. Format: Order Granting Motion to Dismiss
- ERISA Claim? Yes
- Class Action/or Individual Action: Class Action
- Defendant: Plan underwriter and administrator
- Type of Insurance Plan: Employer-Sponsored Health Insurance Plan
- Type of Coverage Denial: Medical Necessity
6. Legal Pointer: Complaints must be detailed and drafted in a way to preempt Motions to Dismiss.
7. Legal Issues and Causes of Action: Plaintiffs initiated this lawsuit, asserting claims under ERISA and the Federal Parity Act.
Ruling: Defendant’s Motion to Dismiss was granted without prejudice.
8. Narrative Case Description: V.G. struggled for years with mental health issues such as ADHD, autism and suicide ideation. After outpatient treatment and other therapies had not been successful, V.G.’s therapist recommended that she go to Aspiro Group, Inc, a wilderness therapy program. Coverage was sought for the treatment at Aspiro from between March 6, 2016 to May 4, 2016 for services totaling $28,500. Aetna denied that claims submitted for V.G.’s treatment at Aspiro on the ground that the services were rendered at a “Wilderness Treatment Program or any such related or similar program, school or education services.” V.G. appealed the denial, which Aetna later affirmed as a “Final Appeal Decision.”
H.H. struggled for years with mental health issues such as anxiety, depression and suicide ideation. After outpatient treatment, hospitalization and other therapies had not been successful, H.H.’s therapist recommended that he go to Open Sky Wilderness Therapy. Coverage was sought for his treatment at Open Sky from March 29, 2016 to June 29, 2016 for services totaling $45,105. Aetna denied the claims submitted for H.H.’s treatment at Open Sky on that grounds that “the service requested must not be a Wilderness Treatment Program or any such related or similar program, school, and/or education service.” H.H. appealed the coverage decision to the second level, which was affirmed by Aetna.
Count 1 – H.H.’s Insurance Plan
H.H. alleged that his treatment at Open Sky was covered under a provision of his health insurance plan providing coverage for “Treatment of Mental Disorders and Substance Abuse.” H.H.’s plan stated that it covered charges incurred in a residential treatment facility for treatment of mental disorders or substance abuse. The plan included a detailed list of requirements for a facility to qualify as a residential treatment facility for the plan’s purposes, including that the facility must have a licensed behavioral health provider on site twenty-four hours per day and seven days per week, the facility must perform a comprehensive patient assessment before or upon admission, the patients must be admitted to the facility by a physician, and the facility must have access to necessary medical services twenty four hours per day and seven days per week. The Court concluded that H.H. did not sufficiently allege that Open Sky met the definitional requirements to be covered as a residential treatment facility under his insurance plan. The Complaint did not, for example, sufficiently allege that Open Sky had a licensed behavioral provider on site at all hours or that it had access to necessary medical services at all hours. Instead, Plaintiff alleged that Open Sky had “a primary physician, licensed to practice medicine, available to establish and maintain the health and medical plan and procedures of the facility.” This allegation did not meet the criteria for a residential treatment facility set forth in H.H.’s insurance plan. Furthermore, rather than alleging that Open Sky patients were admitted to the facility by a physician, Plaintiff merely alleged that H.H. went to Open Sky upon his therapist’s recommendation and failed to allege that any physician, including H.H.’s therapist, accepted him into Open Sky as an inpatient. H.H. also failed to allege that Open Sky completed a comprehensive assessment of patients before or upon admission, or even that Open Sky performed a comprehensive assessment of H.H. before or upon his admission. Instead, the Complaint only alleged that patients at licensed residential treatment centers, including H.H., typically received a psychiatric assessment on intake. The Court opined that these allegations were insufficient to meet the definition of a residential treatment facility under the insurance plan and, accordingly, granted Defendant’s Motion to Dismiss as to Count 1.
Counts 4 & 5 – V.G.’s Insurance Plan
V.G. alleged that her treatment at Aspiro was covered by her health insurance plan. V.G.’s plan covered inpatient mental health services at “Mental Health Residential Treatment Services” and inpatient substance abuse services at “Substance Abuse Residential Treatment Services.” The plan defined these residential treatment services as “services for the evaluation and treatment of the psychological and social functional disturbances that are the result of subacute mental health or substance abuse conditions provided by an institution which specializes in the treatment of mental health conditions or that specializes in the treatment of psychological and social disturbances that are a result of substance abuse; provides a subacute, structured psychotherapeutic treatment program under the supervision of physicians, provides 24-hour care in which a person lives in an open setting, and is licensed in accordance with the laws of the appropriate legally authorized agency.” The Court concluded that Plaintiff did not sufficiently allege that Aspiro qualified as a residential treatment service because, in the Complaint, Plaintiff alleged that Aspiro was licensed under Utah law as an outdoor youth treatment program rather than as a residential treatment program. While a residential treatment program was an “inpatient service that provides for or arranges for the provision of specialized treatment, rehabilitation or habilitation services for persons with emotional, psychological, developmental, or behavioral dysfunctions, impairments, or chemical dependencies,” an outdoor youth program was “designed to provide rehabilitation services to adjudicated minors.” Accordingly, Utah holds organizations licensed as residential treatment programs to more stringent requirements than organizations licensed as outdoor youth programs. As an outdoor youth program, Aspiro did not meet the criteria to qualify as a residential treatment service under V.G.’s plan. Having failed to show that Aspiro was licensed as a residential treatment service, Plaintiff failed to sufficiently allege that Aspiro’s services were covered, and, accordingly, Counts 4 and 5 of Plaintiffs’ Complaint were dismissed.
Count 2 & 3 – H.H.’s Parity Act Claim
Plaintiffs made three attempts to allege a Parity Act violation. First, Plaintiffs argued that Aetna excluded all coverage for mental health treatment received at residential treatment center programs, but covered medical/surgical services provided at skilled nursing facilities. As a categorical challenge, the Court concluded that this was plainly incorrect as H.H.’s insurance plan did provide coverage for inpatient treatment for mental disorders or substance abuse at residential treatment facilities and there were no blanket exclusions of mental health or substance abuse treatment provided by residential treatment center programs. The Court opened that this argument also failed on an as-applied basis because Plaintiffs did not sufficiently allege that Aetna had a practice of categorically denying coverage for mental health or substance abuse services at residential treatment centers. Rather, all that Plaintiffs described was that under two different insurance plans, Aetna denied coverage for services by two separate inpatient residential treatment facilities. The two insurance plans contained different criteria for assessing whether a residential treatment facility was covered by the plan, and the two residential treatment facilities were located in different states and were subject to separate licensing regimes. Second, Plaintiffs alleged that Aetna’s requirements for what counted as a residential treatment facility under H.H.’s plan violated the Parity Act because the plan did not impose similar requirements for skilled nursing facilities. The Court concluded that Plaintiffs failed to allege a disparity in limitation criteria. Rather, Plaintiffs argued that Aetna’s definitional criteria for residential treatment facilities, which were more onerous than Colorado’s licensing requirements, were only compliant with the Parity Act if Aetna also required skilled nursing facilities to meet criteria that go beyond Colorado’s licensing requirements. Plaintiffs did not, however, actually allege whether or not Aetna imposed such criteria on skilled nursing facilities, or even what criteria Aetna required of skilled nursing facilities. Third, Plaintiffs attempted to allege an as-applied challenge to Aetna’s refusal to cover H.H.’s treatment at Open Sky. Plaintiffs alleged that “Aetna Life has employed processes, strategies, evidentiary standards and other factors in assessing medically necessary services rendered at residential treatment center programs that are different than the standards it employs in assessing medically necessary services rendered at skilled nursing facilities.” The Court opined that these allegations failed for the same reason as Plaintiffs’ first as-applied challenge: they were conclusory and unsupported by anything else in the Complaint. While at this stage of the litigation, Plaintiffs did not need to have proof of the specific processes that Aetna allegedly used to deny coverage to residential treatment facilities, Plaintiffs still were required to include some factual allegations to lend support to their claim. Plaintiffs failed to do so, and therefore, the Court dismissed Counts 2 & 3 of the Complaint.
9. Additional Comments: H.H. and V.G. initiated this lawsuit in their individual capacity and as representatives of a class of people; however, on October 30, 2018, they informed the Court that they no longer sought to proceed with this matter as a class action and were instead only pursuing their claims on an individual basis.
10. Website: None.
11. Practical Implications and Lessons Learned: None.
12. All Legal Theories Presented in Case: Plan Enforcement under 29 U.S.C. 1132(a)(1)(B) and Violation of Parity Act under 29 U.S.C. 1132(a)(1)(B) and 29 U.S.C. 1132(a)(3)
13. Successful Legal Theories in Case: None.