1. Case Name: Moura v. Kaiser Foundation Health Plan, Inc.

 2. Type of Treatment Services Denied: Residential Treatment

  3. Lawyers:

  1. Plaintiff: Lisa Kantor & J. David Oswalt, Kantor & Kantor, LLC; Kathryn Trepinski, Law Offices of Kathryn Trepinski
  2. Defendant: Sarah Gettings and Joseph Laska, Manatt, Phelps & Phillips, LLP

 4. Format: Order Granting Defendant’s Motion for Summary Judgment

 5. Outline:

  1. ERISA Claim? Yes
  2. Class Action/or Individual Action: Class Action
  3. Defendant: Plan underwriter and administrator
  4. Type of Insurance Plan: Employee Benefit Health Plan
  5. Type of Coverage Denial: Medical Necessity

 6. Legal Pointer: None.

 7. Legal Issues and Causes of Action: Plaintiff, on behalf of himself and other similarly situated, alleged that Kaiser’s pattern and practice of treatment for eating disorders violated ERISA and the California and Federal Health Parity Acts.

Ruling: Plaintiff’s medical records clearly indicated that although his treating therapist determined that he required a higher level of care, he was not amenable to a referral within the Kaiser medical system and instead elected to pursue a residential treatment program that was out of network and required out-of-pocket payment from his parents. Because Plaintiff’s therapist was willing to make a referral and the Plan did provide for residential treatment of eating disorders, Plaintiff failed to raise disputed issues of fact regarding his claim for breach of fiduciary duty. As such, Defendant’s Motion for Summary Judgment was granted.

 8. Narrative Case Description: Plaintiff was a twenty-nine-year-old man who has suffered with anorexia nervosa and alleged his claim for treatment for his eating disorder was wrongfully denied. Plaintiff alleged that Kaiser engaged in a pattern and practice of behavior in the treatment of its members suffering with bulimia nervosa or anorexia nervosa which violated ERISA, the California Mental Health Parity Act and the Federal Mental Health Parity Act. More specifically, Plaintiff alleged that there were no Kaiser Plan Providers who offered Residential Treatment for members with bulimia nervosa or anorexia nervosa and that Kaiser did not enter sufficient contracts with outside providers who provided such Residential Treatment.

Kaiser moved for summary judgment of Plaintiff’s claim for breach of fiduciary duty against the plan administrators. In his opposition to the pending motion, Plaintiff argued that Kaiser failed to provide “any understandable procedures for eating disorder patients to access residential treatment” and the “plan expressly excluded residential treatment.” Plaintiff further alleged that ‘there were no Plan Providers who offered residential treatment for eating disorders to Plan members during the relevant time period.”

With a developed evidentiary record, the Court was able to ascertain that Kaiser did in fact have contracts with outside providers who provided residential treatment for eating disorders and, in Plaintiff’s particular case, provided him with residential treatment. There was also evidence that Plaintiff’s treating therapist was functioning under the understanding that he had determined an out-of-network residential treatment option was preferred. Although Dr Rau suggested that her patient look into whether Kaiser would fund the treatment and offered to refer Plaintiff for further treatment within Kaiser, these options were not taken by Plaintiff. Plaintiff sought the advice and recommendations of his Kaiser treating therapist in aid of his research of out-of-network facilities that he knew were not covered under his plan. The Court held that Plaintiff’s decisions could not be attributed to Kaiser Foundation Health Plan and that during the relevant period that Plaintiff was covered by Kaiser, Plaintiff received treatment for his eating disorder on all levels of care.  Although Plaintiff was not satisfied with the treatment he received at these Kaiser facilities, there was no question that the residential and outpatient services were provided and covered. Therefore, Plaintiff’s contention that there were no Kaiser providers who offered residential treatment for members with bulimia nervosa or anorexia nervosa or that Kaiser did not enter sufficient contracts with outside providers for these services was expressly contradicted by the undisputed record in the case.

Plaintiff also contended that the proper procedure for receiving a referral for prior authorization for out-of-network services was not followed. More specifically, Plaintiff argued that although his treating therapist, Dr. Rau, confirmed that he needed residential treatment, she could not give him a referral for the treatment. However, the Court held that the record indicated that although Dr. Rau discussed various treatment options with both Plaintiff and his mother, the doctor understood that Plaintiff would not agree to a treatment plan within the Kaiser system. Instead, it was clear from the medical records produced under seal that although Dr. Rau believed a higher level of care was required and offered to refer Plaintiff to the facilities offered within Kaiser, gave her opinions about the independently researched residential facilities that Plaintiff and his mother had discovered through recommendations from Plaintiff’s private provider, and suggested that Plaintiff contact member services to see about coverage, Plaintiff elected to pursue an out-of-network residential treatment option and pay out-of-pocket.  When Plaintiff conducted his own research into facilities that were more appealing than those originally offered under his Kaiser plan, Dr. Rau let him know that the way to get coverage was to get an intake and to be assessed and then to see whether member services could help with providing coverage for possible the out-of-network options. Plaintiff himself was treated in a covered residential treatment program covered by Kaiser’s plan. The Court opined that the records reflect that, after reviewing his options for treatment including both in-network and out, Plaintiff knowingly elected a residential program that was not within the plan’s coverage and did not seek to have the treatment covered by Kaiser. As such, the Count concluded that Kaiser did not interfere with the medical judgment of its providers and allowed treating providers to determine what would be medically necessary. The record was full with instances in which Kaiser providers offered services to Plaintiff, including referral services for residential treatment, but the communications with Plaintiff indicated that he elected not to pursue those options. The communications with his treating therapist indicated his decision to pursue residential therapy outside of the Kaiser system. That decision was not made by Defendant. Instead, perhaps out of dissatisfaction with the options offered in-network and without navigating referral system and involving member services with seeking permission to go out of network, Plaintiff communicated his intention to pursue out-of-network treatment with full awareness that it would need to be paid for out-of-pocket. Therefore, the Court found that these undisputed facts did not support a claim for breach of fiduciary duty against the plan administrators.

 9. Additional Comments: The Court granted Kaiser’s Motion to Dismiss the original Complaint with leave to amend on the basis that Plaintiff had failed to allege that she had exhausted his administrative remedies for a benefits claim. Plaintiff subsequently file an Amended Complaint which omitted reference to his claims for benefits pursuant to 29 U.S.C. Section 1132(a)(1)(B) and retained only a claim pursuant to 20 U.S.C. Section 1132(a)(3) for breach of fiduciary duty again the plan administrators.

  10. Website: None.

 11. Practical Implications and Lessons Learned: None.

 12. All Legal Theories Presented in Case: Breach of ERISA, Breach of California Mental Health Parity Act, Breach of Unruh Civil Rights Act, Breach of California Medical Practices Act, and Breach of Federal Metal Health Parity Act

 13. Successful Legal Theories in Case: None.




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