Doe v. Harvard Pilgrim Health Care ( 2020 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 19-1879
    JANE DOE,
    Plaintiff, Appellant,
    v.
    HARVARD PILGRIM HEALTH CARE, INC.; THE HARVARD PILGRIM PPO PLAN
    MASSACHUSETTS, GROUP POLICY NUMBER 0588660000,
    Defendants, Appellees.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MASSACHUSETTS
    [Hon. Denise J. Casper, U.S. District Judge]
    Before
    Torruella, Selya, and Kayatta,
    Circuit Judges.
    Mala M. Rafik, with whom Sarah E. Burns and Rosenfeld & Rafik,
    P.C. were on brief, for appellant.
    Steven L. Schreckinger, with whom Jane M. Guevremont and
    Anderson & Kreiger LLP were on brief, for appellees.
    September 9, 2020
    KAYATTA, Circuit Judge.             Jane Doe spent several months
    of   2013    at     a    residential     mental     health   treatment   center,
    interrupted by several days in an inpatient hospital in June of
    that year.     The Defendants ("Harvard Pilgrim") agreed to cover the
    costs of Doe's treatment at the residential facility, the Austen
    Riggs Center ("Riggs") in Massachusetts, for her first few weeks
    there, as well as the months after her stint in an inpatient unit.
    However, Harvard Pilgrim denied coverage for the time period from
    February 13, 2013, through June 18, 2013, asserting that Doe could
    have stepped down to a lower level of treatment during those
    months.     Doe sued Harvard Pilgrim in the District of Massachusetts
    seeking de novo review of her claim for coverage of that time
    period      under       the   Employee    Retirement    Income   Security   Act
    ("ERISA"), 
    29 U.S.C. §§ 1001
    –1461.                Following an earlier appeal,
    the district court entered judgment for Harvard Pilgrim on remand.
    Doe now appeals both that judgement and the district court's
    refusal to award Doe attorneys' fees for her success on the prior
    appeal.     For the following reasons, we affirm the district court's
    rulings.
    I.
    Our previous opinion in this case reviewed in detail the
    events giving rise to this litigation.              See Doe v. Harvard Pilgrim
    Health Care, Inc., 
    904 F.3d 1
    , 2–6 (1st Cir. 2018) (Doe I).                  For
    the purposes of this appeal, we set out a short summary of the
    - 2 -
    relevant facts here:      Doe began experiencing serious symptoms of
    psychological illness during her first year of college in 2012 and
    was hospitalized twice over the course of a few months.                       On
    January 17, 2013, Doe was admitted to Riggs.                Harvard Pilgrim
    approved initial coverage of her treatment there for seven days.
    Harvard    Pilgrim   eventually    extended    Doe's       coverage    through
    February 5, but on that date sent Doe a letter stating that her
    treatment at Riggs would not be covered as of February 6.                   Doe
    initiated an expedited internal review of the decision, which
    Harvard Pilgrim denied on February 12, 2013, based on a report by
    Dr. Michael Bennett.      Harvard Pilgrim accepted coverage through
    February 12, and otherwise stood by its denial. Subsequently, on
    March 12, 2013, an anonymous, independent expert retained by the
    Massachusetts Office of Patient Protection ("OPP") also upheld
    Harvard Pilgrim's denial of coverage for a continued stay at Riggs,
    albeit beginning as of February 13, not February 6.
    During the course of these reviews, Doe remained at Riggs
    for treatment. On June 18, however, Doe was transferred from Riggs
    to inpatient treatment at Berkshire Medical Center.             She was then
    readmitted to Riggs from Berkshire Medical Center on June 24.
    Although   Harvard   Pilgrim    initially    denied      coverage   for    Doe's
    second admission to Riggs (beginning on June 24, 2013), it reversed
    that   decision   after   an   internal    review   by    Dr. Edward      Darell
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    concluded that the second admission was medically necessary.                  Doe
    was finally released from Riggs on August 7, 2013.
    Doe filed this case against Harvard Pilgrim in March
    2015.     Harvard Pilgrim's Medical Director, Dr. Joel Rubenstein,
    conducted another review in September 2015 and concluded that
    Harvard Pilgrim had properly denied coverage.                 Harvard Pilgrim
    then agreed to reconsider that decision.              Doe I, 904 F.3d at 4, 9.
    That reconsideration generated further information and medical
    opinions, including two offered by Doe (by Drs. Gregory Harris and
    Eric Plakun), all of which Harvard Pilgrim reviewed as the parties
    agreed.    Id. at 4.      After Harvard Pilgrim reaffirmed its decision
    denying coverage for the time period at issue, the parties filed
    cross-motions for summary judgment.           Id. at 5.    The district court
    restricted its review to the administrative record as of March 12,
    2013, and therefore did not consider records generated or exchanged
    during Harvard Pilgrim's reconsideration of its denial.                See Doe
    v.   Harvard    Pilgrim    Health    Care,    Inc.,    No. 15-10672,   
    2017 WL 4540961
    , at *10–11 (D. Mass. Oct. 11, 2017).                  Ultimately, the
    district court agreed with Harvard Pilgrim and entered summary
    judgment dismissing Doe's claim.         See 
    id. at *15
    .      On Doe's appeal,
    we vacated the judgment, ruling that the district court should
    include    in   the   record   and    consider    the    additional    material
    generated as a result of Harvard Pilgrim's agreement to conduct a
    supplemental review of additional information, as well as other
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    information produced in the interim (letters from Doe's treating
    psychologist, Dr. Sharon Krikorian, and documents relating to
    Doe's    second   admission,       including   a   report   from    Dr. Edward
    Darell).    Doe I, 904 F.3d at 4, 6–9, 11.          We also clarified that,
    in the event of a second appeal, we would review the district
    court's factual findings only for clear error.              Id. at 9–11.        On
    remand, the district court again granted summary judgment for
    Harvard Pilgrim, and Doe now appeals a second time.
    II.
    A.
    1.
    As we explained previously, "[i]n the ERISA context,
    'the    burdens   and   presumptions     normally    attendant     to     summary
    judgment    practice    do   not    apply.'"       Doe I,   904    F.3d    at   10
    (alteration omitted) (quoting Stephanie C. v. Blue Cross Blue
    Shield of Mass. HMO Blue, Inc., 
    813 F.3d 420
    , 425 n.2 (1st Cir.
    2016) (Stephanie C. I)).       Instead, a summary judgment motion in a
    lawsuit contesting the denial of benefits under ERISA "is simply
    a vehicle for teeing up the case for decision on the administrative
    record."   
    Id.
        (citing Doe v. Standard Ins. Co., 
    852 F.3d 118
    , 123
    n.3 (1st Cir. 2017)).        Unless discretionary authority has been
    granted to the plan administrator, the district court considers
    the issues de novo and "may weigh the facts, resolve conflicts in
    evidence, and draw reasonable inferences."             Stephanie C. v. Blue
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    Cross Blue Shield of Mass. HMO Blue, Inc., 
    852 F.3d 105
    , 111 (1st
    Cir. 2017) (Stephanie C. II) (citing Orndorf v. Paul Revere Life
    Ins. Co., 
    404 F.3d 510
    , 518 (1st Cir. 2005)).                     Thus, "summary
    judgment in the ERISA context is akin to judgment following a bench
    trial in the typical civil case."             Doe I, 904 F.3d at 10–11.         As
    a result, we review the district court's factual findings for clear
    error.   Id. at 11.
    2.
    Doe's      family's    plan    from    Harvard     Pilgrim    provides
    coverage only for treatment that is "medically necessary."                     The
    plan defines "medically necessary" treatment as:
    Those health care services that are consistent
    with   generally   accepted    principles   of
    professional medical practice as determined by
    whether:   (a) the    service  is    the  most
    appropriate supply or level of service for the
    Member's condition, considering the potential
    benefit and harm to the individual; (b) the
    service is known to be effective, based on
    scientific evidence, professional standards
    and expert opinion, in improving health
    outcomes;    and,    (c) for    services   and
    interventions that are not widely used, the
    service for the Member's condition is based on
    scientific evidence.
    To determine medical necessity in the context of mental
    health treatment, Harvard Pilgrim employs the Optum Level of Care
    Guidelines     from   United     Behavioral      Health   ("the     Guidelines").
    Under    the   Guidelines,       residential      treatment    is    defined   as
    "provid[ing] overnight mental health services to members who do
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    not require 24-hour nursing care and monitoring offered in an acute
    inpatient setting but who do require 24-hour structure."        The
    parties agree that Riggs provides such residential treatment.    In
    order for such treatment to be medically necessary, the plan member
    must meet one of the three following criteria:
    1. The member is experiencing a disturbance in
    mood, affect or cognition resulting in
    behavior that cannot be safely managed in a
    less restrictive setting. - OR -
    2. There is an imminent risk that severe,
    multiple    and/or    complex    psychosocial
    stressors will produce significant enough
    distress or impairment in psychological,
    social, occupational/educational, or other
    important areas of functioning to undermine
    treatment in a lower level of care. - OR -
    3. The member has a co-occurring medical
    disorder or substance use disorder which
    complicates treatment of the presenting mental
    health condition to the extent that treatment
    in   a   Residential   Treatment   Center   is
    necessary.
    No party argues that Doe met the third criterion; instead, Doe
    maintains that she qualified for residential treatment under the
    first two criteria.      The district court -- like Harvard Pilgrim
    -- found that Doe did not meet either of the first two criteria as
    of February 13, 2013.1
    1  For continued care after initial approval, the Guidelines
    require -- among other things -- that "[t]he criteria [listed
    above] for the current level of care continue to be met" and "[t]he
    member's current symptoms and/or history provide evidence that
    relapse or a significant deterioration in functioning would be
    imminent if the member was transitioned to a lower level of care."
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    Doe's overarching argument on appeal is that the expert
    reports that formed the basis for Harvard Pilgrim's denials of
    coverage     improperly   used    an   incorrect   standard     of   care,
    essentially requiring that she need 24-hour nursing care, even
    though the Guidelines state explicitly that residential treatment
    should be available "to members who do not require 24-hour nursing
    care and monitoring offered in an acute inpatient setting but who
    do require 24-hour structure."         Specifically, the OPP reviewer
    justified his or her decision based on finding "no evidence that
    the patient required 24 hour supervision or nursing care," and Dr.
    Rubenstein's report similarly repeatedly references "24 hour care"
    as   the   relevant   benchmark   without   mentioning   the   Guideline's
    language of "24-hour structure."        (The only other expert in the
    record to conclude that the first admission was not necessary after
    February 13, 2013, Dr. Bennett, did not reference the Guideline
    language at all.)
    We disagree with Doe:      It was not clear error for the
    district court to rely on these reports despite their references
    to "24-hour care."     To begin, it was hardly error for the experts
    to cite the lack of any need for round-the-clock care in the first
    place.     The experts would have erred only if they opined that a
    Because we uphold the district court's decision that the standard
    for the current level of care was not met as of February 13, it
    follows that the criteria for continued care were not met at that
    point.
    - 8 -
    need   to   receive   such    care   was   necessary    to   qualify     for   the
    coverage.    The district court did not commit clear error in opting
    not to read the expert reports in that manner.               The OPP report in
    particular based its conclusion on a finding that Doe did not need
    "24 hour supervision or nursing care" (emphasis added).
    More generally, when read in context, the references to
    24-hour care can be understood as referring to the availability of
    such care as provided by Riggs.              Thus, even Doe's own expert,
    Dr. Harris,    referred      to   Doe's    repeated    accessing    of   24-hour
    nursing care during the night, presumably intending to say only
    that Doe needed nursing care to be available around the clock, not
    that she needed care to be actively provided for 24 hours each
    day.   The district court's opinion can then be read to explain
    that Doe did not require 24-hour "structure" either.               For example,
    the district court considered the length and frequency of Doe's
    trips away from Riggs (totaling nearly twenty days away) and the
    ways in which she utilized the services that were available to her
    there and concluded that all Doe needed was a system in which she
    could access nursing care each day to arrange a plan for safely
    managing her symptoms at night if necessary.             Although Doe argues
    that the district court should not have assumed Doe would have
    that ability at a lower level of care, she has not developed the
    record on why a partial hospitalization program would have been
    insufficient.
    - 9 -
    Doe's further arguments are similarly unavailing given
    the clear error standard of review.     Although Doe argues that the
    district court should have drawn different inferences from facts
    including her difficulty with interpersonal relationships inside
    and   outside   Riggs,   her   difficult   but    perhaps   supportive
    relationship with her family, her ability to ask for and access
    the services she needed at Riggs, the "casual" tenor of her
    interactions with nursing staff, and her ability to spend time
    away from Riggs for recreation and other personal reasons during
    her admission, we do not believe the district court clearly erred
    in making the inferences that it did, many of which were supported
    by the Bennett and Rubenstein reports.           Nor do we fault the
    district court for relying on evidence that Doe's condition had
    stabilized on medication leading up to the February 13 date. While
    Doe's condition obviously deteriorated at some point after that,
    it was not clear error for the district court to conclude that, at
    least at that point, her continued stay at Riggs was not medically
    necessary.
    Finally, Doe complains that the district court accepted
    the opinions of Harvard Pilgrim’s experts "without weighing their
    conclusions against the weight of the record."      We disagree.   The
    district court clearly reviewed the record as a whole, drawing
    inferences from both the facts and the expert opinions.       We find
    - 10 -
    no clear error in the fact that the district court implicitly
    agreed more with Harvard Pilgrim's experts than with Doe's.
    B.
    We turn now to Doe's argument that the district court
    erred in the manner in which it conducted the proceedings on
    remand.2   The district court treated as comprising the record
    everything compiled by or submitted to Harvard Pilgrim in the
    course of making its final coverage decision, as we ordered in
    Doe I, 904 F.3d at 9.     It then allowed the parties to submit
    extensive written argument directed to that record.    Finally, it
    held oral argument and issued a decision.
    In so proceeding, the district court did exactly what
    the law called for.   Judicial review of a benefits denial under 
    29 U.S.C. § 1132
    (a)(1)(B) takes the form of a review of "final ERISA
    2  Harvard Pilgrim -- viewing Doe's argument specifically as
    an argument for a Rule 52 bench trial on the papers -- maintains
    that Doe has waived the argument, because she neither sought a
    Rule 52 bench trial explicitly before the appeal to this court in
    Doe I, nor on remand.      Instead, on remand she moved for an
    evidentiary hearing with witnesses.       To the extent Doe is
    requesting a bench trial without additional witness testimony,
    that argument fails, too. She has not explained how such a bench
    trial on the papers would be different from the de novo review the
    district court conducted. See Doe I, 904 F.3d at 10–11 (explaining
    that "summary judgment in the ERISA context is akin to judgment
    following a bench trial in the typical civil case").       At oral
    argument, she posited that the district court might have given
    counsel more opportunity to make their arguments if it had been
    conducting a Rule 52 bench trial. But of course a district court
    always has the option to conduct oral argument on summary judgment
    motions (as it did here) -- how much time is allotted for that
    purpose is up to the district court in either situation.
    - 11 -
    administrative decision."          Id. at 6 (quoting Orndorf, 
    404 F.3d at 519
    ).     As such, we presume -- absent some very good reason to do
    otherwise -- that the record is limited to the record compiled by
    and submitted to the administrative decisionmaker leading up to
    and including its final administrative decision.                         
    Id.
     (citing
    Liston v. UNUM Corp. Officer Severance Plan, 
    330 F.3d 19
    , 23 (1st
    Cir. 2003) ("[A]t least some very good reason is needed to overcome
    the strong presumption that the record on review is limited to the
    record before the administrator.")).
    Doe offers no good reason for why the district court
    should not have proceeded in accord with this "strong presumption"
    against supplementing the administrative record.                  Liston, 
    330 F.3d at 23
    .    The case presents no claim that Harvard Pilgrim's process
    of     decision-making    was     unlawful     or    that      the   administrator
    exhibited     a   conflict   of    interest.        Nor    does   Doe    claim   that
    materials were improperly omitted from the record on remand, or
    that the district court did not comply with our decision in
    defining the record to be reviewed.
    Instead, Doe simply argues that she would have preferred
    that    the   various    experts    testify    and        be   subject    to   cross-
    examination, as if this were an insurance coverage dispute under
    state law, rather than judicial review of an administrator's
    benefit decision under ERISA.           That is an argument that we long
    ago rejected.      Orndorf, 
    404 F.3d at 519
     (explaining that judicial
    - 12 -
    review does not "warrant calling as witnesses those persons whose
    opinions and diagnosis or expert testimony and reports are in the
    administrative record").
    Doe argues that we should not rely on Orndorf here
    because Orndorf employed a standard of appellate review that has
    since been rejected in this Circuit.           See Doe I, 904 F.3d at 9–10
    (explaining the difference in appellate standards of review used
    in prior circuit cases).        But Orndorf's description of the record
    to   be   reviewed   by   the   district     court   did    not   hinge   on   its
    definition of the standard of review on appeal.               Rather, as Doe I
    explains, we have consistently held that the record before the
    district    court    should     match    the    record      reviewed      by   the
    administrative decisionmaker absent some special circumstance.
    Id., 904 F.3d at 6 (applying Orndorf and Liston to determine the
    scope of the record despite our move to a clear error standard of
    review).
    C.
    Finally, Doe appeals the district court's denial of her
    request for attorneys' fees and costs resulting from the litigation
    of the case up through our decision in Doe I.              ERISA allows a court
    "in its discretion [to] allow a reasonable attorney's fee and costs
    of action to either party."        
    29 U.S.C. § 1132
    (g)(1).          A court may
    award fees whenever a party has showed "some degree of success on
    the merits."    Hardt v. Reliance Standard Life Ins. Co., 560 U.S.
    - 13 -
    242, 245 (2010) (quoting Ruckelshaus v. Sierra Club, 
    463 U.S. 680
    ,
    694 (1983)); see Gastronomical Workers Union Loc. 610 & Metro.
    Hotel Ass'n Pension Fund v. Dorado Beach Hotel Corp., 
    617 F.3d 54
    ,
    66 (1st Cir. 2010).    Such a result must be more than a "trivial
    success" or "purely procedural victor[y]."       Hardt, 560 U.S. at 255
    (alteration in original) (quoting Ruckelshaus, 
    463 U.S. at
    688
    n.9); see Gastronomical Workers, 
    617 F.3d at 66
     (requiring a
    "merits outcome [that] produces some meaningful benefit for the
    fee-seeker").
    Doe argues that our previous remand to the district court
    defining the scope of the record and clarifying the clear error
    standard of review made her eligible for attorneys' fees under
    ERISA.    In so arguing, she relies primarily on Gross v. Sun Life
    Assurance Co. of Can., 
    763 F.3d 73
     (1st Cir. 2014).            In Gross,
    instead of reviewing a district court's denial of fees, we decided
    the claimant's eligibility for fees in the first instance and
    remitted to the district court to decide the appropriate amount.
    
    Id. at 75, 81
    .    We reasoned that an ERISA claimant was eligible
    for fees where we had previously remanded to the district court
    with instructions to remand to the plan administrator for a new
    review of the claim.       
    Id.
     at 77–78.
    We need not decide, however, whether Doe's win in Doe I
    makes her eligible for attorneys' fees under ERISA.                That is
    because   the   district    court    alternatively   held   that   "[e]ven
    - 14 -
    assuming arguendo that Hardt and Gross apply and Jane is eligible
    for an award of attorneys' fees . . . such award is not warranted
    here."    The standard guiding the district court's discretion in
    this analysis is set out in Cottrill v. Sparrow, Johnson & Ursillo,
    Inc., 
    100 F.3d 220
    , 225 (1st Cir. 1996).              See Gross, 763 F.3d at
    82 ("Although the Supreme Court in Hardt emphasized that the multi-
    factor tests traditionally used by courts to decide whether to
    award    fees   do   not   bear   on    the     eligibility   for   fees   under
    section 1132(g)(1), it allowed such inquiries as a second step to
    determine whether a claimant found eligible should be awarded fees.
    We continue to find useful the five factors delineated in our
    precedent."     (internal   citation      omitted)).      The   factors    "that
    customarily should be weighed in the balance" are the following:
    (1) [T]he degree of culpability or bad faith
    attributable to the losing party;
    (2) the depth of the losing party's pocket,
    i.e., his or her capacity to pay an award;
    (3) the extent (if at all) to which such an
    award would deter other persons acting under
    similar circumstances;
    (4) the benefit (if any) that the successful
    suit   confers   on  plan    participants  or
    beneficiaries generally; and
    (5) the relative merit of the parties'
    positions.
    Cottrill, 
    100 F.3d at
    225 (citing Gray v. New Eng. Tel. & Tel.
    Co., 
    792 F.2d 251
    , 257–58 (1st Cir. 1986)).
    In its written opinion, the district court explained
    its view that only the second factor weighed in Doe's favor.                 We
    - 15 -
    find no legal or clear factual error in that exercise of the
    district court's discretion.          Doe argues that Harvard Pilgrim
    failed to adhere to its previous "clear agreement" as to the scope
    of the administrative record, making it more culpable than the
    district court appreciated under the first factor, and that without
    a fee award Harvard Pilgrim will not be held accountable for its
    behavior.    Doe I, 904 F.3d at 7.           But Doe I concerned a fact-
    specific procedural issue that is unlikely to arise often, and
    Harvard Pilgrim's position on that issue, although ultimately
    unsuccessful,    was   reasonable    enough    to    convince      the   district
    court.   See id. at 6–9.     Doe also complains that the district court
    considered her subsequent loss in deciding whether to award fees
    for her interim gain.        But because the degree of success on the
    merits may be considered in deciding whether an award of fees is
    potentially available in the first place, Hardt, 560 U.S. at 245,
    we see no reason why the district court in its discretion cannot
    consider whether and to what extent an interim procedural victory
    actually    produced   any   benefits.       See    Gross,   763    F.3d   at   83
    (explaining that the Cotrill factors are not exclusive).
    III.
    This case is not an easy one.             Ascertaining coverage
    levels for mental illness can be challenging.           Doe was represented
    by skilled and knowledgeable counsel who helped her put her
    strongest case forward.       That case, though, failed to sway either
    - 16 -
    the independent OPP reviewer or the district judge who conducted
    yet another independent and de novo review.   Establishing clear
    error on appeal on such a record poses a difficult challenge for
    the same reasons that the coverage decision itself was difficult.
    Finding that Doe has not overcome that challenge, we affirm the
    district court's grant of summary judgment to the defendants and
    its denial of fees and costs to Doe.
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