Two decisions this week emphasize the importance of submitting treating physician and patient statements in support of an ERISA administrative appeal. For ERISA health cases involving medical necessity denials, an appeal which gets to the heart of why treatment was medically necessary is crucial and can actually determine the course of the lawsuit.
In Katherine P. v. Humana Health Plan, Inc., No. 19-50276, __F.3d__, 2020 WL 2479687 (5th Cir. May 14, 2020), the Fifth Circuit revived life into a claim by a young woman seeking mental health benefits for partial hospitalization treatment. Katherine received partial hospitalization treatment in 2012 for multiple mental health disorders including an eating disorder. Humana paid for the first 12 days of partial hospitalization treatment and then denied benefits, claiming such treatment was no longer medically necessary based on two Mihalik Criteria.
The Fifth Circuit found that judgment for Humana was improper because the administrative record showed a genuine dispute as to whether Katherine satisfied one of the Mihalik Criteria, ED.PM.4.2.
The ED.PM.4.2 criteria requires a patient show “[t]reatment at a less intense level of care has been unsuccessful in controlling” her eating disorder. The court found there is evidence that Katherine P. satisfied that requirement, pointing to the declarations submitted during the administrative appeal:
[I]n her last appeal to Humana, Katherine P. provided a declaration describing her history of failed treatment. In it, she listed past failed treatment regimens, including outpatient treatment. Her mother likewise provided a declaration making essentially the same point.
Furthermore, Katherine P.’s physicians said she was “unable to follow a weight gain meal plan and to abstain from symptoms of purging and restricting while she was at a lower level of care.”
Katherine P., 2020 WL 2479687, at *2. It is not overstating the matter to say at the declarations by Katherine, her mother, and her physician, revived life into the case. Consider if the declarations had not been submitted, the Fifth Circuit likely would have dismissed the appeal and the case is over.
Similarly, in Michael P. v. Blue Cross and Blue Shield of Texas, et al., No. 2:17-CV-00764, 2020 WL 2309584 (W.D. La. May 8, 2020), the district court specifically relied on statements by the treating psychiatrist and psychologist in support of a request for inpatient mental health treatment. Following two suicide attempts, Blue Cross approved 11 days of inpatient treatment for M.P. and then denied further benefits as not medically necessary.
The court found that Blue Cross was wrong and the evidence did not support a denial. The court specifically quoted a statement by M.P.’s psychiatrist submitted with the administrative appeal:
It is my opinion that [M.P.] needed this level of care in order to provide her with the safety and security to openly address her difficulties. Her profound depression was complicated by a serious substance abuse problem that increased the likelihood of a completed suicide. This very troubled young woman had significant mood problems that required a high level of structure and containment. In my opinion, this treatment was medically necessary to prevent future harm to her. In my opinion, her treatment was appropriate in terms of type, duration, and level of care.
Id. (emphasis added by the court). The court also cited M.P.’s psychologist who emphasized M.P.’s recent history of hospitalizations and suicide attempts, as well as her report of “minimal benefits from outpatient treatment.” Id.
These treating physician statements were decisive to the court overturning Blue Cross’s decision. The court found that the Blue Cross reviewers “seem to have seized upon any indication that M.P. did not have active suicidal ideations as signifying an end to the risk that had justified her admission” and such opinions were refuted by four points, including “her treating providers did not believe she could stop her cycle of suicidal and self-harming behavior without a longer stay” and “her treating psychiatrist believed that she posed an increased risk of completing suicide based on her history and comorbid substance use disorder.” Id. at *9.
Although treating physicians cannot testify in an ERISA trial, the physicians’ statements submitted in administrative appeals in these cases show that the physicians’ opinions can influence courts who are looking for exactly this type of evidence in weighing whether the insurance company’s decision was correct.
Kantor & Kantor’s healthcare coverage attorneys are passionate about helping patients obtain health benefits for a range of health conditions and particularly for mental health disorders such as eating disorders, bipolar disorder, and schizophrenia. For a free consultation, please call 888-569-6013 or use our online contact form. We understand, and we can help.