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Advocates Back Woman’s Harvard Pilgrim ERISA Appeal


Harvard Pilgrim Health Care had a duty under the Employee Retirement Income Security Act to seek readily available medical evidence from a young woman before denying her bid for mental health coverage, a pair of health advocates told the First Circuit in an amicus brief filed Tuesday.

The college student, identified in the suit only as Jane Doe, is seeking to reverse a federal court decision allowing HPHC to deny the months of inpatient psychiatric care she said she needed and that should’ve been covered under ERISA.

The amicus bid by United Policyholders, a nonprofit, and Health Law Advocates Inc., a Boston-based law firm dedicated to “health care justice,” focused on the responsibilities as ERISA fiduciaries of Harvard Pilgrim and the Harvard PPO plan of Massachusetts, collectively HPHC.

“The First Circuit has not decided head-on whether an ERISA fiduciary must help gather readily available additional information in deciding a claim for health plan benefits,” wrote Boston ERISA lawyer Jonathan M. Feigenbaum on behalf of both organizations. “But finding an affirmative duty imposed on an ERISA fiduciary is not a stretch of current law or the position of the secretary of labor.”

Feigenbaum pointed to Labor Department regulations suggesting the two sides should engage in a “non-adversarial dispute resolution process” to resolve benefit rows without turning to the courts.

“Simply, ERISA requires a fiduciary to investigate and to seek and to obtain readily available information necessary to decide a benefit claim,” Feigenbaum wrote.

Doe filed her complaint against HPHC in 2015, seeking to recoup the costs of a lengthy inpatient stay at a western Massachusetts psychiatric hospital from Feb. 13, 2013, through June 18, 2013. HPHC had only covered a portion of the stay. The college student struggled with schizoaffective disorder, post-traumatic stress disorder, anxiety, depression, personality disorder and a learning disorder, according to her suit, and experienced delusions and at least some suicidal tendencies.

Harvard Pilgrim, a not-for-profit health plan that runs Harvard Pilgrim Health Care Institute in collaboration with Harvard Medical School, has more than 3 million customers in New England and beyond, according to its website.

After cross motions for summary judgment, U.S. District Judge Denise J. Casper sided with HPHC, saying Doe had not met her burden that the stay at the hospital was medically necessary.

In rendering her decision, Judge Casper declined to consider evidence, including expert testimony, that had been admitted after the 2013 date on which Doe’s claim was denied. To consider the additional scope of evidence would run contrary to a practice of adjudicating an ERISA benefit-denial case on information other than the record before the plan administrator who made the original decision.

On appeal, Doe told the First Circuit this decision was a mistake on Judge Casper’s part, and the advocates agreed in their amicus.

“Expanding the claim record to include documents available and reviewed by a fiduciary furthers ERISA’s goal of encouraging pre-suit resolution of claims to the benefit of both parties,” Feigenbaum wrote. “In this instance, HPHC suggested an expanded review, filed a joint stipulation with Doe, and in fact HPHC’s medical director analyzed the additional information before denying Doe’s benefit claim again.

“Under the most fundamental notion of full and fair review,” the attorney continued, “the district court erred in not considering the medical evidence that was available, necessary and reviewed by HPHC before it rendered a final decision.”

HPHC has argued it made a final administrative decision in 2013. In addition to saying Judge Casper erred in allowing HPHC to terminate Doe’s residential treatment benefits, the appeal claims the actual final administrative decision did not occur until February 2016, after the federal lawsuit was filed. Anything in the administrative record until that date should have been, and was not, considered by Judge Casper in rendering her decision.

“Injecting a minimal level of prudence on ERISA fiduciaries to help gather records is not much to ask,” Feigenbaum said, agreeing with Doe. “This case presents the First Circuit with the opportunity to join the Fourth and Tenth circuits, which have recognized the duty of an ERISA fiduciary as claims decider to obtain and to consider readily available evidence necessary to fairly decide health benefit claims and other welfare-benefit claims arising under ERISA.”

Sarah E. Burns of Rosenfeld & Rafik PC, representing Doe, said Tuesday that assistance from insurers can go a long way during a difficult time for claimants.

“ERISA limits judicial review of benefit denials to the record created during the internal appeals process,” Burns said. “Most of the time, claimants are not represented by counsel, and do not appreciate the significance of the internal appeals process. Moreover, they are typically grappling with overwhelming health crises, and trust that their health insurer will obtain and review the relevant medical evidence supporting their need for services.”

Burns said HPHC did not help Doe get all of the information she needed, as is the case in most instances, the attorney added.

“It is our hope that the First Circuit will appreciate the lengths Ms. Doe went through to demonstrate the medical necessity of the care she received, by allowing the administrative record to include all the medical evidence presented and reviewed by the insurance company, not just the limited information generated by the insurance company itself in denying her claim initially.”

In April, the nonprofit National Alliance on Mental Illness filed its own amicus brief, tackling the issue of whether Doe’s treatment was medically necessary. Siding with Doe, NAMI said it sought to “educate” the First Circuit on the spectrum of care available in the mental health system and why the inpatient solution sought by the young woman was medically necessary, contrary to HPHC and Judge Casper’s findings.

Counsel for Harvard Pilgrim did not immediately respond to comment requests Tuesday afternoon.

Doe is represented by Sarah E. Burns and Mala M. Rafik of Rosenfeld & Rafik PC.

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