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Cromwell v. Kaiser Foundation Health Plan

United States District Court, N.D. California

September 23, 2019

ASHLEY CROMWELL, Plaintiff,
v.
KAISER FOUNDATION HEALTH PLAN, Defendant.

          ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, AND DENYING PLAINTIFF’S MOTION FOR JUDGMENT DOCKET NOS. 42, 49

          EDWARD M. CHEN, United States District Judge.

         In this suit, Ashley Cromwell alleges that Kaiser Foundation Health Plan (“Kaiser”) violated ERISA. The action relates to health benefits for Ms. Cromwell’s daughter who has autism. Currently pending before the Court are two motions: (1) Kaiser’s motion for summary judgment pursuant to Rule 56 and (2) Ms. Cromwell’s motion for judgment pursuant to Federal Rule of Civil Procedure 52.[1]

         Having considered the parties’ briefs and accompanying submissions, as well as the oral argument of counsel, the Court hereby GRANTS Kaiser’s motion. Because the Court is granting Kaiser’s motion, Ms. Cromwell’s motion is DENIED.

         I. FACTUAL & PROCEDURAL BACKGROUND

         The following facts are undisputed by the parties.

         A. Ms. Cromwell’s Health Benefits Plan

         Covenant Care California, LLC (“Covenant Care”) sponsors a health benefits plan for its employees, including Ms. Cromwell. See Compl. ¶ 5. When a claim for health benefits is made under the plan, Kaiser administers and adjudicates the claim. In addition, Kaiser funds any benefits delivered under the plan. See Compl. ¶ 7. During the relevant period, Ms. Cromwell’s daughter, who has autism, was covered by the health benefits plan. See Compl. ¶ 5.

         There is an agreement between Covenant Care and Kaiser related to the health benefits plan. That agreement is titled “Group Agreement.” The Group Agreement is the plan document for the health benefits plan. The Group Agreement incorporates by reference several documents, including but limited to a document titled “Evidence of Coverage.”[2] See, e.g., Campins Decl., Ex. G (2017-2018 Group Agreement at 1) (providing that “[t]his Group Agreement (Agreement), including the Evidence of Coverage (EOC) document(s) listed below, the group application that Group submitted to Health Plan, and any amendments to any of them, all of which are incorporated into this Agreement by reference, constitute the contract between Kaiser Foundation Health Plan, Inc. (Health Plan) and COVENANT CARE CALIFORNIA, LLC (Group)”) (emphasis omitted); Campins Decl., Ex. H (2018-2019 Group Agreement at 5) (providing the same).

         Under the Group Agreement, Covenant Care delegated to Kaiser “the discretion to determine whether a Member is entitled to benefits under this Agreement. In making these determinations, Health Plan has discretionary authority to review claims in accord with the procedures contained in this Agreement and to construe this Agreement to determine whether the Member is entitled to benefits.” Campins Decl., Ex. G (2017-2018 Group Agreement at 6); Campins Decl., Ex. H (2018-19 Group Agreement at 10).

         B. Kaiser’s Change in Coverage

         There was a change in the health benefits plan starting on June 1, 2018. That change affected how much Ms. Cromwell had to pay for her daughter’s autism speech therapy. Prior to June 1, 2018, Ms. Cromwell paid $20 per visit for the speech therapy, without being subject to a plan deductible. Starting on June 1, 2018, Ms. Cromwell would have had to pay the full cost of the speech therapy up to the amount of the plan deductible ($2, 000), after which she would be charged $20 per visit.

         Kaiser informed Ms. Cromwell of the change on or about December 18, 2017. In its letter to Ms. Cromwell, Kaiser stated:

The new change affects how much members diagnosed with autism or pervasive developmental disorders will have to pay for physical, occupational, and speech therapy visits.
• How it currently works - Physical, occupational, and speech therapy visits are administered at a copay or coinsurance under your plan’s mental health benefits.
• When your plan renews in 2018 - These visits will be part of your plan’s standard physical, occupational, and speech therapy benefits. This means you’ll need to pay the full charges for physical, occupational, and speech therapy visits until you reach your deductible. Then you’ll start paying a copay or a coinsurance.

         Campins Decl., Ex. D (letter). Kaiser stated that the “change [was] being made” because, “[u]nder California Senate Bill 946, physical, occupational, and speech therapy aren’t considered mental health services. Consistent with this state law, these services are now covered under your plan’s standard physical, occupational, and speech therapy benefits.” Campins Decl., Ex. D.

         On or about April 5, 2018, Ms. Cromwell wrote to Kaiser, stating, inter alia, that she “strongly disagree[d] with Kaiser’s decision to reclassify speech therapy as a non-mental health service. . . . [Her daughter] has a diagnosis of autism, a mental health disorder. Speech therapy is a prescribed mental health treatment for her condition.” Campins Decl., Ex. E (letter).

         Kaiser responded to Ms. Cromwell on or about April 25, 2018. The response included the following statement:

I discussed your concern with the Regulatory Consultant of the Benefits Interpretation and Consulting Department. The Consultant explained that SB 946 outlines how Health Plans must cover behavioral health treatment. It includes information such as, but not limited to, maintaining an adequate network of Autism providers who may authorize and provide behavioral health treatment plans. It also defines autism providers. The Consultant continued that SB 946 does not indicate physical, occupational and speech therapy services as behavioral health treatments or mental health services.
As a result, the plan was updated to be consistent with the definitions of behavioral health providers outlined in SB 946. This means that speech therapy is now covered under the “Rehabilitative and Habilitative Services” benefit. Physical, occupational and speech therapy services are covered services for all members that have a medical need for such services, regardless of whether the member’s medical need is related to a physical condition or mental health condition. However, physical therapists, occupational therapists, and speech pathologists are not classified as mental health providers.

         Campins Decl., Ex. F (letter).

         On or about June 25, 2018, Ms. Cromwell wrote to Kaiser again, stating, inter alia, “I have read Senate Bill 946 and am unable to locate any language stating that speech therapy related to autism is not a behavior health treatment.” AR 94. Ms. Cromwell further stated: “[L]anguage contained in SB 946 supports speech therapy is intended to be covered as a behavioral health treatment for individuals diagnosed with autism.” AR 95 (emphasis in original).

         On or about July 25, 2018, Kaiser responded. The response included the following statement:

I confirmed that physical, occupational and speech therapy services are skilled care services that are covered when a plan provider determines medical[] necessity. These services will be covered under the “Rehabilitative and Habilitative Services” benefit.
Speech therapy services are covered under the same benefit for members with autism or members without autism having a wide range diagnosis. This change was mandated by state law (Senate Bill 946) and Kaiser Permanente became compliant on January 1, 2018.

         AR 113.

         C. Ms. Cromwell’s Grievance with the California ...


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