United States District Court, N.D. California
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT, AND DENYING PLAINTIFF’S MOTION FOR JUDGMENT
DOCKET NOS. 42, 49
M. CHEN, United States District Judge.
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
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.
FACTUAL & PROCEDURAL BACKGROUND
following facts are undisputed by the parties.
Ms. Cromwell’s Health Benefits Plan
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.
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.” 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).
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).
Kaiser’s Change in Coverage
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
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.
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.
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).
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
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.
Decl., Ex. F (letter).
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
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.
Ms. Cromwell’s Grievance with the California