STEPHANIE C., Individually and as Guardian of M.G., Plaintiff, Appellant,
BLUE CROSS BLUE SHIELD OF MASSACHUSETTS HMO BLUE, INC., Defendant, Appellee.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS Hon. Denise J. Casper, U.S. District Judge.
S. King, with whom Brian S. King, PC and Jonathan M.
Feigenbaum were on brief, for appellant.
D. Halpern, with whom Law Office of Joseph Halpern and Donald
J. Savery were on brief, for appellee.
Barron, Circuit Judge, Souter, Associate Justice, [*] and Selya, Circuit
case, brought pursuant to the Employee Retirement Income
Security Act (ERISA), 29 U.S.C. § 1132(a)(1)(B),
plaintiff-appellant Stephanie C. (Stephanie) continues to
seek reimbursement for certain expenses connected with the
treatment of her teenage son, M.G. The plan administrator,
defendant-appellee Blue Cross Blue Shield of Massachusetts
HMO Blue, Inc. (BCBS), denied the portions of her claim that
are now in dispute. The district court, reviewing the denial
de novo, upheld BCBS's action. Stephanie appeals. After
careful consideration, we affirm.
dispute is no stranger to our court: it comes before us for a
second time. See Stephanie C. v. Blue Cross Blue
Shield of Mass. HMO Blue, Inc. (Stephanie
I), 813 F.3d 420 (1st Cir. 2016). Because there is no
need to repastinate ground already well-plowed, we begin by
reproducing our earlier summary of how the case arose.
Stephanie's son, M.G., is a derivative beneficiary of an
ERISA-regulated group health insurance plan (the Plan)
furnished by his father's employer, Harmonix Music
Systems, Inc. (Harmonix). The Plan is denominated as a
"Preferred Blue PPO Preferred Provider Plan, " the
terms of which are set out in a subscriber certificate (the
Certificate). In pertinent part, the Certificate makes clear
that coverage under the Plan remains subject to a
determination of medical necessity made by BCBS. It specifies
that the Plan covers treatment for psychiatric illnesses,
including biologically based conditions (e.g., autism) and,
for children until age nineteen, for non-biologically based
conditions (e.g., behavioral problems). Such benefits do not
accrue for residential, custodial, or medically unnecessary
services, such as those performed in "educational,
vocational, or recreational settings." The Certificate
also stipulates that only the least intensive type of setting
required for treatment of a condition will receive approval.
Any non-emergency inpatient course of treatment needs
approval before the patient is admitted to the facility.
. . . .
M.G. experienced a number of mental health issues beginning
in early childhood. . . .
M.G.'s condition intensified in severity in the summer of
2010 (the summer between his freshman and sophomore years in
high school). At that time, he became physically aggressive
toward his parents and attended weekly mental health therapy
sessions. Although enrolled in an intensive outpatient
educational facility, he continued to exhibit aggressive
behavior that led to multiple arrests. His problems escalated
because he steadfastly refused to take medications despite a
court order requiring him to do so.
Concerned about the apparent inadequacy of his care,
Stephanie enrolled M.G. (at her own expense and without prior
approval) in Vantage Point by Aspiro (Aspiro), a wilderness
therapy program based in Utah, which specializes in
neurodevelopmental disorders. M.G. remained at Aspiro from
October of 2010 to January of 2011. His psychological
evaluators there diagnosed him as having Asperger's
Syndrome, anxiety disorder, and attention deficit and
hyperactivity disorder. Noticing some improvement, they
recommended that he continue therapy in a longer-term
On the advice of a consultant and without prior approval,
Stephanie proceeded to enroll M.G. in Gateway Academy
(Gateway), a private school treatment center in Utah that
BCBS insists is "out of network" (that is, not in a
contractual relationship with BCBS). While at Gateway,
M.G.'s aggressive and emotionally erratic behavior
continued; among other things, he engaged in inappropriate
sexual contact and committed a variety of petty criminal
In April of 2011, Harmonix submitted claims to BCBS for three
sets of psychiatric evaluations and consultation services
(performed during the period from January 27, 2011 to
February 23, 2011) in connection with M.G.'s admission to
Gateway. In late June, BCBS informed Harmonix that Gateway
was a non-covered provider but that it would cover the three
sets of evaluations "as a one-time exception."
Gateway itself submitted claims in September of 2011 and
March of 2012 seeking reimbursement for principally
residential services rendered to M.G. dating back to January
In an informal process, BCBS denied these room and board
claims because the services were not medically necessary and
the submitted documentation did not support the need for an
inpatient admission. In an explanatory letter dated May 25,
2012, BCBS advised M.G.'s father that its denial of
benefits was based largely upon an evaluation conducted by
Dr. Elyce Kearns, a psychiatrist-reviewer, who relied upon
"InterQual, " a nationally recognized set of
criteria used to assess the level of care for mental health
patients. Given Dr. Kearns' evaluation, BCBS concluded
that M.G.'s "clinical condition does not meet the
medical necessity criteria required for an acute residential
About a year later, Stephanie requested and received a sheaf
of pertinent records from BCBS. She then contested the denial
of coverage through BCBS's internal review process. In
support of her appeal, Stephanie furnished documentation from
M.G.'s psychotherapists, evaluators, and educators in
addition to police reports and juvenile court records.
Collectively, these materials described M.G.'s
difficulties involving physical and verbal aggression,
emotional volatility, lack of impulse control, and thinking
errors. This pattern of conduct, Stephanie maintained, posed
a danger to M.G. and to others.
A second psychiatrist-reviewer, Dr. Kerim Munir, scrutinized
the administrative record and recommended that BCBS uphold
the denial of benefits. He cited the absence of any medical
necessity for the placement and reiterated the conclusions of
the first psychiatrist-reviewer. On June 19, 2013, BCBS
denied the internal appeal in a letter to Stephanie.
Id. at 423-25 (footnote omitted).
exhausted her administrative remedies, Stephanie sued BCBS in
an effort to recover the denied benefits. See 29
U.S.C. § 1132(a)(1)(B). The parties cross-moved for
summary judgment, and the district court entered judgment in
favor of BCBS. See Stephanie C. v. Blue
Cross Blue Shield of Mass. HMO Blue, Inc., No. 13-13250,
2015 WL 1443012, at *12 (D. Mass. Mar. 29, 2015). Stephanie
not reach the merits of Stephanie's appeal but, rather,
focused on a threshold issue, holding that the district court
erred in reviewing BCBS's denial of benefits for abuse of
discretion. See Stephanie I, 813 F.3d at 428-29. We
explained that the court should have reviewed the denial de
novo because the Certificate did not unambiguously confer
discretionary decisionmaking authority on the plan
administrator (BCBS). See id. (citing Firestone
Tire & Rubber Co. v. Bruch, 489
U.S. 101, 115 (1989) (holding that a denial of ERISA benefits
"is to be reviewed under a de novo standard
unless the benefit plan gives the administrator or fiduciary
discretionary authority to determine eligibility for benefits
or to construe the terms of the plan")). Consequently,
we vacated the district court's decision in relevant part
and remanded for reappraisal of the denial of benefits under
the appropriate standard of review. See id. at 429.
remand, the district court - this time exercising de novo
review - again entered judgment in favor of BCBS. See
Stephanie C.v.Blue Cross Blue Shield of
Mass. HMO Blue, Inc. (Stephanie II), No.
13-13250, 2016 WL ...