Demonchaux v. UnitedHealthcare Oxford

Full title: DOMINIQUE DEMONCHAUX, Plaintiff, v. UNITEDHEALTHCARE OXFORD and OXFORD…

Court: UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Date published: Dec 20, 2012

10 Civ. 4491 (DAB) (S.D.N.Y. Dec. 20, 2012)

Opinion

10 Civ. 4491 (DAB)

12-20-2012

DOMINIQUE DEMONCHAUX, Plaintiff, v. UNITEDHEALTHCARE OXFORD and OXFORD HEALTH PLANS (NY), INC., Defendants.

DEBORAH A. BATTS, United States District Judge.

MEMORANDUM AND ORDER

Plaintiff Dominique Demonchaux ("Plaintiff") brings this suit pursuant to the Employment Retirement Income Security Act, 29 U.S.C. § 1001 et seq. ("ERISA"), seeking to recover benefits from Defendant Oxford Health Plans (NY), Inc., individually and s/h/a Unitedhealthcare Oxford ("Oxford," "Defendant") for treatment for her anorexia nervosa that she received at Monte Nido Vista Residential Treatment Center (the "Center"). This matter is before the Court on Defendant's Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. In addition, Defendant has moved to strike several documents submitted by Plaintiff. For the reasons below, Defendant's Motion for Summary Judgment is DENIED and its Motion to Strike is GRANTED.

I. BACKGROUND

On June 29, 2009, Plaintiff was admitted to Monte Nido Vista Residential Treatment Center for treatment of anorexia nervosa, major depressive disorder, and other ailments. At that time, Plaintiff was a participant in Oxford Health Plans (NY), Inc., Freedom Plan Select (the "Plan"), which is an employee welfare benefit plan governed by ERISA. (Lippold Decl., Ex. A ("Plan Cert. of Ins."), 041.) A. Plaintiff's Treatment at Monte Nido Vista Residential Treatment Center

On June 29, 2009, Defendant verbally approved Plaintiff's admission to the Center. Her attending physician at the Center was Dr. Gary Schneider. At the time of her admission, Plaintiff weighed 96 pounds, which was 76% of her ideal body weight. The Center's initial treatment plan was to stabilize Plaintiff's mood, develop an eating plan, observe her for two hours after meals and snacks, monitor her vitals, have her sign a behavioral contract not to cut herself, help her develop coping skills, perform cognitive behavioral therapy/dialectical therapy, perform medical and psychiatric evaluations, and undergo medical laboratory work. (Lacroix Decl., Ex. C ("Admin. Record"), 183.) As of July 2, 2009, Plaintiff was on "constant [observation] during waking hours" and on close monitoring for self-harm. (Admin. Record, 184.)

On July 6, 2009, Defendant notified the Center that Dr. Ahluwalia, an Oxford Medical Director, requested a peer-to-peer review of Plaintiff's case. On July 7, 2009, Dr. Ahluwalia called Dr. Schneider who reported that Plaintiff weighed 98.2 pounds and remained on close monitoring for self-harm. Dr. Ahluwalia subsequently certified Plaintiff's treatment as Medically Necessary through July 12, 2009, and noted that a re-review of her case was scheduled for July 13, 2009. On July 13, 2009, Dr. Ahluwalia approved Plaintiff's treatment at the Center as Medically Necessary through July 19, 2009. Dr. Ahluwalia further certified Plaintiff's treatment at the Center as Medically Necessary through July 26, 2009, August 3, 2009, and August 6, 2009.

On August 7, 2009, Defendant called the Center and left a voicemail requesting an update of Plaintiff's medical status. The Parties disagree as to whether Defendant also requested a discharge plan for Plaintiff. Defendant claims that it requested a discharge plan, while Plaintiff notes that the file entry states the voicemail requested "updated sx's, meds, tx plan, progress towards discharge criteria, Current wt, outcome of medical consults, what goals does mbr need to meet for dc." (Admin. Record, 185.) The file entry also notes a request for a "d/c plan prior to 3pm." (Admin. Record, 186.)

Norah Wynne, the Assistant Clinical Director at the Center, returned Defendant's call on the afternoon of August 7, 2009 and left several voicemails conveying the following information about Plaintiff:

has been in RTF [Residential Treatment Facility] 40 days as of today, current wt 108 lbs, 5'5", has been gaining 3 lbs over last 3 weeks, current BMI is 17.9, 85% of IBW [Ideal Body Weight], very anxious, ct scan of abdomen requested due to ^ amylase, lipase & creatinine, ct scan results normal pancreas normal, GI consult today with dr schiffman, maintained on 2200-2500 cals per day, bp resting 102/59 p 69, having urges to binge and purge to rid herself of anxiety, hopeless, mood depressed, c/o abdominal pain after eating . . . concerned with maintaining her current wt with less restrictions, admits to staff that she will throw away food when not supervised

(Admin. Record, 186.) Upon receipt of this information, Dr. Ahluwalia certified Plaintiff's treatment at the Center as Medically Necessary through August 9, 2009 and scheduled a peer review of the case for August 10, 2009. (Def. 56.1 Stmt. ¶ 64.) The last entry in Plaintiff's file for August 7, 2009 notes "mbr continues to meet inpt criteria, tx plan is appropriate for the members presentation, recommended continue with inpt certs & P2P on 8/10/09 between 1:30 & 3:30 pm." (Admin. Record, 186.)¹

1 Quotes throughout from the medical record are verbatim.

The Parties dispute what took place on August 10, 2009. Defendant alleges that Dr. Ahluwalia noted that the Center's physician had not called for the peer-to-peer review and that based on her prior medical record review, Plaintiff's inpatient treatment was certified for transition to an outpatient treatment setting. (Def. 56.1 Stmt. ¶ 66.) Defendant alleges that Dr. Ahluwalia opined that Plaintiff was not clearly presenting signs or symptoms that required 24-hour monitoring and that her ongoing treatment needs could be addressed in an intensive outpatient program. Therefore, Defendant alleges, Dr. Ahluwalia opined that further inpatient treatment at the Center was not Medically Necessary. (Def. 56.1 Stmt. ¶ 67.) Defendant alleges that it advised Plaintiff by letter dated August 10, 2009 that her request for continuing inpatient benefits was denied as not Medically Necessary as of August 10, 2009. (Def. 56.1 Stmt. ¶ 68.)

Plaintiff does not dispute that no peer review of her case took place on August 10, 2009. Nor does Plaintiff contest that Dr. Ahluwalia's Clinical Note entry in Plaintiff's file for 4:09 pm on August 10, 2009 states: "no call frommd—based on last reviiew days were certed for transition,Member is currently not clearly presenting s/s that requires 24 hrs monitering—tt can continue in php/iop loc." (Admin. Record, 186.) Plaintiff contends that it was not the Center's responsibility to call Dr. Ahluwalia for the review because Dr. Ahluwalia had initiated all previous peer review calls. (Pl. Resp. to Def. 56.1 stmt. ¶ 66; Admin. Record, 318.) Plaintiff further asserts that there is no evidence to show that days were "certed for transition" at the last review, nor that Dr. Ahluwalia reviewed any medical records on August 10, 2009. (Pl. Resp. to Def. 56.1 Stmt. ¶ 66.) Plaintiff notes that the peer review did not take place on that date and no new information was provided to Defendant regarding her medical status.

Plaintiff did not receive Defendant's denial letter dated August 10, 2009 because it was sent by regular mail to her house in Connecticut while she was still at the Center. (Pl. Resp. to Def. 56.1 Stmt. ¶ 71.) The denial letter explained Plaintiff's right to reconsideration as follows:

In the event that Oxford renders an adverse medical necessity determination on a preservice or concurrent basis without first attempting to discuss the decision with the Member's provider who specifically recommended the health care service, the provider will have the opportunity to request a reconsideration of the adverse determination . . . [T]he reconsideration will take place within one business day of receipt of the request . . . In the event that the adverse determination is upheld after reconsideration, Oxford will issue another adverse determination letter.

(Scott Decl., Ex. D ("Admin. Record"), 297.) The Center learned of the denial of Plaintiff's treatment on August 12, 2009 when it called Defendant. Defendant informed the Center that the time for reconsideration of the denial had expired, and instead directed the Center to Defendant's expedited appeals process. (Def. 56.1 Stmt. ¶¶ 73-76; Pl. Resp. to Def. 56.1 Stmt. ¶ 72.)

On August 13, 2009, the Center's Dr. Schneider conducted a review of Plaintiff's case with Dr. Ahluwalia, and informed her that Plaintiff needed continued treatment at the Center and might be ready for passes to leave the Center the following week. (Admin. Record, 187.) Dr. Schneider also informed Dr. Ahluwalia of an incident on August 7, 2009 where Plaintiff had engaged in self-harm by intentionally scratching herself with a hair clip and her finger nails on the way to a gastrointestinal consultation; Plaintiff had subsequently been put on safety watch and had not had another cutting incident in the interim. (Def. 56.1 Stmt. ¶ 79; Pl. Resp. to Def. 56.1 Stmt. ¶ 79; Admin. Record, 187, 327, 348.)

By letter dated August 13, 2009, the Center requested an expedited appeal of Defendant's adverse medical necessity determination for Plaintiff's treatment at the Center. The Center submitted the following information in support of Plaintiff's expedited appeal: a psychiatric note dated August 12, 2009; a laboratory test dated August 12, 2009; the Center's weekly update dated August 13, 2009; a client incident report dated August 7, 2009 concerning the arm-scratching self-harm; an outside treatment assessment form dated August 7, 2009; findings of an August 4, 2009 pelvic CT scan; vital records from July/August 2009; weight records as of August 10, 2009; clinical progress notes; staff communication notes; and an "Official No Harm Contract" signed August 7, 2009. (Def. 56.1 Stmt. ¶ 87; Pl. Resp. to Def. 56.1 Stmt. ¶ 87.)

Defendant received the Center's appeal of Plaintiff's adverse determination on August 14, 2009 at 2:13 PM. (Admin. Record, 179.) Defendant referred the case to Dr. Polsky of Prest & Associates and requested that he complete an independent clinical peer review of Plaintiff's case by 4:00 PM EST. (Admin. Record, 312.) At 2:55 PM CDT, five minutes before his review was due back to Defendant, Dr. Polsky called Dr. Schneider (Admin. Record, 313). In addition to speaking with Dr. Schneider, Dr. Polsky reviewed Plaintiff's chart from the Center and evaluated the case under the Level of Care Guidelines for Inpatient Treatment. (Def. 56.1 Stmt. ¶ 153; Pl. Resp. to Def. 56.1 Stmt. ¶ 153.) Dr. Polsky concluded that Plaintiff did not meet the criteria for continued inpatient stay as of August 10, 2009. The same day, Oxford Medical Director Dr. G. Wilder also upheld the denial of further inpatient treatment at the Center as not Medically Necessary. (Admin. Record, 179.) This determination was made at 6:35 PM EST, just over three hours after Defendant received the initial appeal from the Center. (Id.)

The Parties dispute the use of the Level of Care criteria for "Inpatient Treatment" as the correct criteria under which Defendant should have reviewed Plaintiff's case. They dispute whether Plaintiff was receiving "inpatient" or "residential" treatment at the Center. The Administrative Record in Plaintiff's case refers to her level of care as both "inpatient" and "residential" in different entries:

- "INPATIENT REVIEW INFORMATION" (181);

- "mh rtc" (184);

- "mbr continues to meet inpt criteria" (184);

- "mbr continues to meet inpt criteria" (185);

- "has been in RTF 40 days" (186);

- "mbr continues to meet inpt criteria . . . continue with inpt certs" (186);

- "authd mh rtc" (193);

- Level of Certification "Subacute" (195);

- "mental health residential tx" (196);

- "inpt mental health" (197).

Plaintiff contends that because Plaintiff was in "residential treatment," the United Behavioral Health Level of Care criteria for "Residential Treatment" should have been used to evaluate her case. (Pl. Resp. to Def. 56.1 Stmt. 28, 29, 30, 39, 50, 51, 55, 57, 64, 84, 153, 159, 162, 163.) The Plan does not provide separate benefits for "residential treatment" and covers treatment of "Biologically Based Mental Illnesses" on an "inpatient, partial hospitalization or outpatient basis" only. (Plan Cert. of Ins., 097.)

On September 2, 2009, Plaintiff was discharged from the Center. (Admin. Record, 181.) Plaintiff alleges that she left treatment at that time because her insurance benefits had been terminated. (Pl. Resp. to Def. 56.1 Stmt. ¶ 167.) In this action. Plaintiff seeks benefits for the additional days she stayed at the Center, from August 9, 2009 through September 1, 2009. She also seeks all costs and attorney's fees incurred and payment of interest allowed under ERISA. (Def. 56.1 Stmt. ¶ 168; Pl. Resp. to Def. 56.1 Stmt. ¶ 168.) B. The Oxford Health Plan

The Plan covers "diagnosis and treatment of Biologically Based Mental Illnesses for adults and children received on an inpatient, partial hospitalization or outpatient basis." (Plan Cert. of Ins., 097.) The Plan defines "Biologically Based Mental Illnesses" to include major depression, bulimia and anorexia. (Id.) The Plan does not cover services that are not "Medically Necessary." (Plan Cert. of Ins., 072.) "Medically Necessary" is defined by the Plan as follows:

Services or supplies as provided by a Hospital, Skilled Nursing Facility, Physician or other provider required to identify or treat your illness or injury and which, as determined by Our Medical Director, are:

1. Consistent with the symptoms or diagnosis and treatment of your condition;
2. Appropriate with regard to standards of good medical practice;
3. Not solely for your convenience or that of any provider; and
4. The most appropriate supply or level of service which can safely be provided. For inpatient services, it further means that your condition cannot safely be diagnosed or treated on an outpatient basis.

(Plan Cert. of Ins., 086.) The Plan provides that "[a]ll services are subject to review by Us [Defendant] to determine the Medical Necessity of proposed services, services currently being provided, or services already provided. Denials will be made by the appropriate clinical personnel." (Plan Cert. of Ins., 028.) The Plan grants discretionary authority to Defendant:

In carrying out their respective responsibilities under the Plan, the Plan Administrator and other Plan fiduciaries shall have discretionary authority to interpret the terms of the Plan and to determine eligibility for an entitlement to Plan benefits in accordance with the terms of the Plan. Any interpretation or determination made pursuant to such discretionary authority shall be given full force and effect, unless it can be shown that the interpretation or determination was arbitrary and capricious.

(Plan Cert of Ins., 041.) The Plan further notes that:

In the event that We render an Adverse Determination without attempting to discuss the matter with the Provider who specifically recommended the Health Care Service, procedure or treatment under review, the Provider will have the opportunity to request a reconsideration of the Adverse Determination. . . . [T]he reconsideration will occur within one business day of receipt of the request . . . . Nothing in this section will preclude you from initiating an Appeal of an Adverse Determination.

(Plan Cert. of Ins., 029.)

II. DISCUSSION

A. Summary Judgment Standard

A district court should grant summary judgment when there is "no genuine dispute as to any material fact," and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); see also Hermes Int'l v. Lederer de Paris Fifth Ave., Inc., 219 F.3d 104, 107 (2d Cir. 2000). "Only when no reasonable trier of fact could find in favor of the nonmoving party should summary judgment be granted." James v. New York Racing Ass'n, 233 F.3d 149, 152 (2d Cir. 2000). While a court must always "resolve ambiguities and draw reasonable inferences against the moving party," Knight v. U.S. Fire Ins. Co., 278 F.3d 93, 101 (2d Cir. 2002), "mere speculation and conjecture is insufficient to preclude the granting of the motion." Guilbert v. Gardner, 480 F.3d 140, 145 (2d Cir. 2007). Instead, when the moving party has documented particular facts in the record, "the opposing party must 'set forth specific facts showing that there is a genuine issue for trial.'" Zelnik v. Fashion Inst. of Tech., 464 F.3d 217, 224 (2d Cir. 2006) (quoting Fed. R. Civ. P. 56(e)). Establishing such facts requires going beyond the allegations of the pleadings, as the moment has arrived "to put up or shut up." Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000). Unsupported allegations in the pleadings thus cannot create a material issue of fact. Id. B. Standard of Review

"Although generally an administrator's decision to deny benefits is reviewed de novo, where, as here, written plan documents confer upon a plan administrator the discretionary authority to determine eligibility, [the Court] will not disturb the administrator's ultimate conclusion unless it is arbitrary and capricious." Hobson v. Metro Life Ins. Co., 574 F.3d 75, 82 (2d Cir. 2009) (internal quotation marks omitted). "[A] court may overturn a plan administrator's decision to deny benefits only if the decision was without reason, unsupported by substantial evidence or erroneous as a matter of law." Durakovic v. Bldg. Svcs. 32 BJ Pension Fund, 609 F.3d 133, 141 (2d Cir. 2010) (internal quotation marks omitted). Substantial evidence is "such evidence that a reasonable mind might accept as adequate to support the conclusion reached by the [Plan Administrator] . . . and requires more than a scintilla but less than a preponderance." Id. (internal quotation marks omitted). In reviewing a plan administrator's decision for arbitrariness and capriciousness, the Court is "not free to substitute [its] own judgment for that of the insurer as if it were considering the issue of eligibility anew." Hobson, 574 F.3d at 83-84. However, the Court still must consider "whether the decision was based on a consideration of the relevant factors." Miller v. United Welfare Fund, 72 F.3d 1066, 1072 (2d Cir. 1995). "In determining whether relevant factors were considered and substantial evidence relied upon in an ERISA eligibility determination, courts are limited to the reasons given at the time of the denial." Diamond v. Reliance Standard Life Ins., 672 F. Supp. 2d 530, 535 (S.D.N.Y. 2009) (internal quotation marks omitted).

Here, the Plan clearly grants Defendant "discretionary authority to interpret the terms of the Plan and to determine eligibility for an entitlement to Plan benefits in accordance with the terms of the Plan." (Plan Cert. of Ins., 041.) Plaintiff argues that this Court should nevertheless conduct a de novo review because Defendant allegedly failed to exercise its discretion properly. Plaintiff asserts that Defendant first denied Plaintiff's treatment because a telephone call had not been initiated by Plaintiff's treating physician and this does not amount to an exercise of discretionary authority. Plaintiff's argument misses the mark. The question is not whether the Plan Administrator properly exercised its discretion, but whether the Plan delegates, by its written terms, the discretionary authority to determine eligibility to the Administrator. Hobson, 574 F.3d at 82. Here, the Oxford Plan clearly delegates to Defendant the authority "to determine eligibility for an entitlement to Plan benefits in accordance with the terms of the Plan." (Plan Cert. of Ins., 041.) Accordingly, this Court may only reverse Defendant's decision if it is found to be arbitrary and capricious.

Nonetheless, a plan such as Defendant's, "under which an administrator both evaluates and pays benefits claims[,] creates the kind of conflict of interest that courts must take into account and weigh as a factor in determining whether there was an abuse of discretion." Hobson, 574 F.3d at 82-83. "The weight properly accorded [this conflict of interest] varies in direct proportion to the likelihood that the conflict affected the benefits decision." Durakovic, 609 F.3d at 139 (internal quotation marks omitted). "Evidence that a conflict affected a decision may be categorical (such as a history of biased claims administration) or case specific (such as an administrator's deceptive or unreasonable conduct), and may have bearing also on whether a particular decision is arbitrary and capricious." Id. at 140. "No weight is given to a conflict in the absence of any evidence that the conflict actually affected the administrator's decision." Id.

Plaintiff has provided a good deal of case-specific evidence suggesting that Defendant's conflict of interest actually affected its decision to deny Plaintiff's request for coverage of continued inpatient treatment. Defendant repeatedly engaged in unreasonable conduct. The Administrative Record shows that Defendant found the exact same body of evidence to be sufficient to certify Plaintiff's continued inpatient care on August 7, 2009, and insufficient three days later. (Admin. Record, 186.) Equally unreasonably, Defendant upheld its denial after the Center provided new information on August 13 suggesting that on August 10 Defendant was, at best, the same as, and more likely, medically worse than Defendant had believed her to be when it certified her for inpatient treatment on August 7. While Dr. Polsky justified Defendant's decision by remarking, on August 14, that Plaintiff's weight had increased from 95 pounds on June 29 to 107.6 pounds on August 10 (Admin. Record, 314), Plaintiff weighed 108 pounds when Defendant certified her for inpatient treatment on August 7. (Admin. Record, 186; see also Admin. Record, 338 (showing that between August 3 and August 10, Plaintiff's weight decreased from 108 pounds to 107.6 pounds).) On August 7, Defendant believed that Plaintiff's last incident of cutting occurred on July 2 (Admin. Record, 184.); on August 13, Defendant learned that on August 7, Plaintiff had another incident of self-injurious cutting. (Admin. Record, 321, 330.) Defendant attempts to diminish the significance of Plaintiff's cutting incident by alleging that the incident was related to Plaintiff's new medication and stating that Plaintiff reported feeling "relief and a diminished desire to self-harm" on August 8 and August 9. (Def. Mem. in Supp. of Mot. for Summ. J., 8, 18.) This interpretation of the Record is incredible. Plaintiff's doctor discontinued the new medication following the cutting incident, but nowhere in the Administrative Record did he, Dr. Polsky, or Defendant identify a causal connection between the medication and the scratching. (Admin. Record, 321.) The "relief and . . . diminished desire to self-harm" to which Defendant apparently refers occurred in the immediate aftermath of a particular therapy session at the Center, when Plaintiff participated in a psychotherapeutic technique with a Center employee. (Admin. Record, 327.) However, on August 8, Plaintiff reported to a therapist that she had "strong urges to self harm." (Admin. Record, 340.) The therapist noted that "[w]hen [Plaintiff] was talking about cutting she sounded somewhat euphoric by saying over and over 'it feels so good' and 'nothing feels as good as cutting.'" (Id.) On August 9, Plaintiff told a therapist that "she doesn't think she will be able to not cut next time she gets the urge to. . . . [A]ll she thinks about in the moment is the 'good feeling' it gives her." (Admin. Record, 311.) The evidence strongly suggests that Plaintiff's medical condition had deteriorated between August 7 and August 10; even putting the most positive spin on the cutting incident and Plaintiff's weight loss, no reasonable person could find that Plaintiff's medical condition had improved between those dates.

Nor does the remainder of the Administrative Record provide a reasonable basis for Defendant to have found inpatient treatment to be "Medically Necessary" as of August 7 but not "Medically Necessary" as of August 10. Defendant and Dr. Polsky cited the fact that Plaintiff was not suicidal, homicidal, manic, or psychotic as a basis for the August 10 denial (Admin. Record, 301, 314), but nothing in the Administrative Record suggests that Plaintiff was any more suicidal, homicidal, manic, or psychotic on August 7. In fact, Dr. Polsky noted that Plaintiff "ha[d] not been manic or psychotic" at any point during her inpatient treatment, and the Center's August 13 weekly update stated that Plaintiff "can't make the thoughts of harming herself and others stop." (Admin. Record, 314, 327.) Dr. Polsky also noted that Plaintiff's vital signs showed that she was biomedically stable, a fact that both he and Defendant pointed to as justifying the denial. (Admin. Record, 301, 314.) However, the slight changes in Plaintiff's vital signs between August 7 and August 10 do not provide reasonable justification for Defendant's certification and subsequent decertification of Plaintiff's inpatient stay. Although Plaintiff's August 7 blood pressure of 102/59 mm/Hg was just outside the normal vital sign range of 90/60 mm/Hg to 120/80 mm/Hg, her August 10 blood pressure of 92/67 mm/Hg was only slightly improved; any improvement was not long-lasting, as the Record shows that Plaintiff's blood pressure was even farther outside the normal vital sign range on August 12 than it had been on August 7. (Admin. Record, 336-37; see U.S. Nat'l Library of Medicine, Nat'l Inst. of Health, Vital Signs (Feb. 20, 2011), http://www.nlm.nih.gov/medlineplus/ency/article/002341.htm. At all times, Plaintiff's pulse was within the normal vital sign range. (Id.)

One final piece of information further suggests that Defendant's conflict of interest actually affected its decision to deny Plaintiff's claim: Defendant ignored its own policy when it denied Plaintiff the opportunity for reconsideration of the adverse determination. (Admin. Record, 186, 297.) See Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 118 (2008) (noting that procedurally unreasonable behavior "justifie[s] the court in giving more weight to the conflict" of interest). The Oxford Health Plan states,

In the event that We render an Adverse Determination without attempting to discuss the matter with the Provider who specifically recommended the Health Care Service, procedure or treatment under review,² the Provider will have the opportunity to request a reconsideration of the Adverse Determination. . . . [T]he reconsideration will occur within one business day of receipt of the request . . . . Nothing in this section will preclude you from initiating an Appeal of an Adverse Determination."

(Plan Cert. of Ins., 029.) In a letter to Plaintiff, Defendant further described Plaintiff's "right to seek reconsideration" by noting that "[i]n the event that the adverse determination is upheld after reconsideration, Oxford will issue another adverse determination letter." (Admin. Record, 297.) However, Defendant admits that it told the Center on August 12 that "once a denial is issued there is nothing that can be done except appeal." (Admin. Record, 186.) The next day, Defendant again told someone at the Center, "once a denial is issued . . . the process is to go through appeals;" when the Center representative protested, Defendant reiterated that an appeal was the only means by which the denial could be reversed. (Admin. Record, 187.) These statements directly contradicted Defendant's written policy, and effectively stripped Plaintiff of the opportunity to have the denial reconsidered, Defendant did not reconsider the adverse determination or issue an additional adverse determination letter. Instead, it ignored its own policy and referred the Center to the Appeals Department. (Admin. Record, 186.)

2 As discussed supra, the Parties dispute whose responsibility it was to initiate the telephonic peer review of Plaintiff's case on August 10. All previous peer reviews had been initiated by Defendant. It is not clear whether, under Defendant's policy, a peer review on August 10 would have constituted an "attempt to discuss the decision" with the Center had it taken place. However, even if Dr. Ahluwalia expected the Center to call her for the peer review, waiting for a phone call without ever dialing the Center's number is not an "attempt." --------

In sum, Plaintiff has provided a good deal of evidence that Defendant's conflict of interest actually affected its decision to decertify her inpatient care. Accordingly, the Court will give appropriate weight to Defendant's conflict of interest when determining whether its decision was arbitrary and capricious. See Durakovic, 609 F.3d at 139, 142. C. Defendant's Motion for Summary Judgment

Plaintiff argues that her treatment for anorexia nervosa at the Center was Medically Necessary from August 10, 2009 through September 1, 2009. She asserts that during that period, she continually needed supervision to prevent food restriction, purging, and self-harm; was preoccupied with intrusive thoughts; was at times suicidal; and had medical complications and environmental stresses. Plaintiff argues that the denial of her continued treatment as of August 10, 2009 was arbitrary and capricious because it occurred following one missed peer review and considered no new information about her medical status. She alleges further that she was being treated at the Center at a Residential Treatment Level of Care, and points to numerous Dlaces in the record where her treatment is referred to as "residential" in some form or another. (See, e.g., Admin. Record, 184, 186, 193, 196.) Plaintiff alleges that the application of the criteria for Inpatient Treatment Level of Care to the review of her case was erroneous, and that the denial of her treatment on the basis of those criteria was arbitrary and capricious.

Defendant counters that as of August 10, 2009 Plaintiff could be "safely treated in an intensive outpatient disorder program setting" and that continued inpatient treatment was therefore not Medically Necessary under the terms of the Plan. (Admin. Record, 301.) It argues that the decision was correctly made with reference to the Inpatient Treatment Level of Care Guidelines, because the Plan covers only "inpatient, partial hospitalization or outpatient" care. Defendant contends that the decision to terminate Plaintiff's inpatient benefits was made following a meaningful review of her medical record by Dr. Ahluwalia and that the reasons for concluding that outpatient treatment was more appropriate were supported by ample evidence in the Administrative Record.

As an initial matter, the Court notes that while the Parties vehemently dispute the level of care that Plaintiff was receiving at the Center, this dispute is not material to the matter before the Court. Under the clear and unambiguous Plan terms, treatment for "anorexia" and "major depression" is covered under the section of the Plan for "Biologically Based Mental Illnesses." (Plan Cert. of Ins., 097.) Under the Plan, only treatment of these illnesses on an "inpatient, partial hospitalization, or outpatient basis" is covered. (Id.) While Plaintiff's medical records appear to use the terms "residential" and "inpatient" interchangeably to describe her care at the Center, the Plan does not provide benefits for "residential treatment."

The issue before the Court, therefore, is whether Defendant's denial of benefits on the grounds that further inpatient treatment was not Medically Necessary as of August 10, 2009 was arbitrary and capricious. The Court will "overturn a plan administrator's decision to deny benefits only if the decision was without reason, unsupported by substantial evidence or erroneous as a matter of law." Durakovic, 609 F.3d at 141. This determination of whether the decision was arbitrary and capricious must give "appropriate weight to the . . . conflict [of interest]" discussed supra. Id. at 142. Giving appropriate deference to Defendant's decision here, the Court finds that the decision was without reason and unsupported by substantial evidence, and was therefore arbitrary and capricious.

With regard to Defendant's initial denial on August 10, 2009, the Parties do not dispute that on August 7, 2009, Defendant certified Plaintiff's continued treatment at the Center through August 9, 2009. The August 7 entry in Defendant's medical file on Plaintiff reads as follows:

has been in RTF [Residential Treatment Facility] 40 days as of today, current wt 108 lbs, 5'5", has been gaining 3 lbs over last 3 weeks, current BMI is 17.9, 85% of IBW [Ideal Body Weight], very anxious, ct scan of abdomen requested due to ^ amylase, lipase & creatinine, ct scan results normal pancreas normal, GI consult today with dr schiffman, maintained on 2200-2500 cals per day, bp resting 102/59 p 69, having urges to binge and purge to rid herself of anxiety, hopeless, mood depressed, c/o abdominal pain after eating . . . concerned with maintaining her current wt with less restrictions, admits to staff that she will throw away food when not supervised

(Admin. Record, 186.) Three days later, having received no additional information regarding Plaintiff's condition, Defendant determined that Plaintiff's treatment at the Center was no longer Medically Necessary.

Defendant points to numerous pieces of evidence in the record to support its decision that treatment was no longer Medically Necessary: the only time Defendant was notified that Plaintiff binged and purged and had suicidal ideations was July 2, 2009 (Admin. Record, 184); Plaintiff was then placed on constant observation during waking hours (id.); the Center notified Defendant that Plaintiff was gaining weight by July 7, 2009 and that she was eating 100% of her meals by July 13, 2009, with no further incidents of binging/purging or self-harm (id.); as of August 10, 2009 Plaintiff had gained ten pounds since her admission and no longer expressed suicidal thoughts. (Admin. Record, 185.)

However, Defendant was aware of all this evidence when it certified Plaintiff's continued treatment on August 7, 2009; indeed, the evidence Defendant considered when approving Plaintiff's request on August 7 and denying it on August 10 was exactly the same. Because no additional evidence supported Defendant's reversal of course, the denial was without reason, by definition without substantial evidence, and therefore arbitrary and capricious. See Levitian v. Sun Life & Health Ins. Co., Nos. 11-2063-cv, 11-2239-cv, 2012 WL 2299302, at *3 (2d Cir. June 19, 2012) (finding that Defendant's decision was arbitrary and capricious where only difference in Plaintiff's record between initial approval and subsequent denial failed to provide evidence to justify the denial); Diamond v. Reliance Standard Life Ins., 672 F. Supp. 2d 530, 535-36 (S.D.N.Y. 2009) (noting that a plan administrator's "revers[al of] its initial decision to award benefits despite not receiving any new medical information" weighs towards a determination that the administrator abused its discretion in denying a claimant's claim for benefits under the ERISA plan); Smith v. Novelis, No. 05 Civ. 957, 2009 WL 3164798 (N.D.N.Y. Sept. 29, 2009) ("[W]hen there has been no change in the relevant plan or policy, under which Plaintiff was deemed 'totally disabled' . . . [any effort to] terminat[e] his benefits based on the exact same evidence and standard as before smacks of arbitrary conduct.").

Defendant's decision to uphold its denial on appeal was also without reason or substantial evidence. Defendant based its denial on evidence Defendant had when it approved Plaintiff's claim. As discussed supra Part II.B, the new evidence Defendant considered on appeal did not provide substantial support for a reversal of Defendant's August 7 decision; indeed, it suggested that by August 10, Plaintiff's medical condition was worse than Defendant had thought when it certified her inpatient care. The new evidence showed that Plaintiff had engaged in self-injurious cutting for the first time since July 2, and that she now weighed 0.4 pounds less than Defendant had believed her to weigh when it approved her treatment. (Admin. Rec., 184, 321, 330, 338.) Because "the only substantive change in [Plaintiff's] case between the approval of benefits and the subsequent denial of benefits" "d[id] not provide any evidence, let alone any substantial evidence, to justify" the denial of benefits, Defendant's upholding of its denial on appeal was arbitrary and capricious. Levitian, 2012 WL 2299302, at *3.

The arbitrary and capricious nature of Defendant's decision is further suggested by the procedural irregularities in the adjudication of Plaintiff's claim. As mentioned supra Part II.B, Defendant ignored its own policy when it denied Plaintiff the opportunity to have the initial determination reconsidered. "[W]here the administrator . . . interprets the plan in a manner inconsistent with its plain words, its actions may well be found to be arbitrary and capricious." McCauley, 551 F.3d at 133; see also Doe v. MAMSI Life and Health Ins. Co., 471 F. Supp. 2d 139, 148 (D.D.C. 2007) ("To ignore, misapply, or inconsistently apply its own criteria would, almost by definition, be arbitrary and capricious.") (citing WHX Corp. v. SEC, 362 F.3d 854, 859 (D.C. Cir. 2004)).

Giving appropriate weight to Defendant's conflict of interest, this Court finds the denial of Plaintiff's claim to be arbitrary and capricious. Defendant's Motion for Summary Judgment is therefore DENIED. D. Remand to Administrator

Typically in ERISA cases, if a court finds that a plan administrator's decision was arbitrary and capricious, "the case must be remanded to the [Plan Administrator] with instructions to consider additional evidence unless no new evidence could produce a reasonable conclusxon permitting denial of the claim or remand would otherwise be a useless formality." Pepe v. Newspaper & Mail Deliverers'-Publishers' Pension Fund, 559 F.3d 140, 149 (2d Cir. 2009) (internal quotation marks omitted).

The Court cannot conclude that "no new evidence could produce a reasonable conclusion permitting denial of the claim" or that "remand would otherwise be a useless formality." Id. The burden of proving the medical necessity of Plaintiff's inpatient care remains with Plaintiff. Miller, 72 F.3d at 1074. Plaintiff has not met this burden. The administrative record contains no evidence as to the medical necessity of Plaintiff's inpatient treatment after August 14, 2009. Nor does the evidence Plaintiff submitted between August 10 and August 14 prove that her inpatient treatment during that time met the Plan's definition of Medically Necessary. Therefore, the Court remands this case to the Administrator for further proceedings and collection of evidence. E. Plaintiff's Request for Summary Judgment

Plaintiff has chosen not to move for Summary Judgment in this case. Instead, her Opposition brief requests that the Court sua sponte enter Judgment in favor of Plaintiff on all Causes of Action in the Complaint. "[D]istrict courts have the discretion to grant summary judgment sua sponte, even without notice in certain circumstances." Priestley v. Headminder, Inc., 647 F.3d 497, 504 (2d Cir. 2011)(quoting Schwan-Stabilo Cosmetics GmbH & Co. v. Pacificlink Int'l Corp., 401 F.3d 28, 33 (2d Cir. 2005)), However, the Second Circuit has "firmly discouraged the practice" of sua sponte grants of summary judgment. Bridgeway Corp. v. Citibank, 201 F.3d 134, 139 (2d Cir. 2000). In this instance, the Court declines to exercise its discretion to grant summary judgment sua sponte. See, e.g., Akers v. United States, No. 3:10 Civ. 1719 (JBA), 2012 WL 5406970, at *5 (denying non-moving Party's request for summary judgment sua sponte) (D. Conn. Aug. 1, 2012); U.S. Banknote Corp. v. De La Rue AG, No. 94 Civ. 9210 (MGC), 1997 WL 580710, at *1 n.1 (S.D.N.Y. Sept. 18, 1997) (same). Plaintiff's request is denied. F. Defendant's Motion to Strike

As a final matter, on November 9, 2011, Defendant moved to strike several documents submitted by Plaintiff with her Opposition to Defendant's Motion for Summary Judgment. Specifically, Defendant moved to strike additional medical treatment notes, various online internet source materials, treatment guidelines, and a Declaration from Gary Schneider, D.O., Plaintiff's attending physician at the Center. None of these materials were submitted to Defendant during its review of Plaintiff's claim for continuing benefits under the Plan either at the initial review stage or on appeal. Defendant argues that the Court should strike these materials because they are outside the Administrative Record; in the alternative, Defendant seeks to exclude these materials on the grounds that some were not properly authenticated and some were not identified by Plaintiff during discovery. Plaintiff counters that there is good cause to admit the disputed materials because Defendant operated under a conflict of interest by both evaluating and paying for Plaintiff's benefits.

In ERISA cases applying arbitrary and capricious review, "a district court's decision to admit evidence outside the administrative record is discretionary, but which discretion ought not to be exercised in the absence of good cause." Krauss v. Oxford Health Plans, Inc., 517 F.3d 614, 631 (2d Cir. 2008) (internal quotation marks omitted) (applying arbitrary and capricious review to Defendant's refusal to reimburse Plaintiff's surgery expenses, and admitting evidence outside administrative record); see also Biomed Pharm., Inc. v. Oxford Health Plans (N.Y.), Inc., 831 F. Supp. 2d 651, 658 (S.D.N.Y. 2011) ("While it is true that a court's review of an ERISA claim under an arbitrary and capricious standard is generally limited to evidence in the administrative record, the court has discretion to admit evidence outside the record upon a showing of good cause.") (internal quotation marks omitted); Ramsteck v. Aetna Life Ins. Co., No. 08 Civ. 12 (JFB), 2009 WL 1796999, at *7 (E.D.N.Y. June 24, 2009) ("While the decision whether to consider evidence from outside the administrative record is within the discretion of the district court[,] the presumption is that judicial review is limited to the record in front of the claims administrator unless the district court finds good cause to consider additional evidence.") (internal quotations marks, brackets, and ellipses omitted). Although a Defendant's demonstrated conflict of interest may be an example of good cause, see DeFelice v. Am. Int'l Life Assurance Co. of N.Y., 112 F. 3d 61, 66-67 (2d Cir. 1997), "a conflicted administrator does not per se constitute good cause, and . . . a finding of a conflicted administrator alone should not be translated necessarily into a finding of good cause." Locher v. Unum Life Ins. Co. of Am., 389 F.3d 288, 296 (2d Cir. 2004). This is because "a per se rule would effectively eliminate the good cause requirement and the discretion afforded to district courts in deciding whether to admit additional evidence." Id. at 295.

Plaintiff has not shown that there is good cause for the Court to admit the documents outside the administrative record. The documents are irrelevant to the question of whether Defendant's denial of Plaintiff's claim was arbitrary and capricious. See Robbins v. Aetna Life Ins. Co., No. 03 Civ. 5792 (NGG), 2006 WL 2589359, at *7 n.4 (E.D.N.Y. Sept. 8, 2006) (finding no good cause to admit documents that were irrelevant to the determination of whether Defendant acted arbitrarily and capriciously). Indeed, the additional medical treatment notes were made "made after [Defendant's] review had been completed" and therefore have "little independent probative value." Muller v. First Unum Life Ins. Co., 341 F.3d 119, 125-26 (2d Cir. 2003). Finally, Dr. Schneider's Declaration concerns whether Defendant or the Center is to blame for the missed peer review on August 10, 2009; the Court fails to see how, as Plaintiff argues, the answer to that question implicates Defendant's credibility or its conflict of interest. Accordingly, the Court finds that Plaintiff has failed to make a showing of good cause, and GRANTS Defendant's Motion to Strike.

III. CONCLUSION

For the reasons set forth above, Defendant's Motion for Summary Judgment (Dkt. No. 23) is DENIED and Defendant's Motion to Strike (Dkt. No. 37) is GRANTED. Defendant's determination is VACATED and the case is REMANDED for reconsideration consistent with this Memorandum and Order. SO ORDERED. Dated: December 20, 2012

New York, New York

/s/_________

Deborah A. Batts

United States District Judge