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Mereness v. United States Office of Personnel Management

United States District Court, E.D. Missouri, Southeastern Division

August 17, 2016

MICHAEL MERENESS, Plaintiff,
v.
UNITED STATES OFFICE OF PERSONNEL MANAGEMENT, Defendant.

          MEMORANDUM and ORDER

          STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE

         On March 18, 2015, plaintiff Michael Mereness filed this lawsuit against the United States Office of Personnel Management (“OPM”) alleging that OPM had breached its contract with him by wrongfully denying insurance coverage for his son, N.M.. Both parties have filed for summary judgment, and the motions are now fully briefed and ripe for disposition.

         I. Factual Background

         The facts of this matter are uncontested except where indicated.

         Plaintiff Michael Mereness was at all relevant times an employee of the United States government and a participant in the Compass Rose Health Plan (the “Plan”), which provides health benefits to eligible employees and their families under the Federal Employees’ Health Benefits Act, 5 U.S.C. §§ 88901-8914 (“FEHBA”). Under the FEHBA, the United States Office of Personnel Management (“OPM”) contracts with qualified insurance carriers (such as the Compass Rose Health Plan) to provide health benefits to federal employees. The FEHBA requires contracting insurance carriers like the Plan here to pay for or provide any health services or supplies to which OPM determines that the insured is entitled. 5 U.S.C. §§ 8902(d) & (j).

         Plaintiff’s Plan provided health benefits for himself and his enrolled son, N.M. In 2012, plaintiff and N.M. were eligible for benefits in the Compass Rose Plan. N.M. suffers from mental health problems and has been diagnosed with Bipolar Affective Disorder Type II, Attention Deficit Hyperactivity Disorder Combined Type (“ADHD”), and Reactive Attachment Disorder. N.M.’s diagnoses relate in large part to trauma N.M. suffered as a small child, before he was adopted from Russia by his American parents. N.M. was removed from the custody of his drug-addicted biological mother when he was a year old, after having been left alone for three days. He suffered from numerous interpersonal problems both with his adopted family and his school teachers, administrators, and peers.

         At age 14, and after other interventions were unsuccessful, N.M. was admitted into the Change Academy Lake of the Ozarks (“CALO”) on May 11, 2012. CALO is a residential treatment facility specializing in treatment of attachment, trauma, and emotional disturbances. At the time of N.M.’s admission, his estimated discharge date was September 30, 2013, which would have constituted nearly 17 months of inpatient treatment. N.M. was actually discharged on August 2, 2013, after 449 days of treatment.

         At some point, [1] plaintiff received notice from InforMed, the administrator for the Plan, that N.M. was approved for the inpatient residential program at CALO for only 65 days, from May 11 to July 15, 2012.

         Plaintiff appealed that decision with InforMed, the Plan administrator. InforMed began the process of reviewing the necessity of N.M.’s treatment at CALO. InforMed retained an independent psychologist who reviewed 89 pages of CALO records concerning N.M.’s treatment from May 4 through October 31, 2012. The psychologist determined that continued stay in an inpatient residential program beyond July 15, 2012 was not medically necessary for N.M. because he “does not present an ongoing threat of harm or injury to self or others.” On September 24, 2013, a Nurse Reviewer on behalf of the IMMS[2] Medical Director informed plaintiff that his request for an inpatient residential program for N.M. had been reviewed by the Medical Director, who determined that the “requested benefits [did] not meet the Plan’s criteria for medical necessity under the exclusions/limitations section of the Plan’s Summary Plan Description….” Plaintiff appealed that decision on March 3, 2014. The appeal was denied on May 2, 2014. That letter stated that N.M.’s

continued stay in an inpatient residential program beyond 7/15/12 was not medically necessary. The patient is noted to have occasional problems with anger, impulsivity, aggression, and interpersonal conflict. However, these episodes were of a low enough frequency and severity that continued, long term residential treatment was not medically necessary. The patient’s care could have been safely delivered in a less restrictive setting, which is always a priority in treatment. The physician providing the review of your appeal was neither an individual who was consulted in connection with the original denial of your claim nor the subordinate of such individual.

         A covered individual whose claim has been denied by a carrier must appeal to OPM before bringing a civil action seeking review of such denial. 5 C.F.R. § 890.107(c). Plaintiff thus requested an independent medical review of InforMed’s denial on September 2, 2014. At OPM’s request, a Medical Review Analysis Report was issued by Dr. Michael E. McManus, who is Board Certified in Child and Adolescent Psychiatry.

         The questions posed for review were:

(1) Based upon the clinical documentation and the Plan’s definition, was it medically necessary for the patient [sic] continue treatment at a residential treatment facility from July 16, 2012 to August 2, 2013? If yes, during what dates was treatment at this level medically necessary?
(2) Could the patient have been safely, adequately and effectively treated at a lower level of care? If so, what dates apply?

         Dr. McManus’s response, in its entirety, was that

(1) No, the Plan definition is not met and the continued treatment at a residential treatment facility from July 16, 2012 to August 2, 2013 was not medically necessary for this patient…. This patient’s care could have been provided at a lower level of care from 7/16/12 forward.
(2) Yes. From July 16, 2012 forward, the patient could have been safely, adequately and effectively treated at a lower level of care. By July 16, 2012, the patient had been stabilized on his medications for ADHD and Bipolar Disorder. There is no evidence in the medical records from July 16, 2012 forward that the patient was experiencing symptomatology of ADHD or Bipolar Disorder that required intensive 24 hour treatment and supervision associated with Residential Treatment. The patient was noted to have chronic interpersonal difficulties associated with his Reactive Attachment Disorder. During his two months in Residential Treatment, the patient’s interpersonal difficulties and problematic behaviors had improved.
The medical record indicates extended periods of behavioral stability with intermittent behavioral problems which were manageable and did not require seven day a week/24 hour per day supervision associated with Residential Treatment. The patient’s interpersonal problems are chronic and are likely to require ongoing treatment and are unlikely to resolve in the context of Residential Treatment.

         OPM concurred with Dr. McManus’s conclusion. OPM thus informed plaintiff that OPM could not direct the Plan to provide additional benefits for N.M.’s treatment at CALO beyond July 15, 2012 because “confinement at the residential treatment level was not medically necessary” as defined by the Plan. Plaintiff filed this lawsuit against OPM on March 18, 2015, bringing two counts:

Count I: plaintiff claims OPM wrongfully denied continued coverage of N.M.’s residential treatment at CALO by deeming the treatment not medically necessary.
Count II: plaintiff claims that OPM violated the Mental Health Parity and Addition Act of 2008 (“MHPAEA”) by not providing mental health coverage that is not comparable to the physical health benefits ...

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