Tenth Circuit Addresses Standards for Full and Fair Review of Health Claims
On May 15, 2023, the United States Court of Appeals for the Tenth Circuit issued a decision in DK v. United Behavioral Health, No. 21-4088, stating that under the “full and fair review” requirement of ERISA § 503 and its implementing health claims regulations, administrators must “engage” in “meaningful dialogue” with participants and respond to the views of treating health care providers in their rejection letters. In DK, the Tenth Circuit upheld summary judgment in favor of a participant seeking long-term mental health residential care coverage, finding that United Behavioral Health (United) arbitrarily and capriciously denied the participant’s claims with “conclusive answers” and without proper examination. the participant’s medical records and opinions from the treating providers.
One issue in the case was whether a provision of the 2016 update to the U.S. Department of Labor’s (DOL) claims settlement, which specifically required disability claims administrators to explain any disagreement with the points views presented by treating health care providers when determining benefits, applies to determinations of medical claims. United argued that the new regulations, 29 CFR § 2560.503-1(g)(1)(vii)(A)(i) and § 2560.503-1(j)(6)(i)(A), establish a stricter standard for disability claims that did not apply to medical claims. The plaintiffs disagreed, as did the DOL, which argued as amicus curiae that “any variation in the wording of the regulations regarding disability and health plans does not change the standards of ‘full and fair examination materially similar required by the regulations’. The ERISA Industry Committee (ERIC) filed an amicus brief disagreeing with the DOL’s position – ERIC argued that the interpretation of the 2016 Claims Rule Amendment as applying not only disability claims, as stated in the amendment, but also health plan claims violated the Administrative Procedures Act (APA) and is not entitled to deference. The Tenth Circuit refrained from addressing head-on the impact of the amended regulatory wording on health claims, but determined that even if the regulation “established[] different basic requirements “for medical and disability claims,”[t]The regulations do not relieve United of its responsibility to engage with medical opinions in claims for health benefits.”
According to the court, reviewers of claims
obligations under ERISA require them to respond to medical opinions, especially those that may contradict their conclusions. This is the heart of a meaningful dialogue: if benefits are denied and the claimant provides potential rebuttal evidence from medical opinions, the review must respond to the opinions. . . . By refusing to respond to the opinions of the attending physician presented to him. . . United acted arbitrarily and capriciously.
The court declined to credit claims that United’s claims reviewers considered the views of treating healthcare providers because that information was not shared with the denial letter participant, who, according to the court, had to be “complete” in order to form a “meaningful dialogue”. ” for a full and fair review.
Finally, the Tenth Circuit found that the District Court did not abuse its discretion in denying the removal, given “the administrator’s clear and repeated procedural errors in denying this request.” According to the court, “it would be contrary to ERISA’s fiduciary principles to order a dismissal and provide an ‘extra bite to the apple.'” United appear ready to seek another opportunity to address the Court of Appeal and have until June 13, 2023, to request a rehearing.
Court rejects claims to deny benefits and MHPAEA in autism case
In Midthun-Hensen v. Group Health Cooperative of South Central Wisconsin, No. 21-cv-608 (WD Wisc. May 8, 2023), the U.S. District Court for the Western District of Wisconsin held that Group Health Cooperative of South Central Wisconsin (GHC) did not not unreasonably or unlawfully denied coverage for speech therapy as a treatment for a minor’s autism spectrum disorder (ASD) and that GHC’s denials did not violate the Mental Health Parity Act and the Dependency Equity (MHPAEA). In reaching its decision, the court focused on whether the processing at issue was “evidence-based” and whether the GHC was using a “comparable” or “stricter” process to limit access to speech therapy or occupational therapy versus pediatric chiropractic care.
The terms of the relevant plan provided some coverage for “intensive level” and “non-intensive level” ASD treatment; under either level, treatment had to be ‘evidence-based’. In a written policy, GHC outlined treatments for ASDs that it determined were supported by sufficient evidence, as well as treatments that lacked such evidence. The policy was based on a report published by the National Autism Center (NAC) that analyzed reliable peer-reviewed studies of treatments for people with ASD and classified the treatments as “established” (i.e. say supported by enough evidence to determine that they were effective), “emerging” (i.e. further studies were needed before the treatment could be deemed effective) or “not established” (i.e. i.e. there is little or no evidence to draw a firm conclusion on effectiveness). During the period at issue, 2017-2019, GHC policy adopted the NAC’s decision that speech therapy was an evidence-based treatment for children ages 3-9, but not for children 10 years and over. The policy also adopted the decision of the NAC that there was insufficient evidence for the effectiveness of sensory integration occupational therapy in the treatment of ASD.
Before the minor (KH) turned 10, GHC authorized coverage of certain ASD treatments for her, including speech therapy. However, when KH was 10, GHC informed his parents that speech therapy would no longer be covered because it was not an evidence-based treatment for ASDs in children over 10. And in denying a prior request for sensory integration occupational therapy, GHC cited its policy and said occupational therapy was not an evidence-based treatment for autism.
In summary judgment, the parties agreed that only evidence-based, non-experimental treatments were covered by the plan and that the plan gave GHC discretion to determine coverage. The first question was therefore whether GHC had acted arbitrarily and capriciously in rejecting KH’s claims for benefits.
The court found that the GHC policy and the NAC standards incorporated into the policy “provide[d] rational support for GHC’s findings that the treatments sought were not covered by the plan because they were not “evidence-based” treatments for ASD.” On the other hand, the court dismissed plaintiffs’ “conclusive assertions” and ruled that none of their evidence provided “strong support” that the denied therapies were evidence-based. And even though the physicians from whom GHC requested an external review did not fully and fairly considered Plaintiffs’ claims, they have “not shown that GHC failed to fully and fairly consider Plaintiffs’ claim. Instead, GHC “could reasonably expect” external reviewers to be “aware of the current state of clinical research and the extent to which [requested] treatments. . . were generally accepted as effective by the medical community at large. »
Further, the court found that GHC failed to “apply[y] a more stringent test to assess medical support for treatments for ASD, a mental health condition, than chiropractic treatments, a medical condition,” and therefore did not violate the MHPAEA. GHC did not dispute that outpatient chiropractic treatment was in the same or occupational therapy for the treatment of ASD, nor did GHC dispute that outpatient chiropractic treatment was a comparable medical/surgical analog for the purposes of the MHPAEA.
to the extent that there was a disparity in coverage of ASD treatments sought for KH and pediatric chiropractic treatment, this was not the result of the GHC applying a more restrictive policy or process to benefits of mental health, but of a difference in the status of the acceptance of these. treatment by the medical community as a whole.
The court also ruled that GHC did not violate Wisconsin’s autism mandate requiring insurers to cover evidence-based services for ASDs, for the same reasons it denied denial claims. complainants’ benefits.
403(b) plan determination program opens June 1
Effective June 1, 2023, the Internal Revenue Service (IRS) is expanding its Letters of Determination program to include certain 403(b) plans. Plan sponsors who maintain an individually designed 403(b) plan will be permitted to submit a Determination Letter Request for an initial plan determination based on the plan sponsor’s EIN:
EIN ends in 1, 2 or 3: submit from June 1, 2023. EIN ends in 4, 5, 6 or 7: submit from June 1, 2024. EIN ends in 8, 9 or 0: submit to from June 1, 2025.
Plan sponsors may also submit a request to terminate 403(b) plans beginning June 1, 2023. The IRS may announce other circumstances that would allow 403(b) sponsors to submit a request for determination to the coming. See Tax Procedure 2022-40 for more information. Form 5300, Application for Determination for Employee Benefit Plan, and Form 5310, Application for Determination Upon Termination, will be updated in Pay.gov to reflect the addition of 403(b) plans.
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