Opinion
99-CV-0877E(M).
February 2, 2001.
MEMORANDUM and ORDER
This action to recover benefits under a medical insurance policy issued to plaintiff's decedent spouse was removed from the New York Supreme Court, County of Erie, by Notice of Removal filed November 3, 1999. An Amended Notice of Removal was filed November 4, 1999. Inasmuch as this is an action governed by the provisions of the Employee Retirement Income Security Act ("ERISA") and brought pursuant to 29 U.S.C. § 1132(a)(1)(B), jurisdiction of this Court over the present matter is premised on 28 U.S.C. § 1331(a). Presently before this Court is defendant's motion for summary judgment. For the reasons that follow, such motion will be granted.
Except where otherwise indicated, the following facts are undisputed. Alice Pawlowski, now deceased, received certain healthcare benefits through a contract ("the Medical Plan") made between the Buffalo AFL-CIO Council and Blue Cross and Blue Shield of Western New York. Defendant's Local Rule 56 Statement of Undisputed Facts ("Statement") ¶ 1. In October of 1997 plaintiff's decedent became a resident of the Erie County Home, a nursing care facility, as a result of her having been diagnosed with progressive Alzheimer's dementia with severe behavioral disorder. Compl. ¶ 5; Statement ¶ 3; Plaintiff's Local Rule 56 Statement ("Response") ¶ 2. She remained in such facility until her death July 16, 1999. Response ¶ 1.
American Federation of Labor-Congress of Industrial Organizations.
Inasmuch as plaintiff was the lawful spouse of the decedent, the Erie County Home has invoiced plaintiff as the responsible party for the nursing care it provided to the decedent in an unpaid amount which is alleged to exceed $65,000. Response ¶¶ 2, 3, 5. Upon receiving such invoices, plaintiff applied for benefits on behalf of the decedent under the Medical Plan. Statement ¶¶ 4, 7. After conducting reviews of the submitted claims, defendant denied payment on the basis that the care rendered to the decedent was "custodial" in nature, such non-skilled nursing care not being covered under the Medical Plan. Statement ¶¶ 5, 6, 9, 12, 13.
Believing that the applications for payment were denied arbitrarily, capriciously and without sound medical foundation, plaintiff commenced the instant action arguing that, during her time at the Erie County Home, the decedent received skilled nursing care which was medically necessary on a continuing basis. Response ¶ 6. Moreover, because the Medical Plan covered skilled nursing care, plaintiff argues that defendant's non-payment thereof could not have been supported by substantial evidence. Response ¶ 6.
Preliminarily, this Court notes that defendant has alleged that dismissal of the instant action is proper because plaintiff, as merely the spouse of the decedent, cannot maintain an action to recover benefits allegedly due to the decedent. Defendant argues that, because civil enforcement of an ERISA claim can only be brought by certain individuals, the instant action has not been brought by a proper ERISA plaintiff and may not be maintained. For example, it notes that nowhere in the Complaint or in subsequent papers does plaintiff indicate that he is the proper legal representative of decedent's estate and that only the administrator or executor of decedent's estate may prosecute ERISA claims relating to such. This argument is, however, unavailing.
To have standing to bring an ERISA action, a plaintiff must be a "participant," "beneficiary" or "fiduciary" of the plan governed by ERISA. 29 U.S.C. § 1132(a). Plaintiff has not alleged that he is a participant or fiduciary of the Medical Plan, but the record shows that he is a beneficiary of such. While section 1002(8) of ERISA states that the "term `beneficiary' means a person designated by a participant, or by the terms of an employee benefit plan, who is or may become entitled to a benefit thereunder," courts have interpreted such language to include those persons having "a reasonable or colorable claim for benefits under an ERISA plan." Crawford v. Roane, 53 F.3d 750, 754-755 (6th Cir. 1995). In terms of standing to bring suit, "a `colorable claim' is one that is arguable, not frivolous." Christensen v. Chesebrough-Pond's, Inc., 862 F. Supp. 22, 24 (D.Conn. 1994).
In this action, defendant has not disputed that plaintiff remains liable for any unpaid amount owing to the Erie County Home. Indeed, it is a presumption under New York law that plaintiff is liable for such amount. See, e.g., New York Fam. Ct. Act § 412 ("A married person is chargeable with the support of his or her spouse and, if possessed of sufficient means or able to earn such means, may be required to pay for his or her support a fair and reasonable sum, as the court may determine, having due regard to the circumstances of the respective parties."). Given the fact that ERISA was promulgated, in part, to protect "those family members [who] necessarily incur financial obligations * * * as the result of an allegedly illegal [denial] of ERISA-regulated insurance benefits," construing plaintiff to be within the "`zone of interests' protected by ERISA to embrace the claims brought by [plaintiff] would fulfill the remedial purpose of ERISA by giving ERISA's enforcement provisions real force." Vogel v. Independence Federal Savings Bank, 728 F. Supp. 1210, 1220-1221 (D.Md. 1990). Accordingly, plaintiff has a colorable claim for benefits under the Medical Plan and has standing to bring the instant ERISA action. See Keys v. Eastman Kodak Co., 739 F. Supp. 135, 138 (W.D.N.Y. 1990) (this Court noting that it may be possible for a "plan participant's family" to be construed as a "beneficiary" of health benefits because "it is often they who must otherwise incur the costs of the health care for the participant").
Rule 56(c) of the Federal Rules of Civil Procedure instructs that summary judgment is appropriate where "there is no genuine issue as to any material fact and * * * the moving party is entitled to a judgment as a matter of law." An issue of fact is said to be material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of fact is said to be genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Ibid. When determining whether there exists a genuine issue of fact to be tried, this Court resolves all ambiguities and draws all reasonable inferences in favor of the party against whom summary judgment is sought. Id. at 255.
Inasmuch as this is an ERISA action, defendant's denial of benefits to plaintiff "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." Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). If the administrator or fiduciary possesses such authority, a denial of benefits will be subject to an arbitrary and capricious standard and may be overturned only if the decision is "without reason, unsupported by substantial evidence or erroneous as a matter of law." Pagan v. NYNEX Pension Plan, 52 F.3d 438, 442 (2d Cir. 1995). "The plan administrator bears the burden of proving that the arbitrary and capricious standard of review applies, [because] `the party claiming deferential review should prove the predicate that justifies it.'" Kinstler v. First Reliance Standard Life Ins. Co., 181 F.3d 243, 249 (2d Cir. 1999) (quoting Sharkey v. Ultramar Energy Ltd., 70 F.3d 226, 230 (2d Cir. 1995)). Moreover and where such discretionary authority is reserved, deferential review will apply to both the plan interpretation and factual determinations. Kinstler, at 251.
Citation and internal quotation marks omitted.
As applied to the instant matter, there is no dispute among the parties as to the Medical Plan's vesting full discretion in the plan administrator and the undersigned's separate review of such policy comes to no different conclusion. Consequently and as indicated by plaintiff, the issue before this Court is "whether the late Alice Pawlowski required custodial care (as the defendant determined) or round-the-clock skilled nursing care (as the plaintiff claims)." Plaintiff's Brief in Opposition, at 3. That said, a court "may overturn a decision to deny benefits only if it was `without reason, unsupported by substantial evidence or erroneous as a matter of law.'" Pagan, at 442 (quoting Abnathya v. Hoffman-La Roche, Inc., 2 F.3d 40, 45 (3d Cir. 1993)). Substantial evidence is such evidence that might be reasonably accepted as adequate to support the determination reached by the plan administrator. Miller v. United Welfare Fund, 72 F.3d 1066, 1072 (2d Cir. 1995). Stated differently, the question is "whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Jordan v. Retirement Comm. of Rensselaer Poly. Inst., 46 F.3d 1264, 1271 (2d Cir. 1995).
Quotations marks omitted.
It is not disputed that, pursuant to the terms of the Medical Plan, custodial care is defined as that care primarily provided for the purpose of meeting the personal needs of the patient and that could be provided by persons without professional skills and training. As stated previously, the dispute between the parties resides in how each has chosen to characterize the care rendered to the decedent during her time at the Erie County Home. In canvassing the administrative materials submitted by defendant in support of its motion for summary judgment as well as reviewing the deposition of the decedent's primary care physician, plaintiff argues that these materials clearly demonstrated the decedent's need for and receipt of the type of skilled care that she was provided at the Erie County Home because, inter alia, the decedent was unable to feed herself due to inadequate or unsafe swallowing, that the decedent was often abusive and assaultive to care providers and that the decedent was functionally unable to groom herself or even attend to her most basic of bodily functions. Plaintiff's Brief in Opposition at 4-7.
Insofar as plaintiff believes that these materials clearly establish that the decedent received "extensive assistance with the activities of daily living and constant supervision [in order] to safeguard her physical and mental well-being" — id. at 4 —, the undersigned agrees. No person could reasonably deny that, under the circumstances present in this matter, such services did not have this effect.
Such agreement, however, is inapposite to the question of whether defendant acted arbitrarily and capriciously in deciding that the decedent had not been rendered skilled care. It is undisputed that the Medical Plan only provided for skilled nursing facility services where the decedent would have required such "care on a daily basis and that hospitalization would otherwise be medically necessary." Mathien Decl. Ex. A at 278. It is also not disputed that the Medical Plan stated that where the care to be rendered was "primarily for the purpose of meeting personal needs and can be provided by persons without professional skills or training," it was to be construed as custodial and not covered. Mathien Decl. Ex. A at 279. Three reviews of the medical record by two independent physicians determined that the care rendered was, in fact, custodial in nature; the last specifically noting that there were "[n]o skilled or restorative needs in [the decedent] with severe progressive dementia." Mathien Decl. Ex. A at 159 (completed Physician Review form); see also id. at 163, 166. As this Court has stated in other actions, it is not enough for a claimant to assert that her doctor would have chosen to characterize the treatment received differently under the circumstances which transpired or to convince the undersigned that he would have made a decision different from that made by defendant. Bella v. Metropolitan Life Ins. Co., No 98-CV-0150E(F), 1999 WL 782132, at *5 (W.D.N.Y. Sept. 30, 1999). "What is critical at this stage is for the plaintiff to demonstrate that the defendant's decision is not supported by substantial evidence in the record" and, in light of the medical evidence supporting defendant's determination that the care received by the decedent was primarily custodial in nature, "[t]his much the plaintiff has failed to do." Ibid. Quite simply, there is a dearth of evidence in the record indicating that the decedent received the type of care covered under the Medical Plan. In this regard, there is no indication in the record that the decedent required the maintenance of a feeding tube or of intravenous fluids, there is no indication that plaintiff required physical or occupational therapy and, perhaps most importantly, there is nothing in the record which suggests that plaintiff required skilled nursing care so that her vital signs could be closely observed and corrective action taken, if necessary. Two cases are particularly helpful in illustrating this point. In Watts v. Organogenesis, Inc., 30 F. Supp.2d 101 (D.Mass. 1998), the court found that the plan administrator was wrongfully depriving the quadriplegic plaintiff of benefits under a medical plan similar to that alleged herein because the receipt of custodial nursing care would merely be an incident to, and a natural consequence of, skilled nursing care "reasonably expected to improve [the plaintiff's] underlying condition of autonomic dysreflexia," a life-threatening condition which required the undivided attention of "a particularly skilled" and professionally trained nurse. Id. at 106-110. The court further noted that, insofar as the receipt of custodial care was concerned, the fact that such care could be construed as routine or domestic did not "diminish the health-care significance of [such care] being performed with the utmost care and skill" for the plaintiff because such is medically required to manage the plaintiff's "extreme" case of dysreflexia. Id. at 109. In the instant matter, plaintiff has not alleged the presence of any similar extenuating factor which would have acted to "transform" the decedent's receipt of custodial services into services merely incidental to skilled nursing care. In Manginaro v. The Welfare Fund of Local 771, I.A.T.S.E., 21 F. Supp. 2 d 284 (S.D.N.Y. 1998), the court reversed and remanded part of a decision by fiduciaries of a welfare fund to not pay certain medical expenses to a quadriplegic plaintiff because the determination not to do so was based on an incomplete medical record. The court found, for example, that the physician who made the decision to deny such benefits on the basis that such services were custodial never considered the opinion of the plaintiff's treating physician which stated, inter alia, that the plaintiff required a constant "seizure watch" and a nurse capable of handling medication and aspiration. Id. at 305. In the case at hand, there is no such allegation that the medical record was incomplete or that defendant made its decision on incomplete information. In short, there is nothing in the record which creates a genuine issue of fact as to the reasonableness of defendant's determination.
By way of example, the Medical Plan stated that "custodial care includes * * * activities of daily living such as help in walking; getting in and out of bed; bathing; dressing; eating; toileting and taking medicine." Mathien Decl. Ex. A at 279.
Accordingly, it is hereby ORDERED that, because plaintiff has failed to demonstrate that defendant's denial of benefits was arbitrary and capricious, defendant's motion for summary judgement is granted and that this case shall be closed.