Current trends in litigation regarding wilderness therapy coverage center on motion practice. Courts have been unpredictable with granting or denying defendants’ motions to dismiss and motions for summary judgment, and recent case law does not provide much clarity or predictability. Predictability in dispositive motion practice is important, as the success of a dispositive motion can have a variety of effects on litigation. For example, the implications of plaintiffs surviving a motion to dismiss include continued litigation, costly discovery, increased plaintiff confidence, and increased leverage for plaintiffs in settlement talks. The implications of plaintiffs surviving a motion for summary judgment are even more drastic; the case will be more likely go to trial and plaintiffs will gain more leverage in any settlement discussions.
At the beginning of this year, in A.G. v. Community Ins. Co., the Southern District of Ohio granted a defendant’s partial motion to dismiss in an ERISA action arising out of the plan administrator’s denial of coverage for plaintiff’s wilderness behavioral health treatment. The court held that the plaintiff was not entitled to benefits for a wilderness therapy program because those services were expressly excluded under the plan, and the defendant’s interpretation of the term “wilderness camp” was not arbitrary or capricious. The court also held that the plan’s blanket exclusion of wilderness therapy coverage did not violate the Parity Act because the plan equally covered mental health and medical/surgical services at residential treatment centers. Nevertheless, the court recognized its departure from the majority of jurisdictions by noting it “is cognizant that the majority of district courts have denied motions to dismiss such claims brought under the Parity Act.”
Decided less than a month after the A.G. decision, the Michael D. v. Anthem Health Plans of Kentucky, Inc. decision indicated that courts may still be hesitant to grant defendants’ dispositive motions in disputes regarding wilderness therapy coverage. The Michael D. case also involved an ERISA action regarding a plan administrator’s denial of benefits for the plaintiff’s wilderness therapy treatment, yet the court granted the plaintiff’s motion for summary judgment on the defendant’s denial of coverage for wilderness therapy treatment. The court held that the denial of benefits for wilderness therapy treatment was arbitrary and capricious because the term “wilderness camp” is ambiguous on its face, and the defendant failed to show an exclusion applied to coverage for the wilderness therapy program. The court did not reach the issue of whether the plan’s blanket exclusion for wilderness camps violated the Parity Act, but provided some guidance because “the court is concerned that a blanket exclusion for all wilderness camps, which in practice has only been applied to mental health treatment, may constitute a [Parity Act] violation.”
Following the Michael D. decision, however, another case was decided that suggests courts may be more willing to grant defendants’ dispositive motions than was previously indicated by the Michael D. decision. In the case of Alice F. v. Health Care Serv. Corp., the court found in favor of the defendant regarding the denial of coverage for the plaintiff’s treatment at a wilderness therapy program because the program was not licensed to provide residential treatment center services; thus, was ineligible for coverage under the plan’s terms. The court also held that the plan’s definition of residential treatment centers did not violate the Parity Act. Notably, the court cited a string of recent wilderness therapy cases and stated that “[a] significant limitation in relying on this case law, however, is the varying language used in the respective plans. Because each contract must be interpreted according to its own terms, the results of these cases are, predictably, all over the map.”
It is important for employers offering these benefit plans, as well as their attorneys and advisors, to closely watch these developments to determine how to modify any exclusionary language that could be considered arbitrary and capricious or in violation of the Parity Act. If employers keep an eye on these developments, it is likely that they will begin to change any exclusionary language in their plans to adapt to the growing case law regarding coverage for wilderness therapy programs. As courts continue to decide what exclusionary language is acceptable and as plans adjust, the current unpredictability in dispositive motion practice will also likely subside.