:: Clinical Evidence Protocols Rejected Under ERISA Plan’s Medical Necessity Standard

While a plan administrator need not “accord special weight to the opinions of a claimant’s physician,” it also “may not arbitrarily refuse to credit a claimant’s reliable evidence, including the opinions of a treating physician.”Black & Decker Disability Plan v. Nord, 538 U.S. 822, 834 (2003);see also Demirovic v. Bldg. Serv. 32 B-J Pension Fund, 467 F.3d 208, 212 (2d Cir. 2006).

If BCBS “impose[d] a standard not required by the plan’s provisions, or interpret[ed] 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  [*3] (internal quotation marks omitted).

Durgin v. Blue Cross & Blue Shield of Vt., 2009 U.S. App. LEXIS 25139 (2d Cir. Nov. 17, 2009)

This unpublished opinion from the Second Circuit is instructive in showing that  evidence-based protocols, e.g., clinical studies, may exceed what is required to show medical necessity, even under an abuse of discretion standard of review. 

In this case, the claimant, Richard Durgin, challenged Blue Cross’ denial of coverage for a “standing component” on his motorized wheelchair under BCBS’s “Vermont Freedom Plan”.  

Blue Cross asserted the following grounds:

 # 1  that “[t]here are no peer reviewed clinically controlled studies available showing that the stander improves net health outcomes,” and

# 2  that there is “no evidence showing the benefit of the standing feature and that it will help restore or maintain [Durgin’s] health.”