     14-3773-cv
     Groudine v. Albany Medical Center Group Health Insurance Plan

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 3rd day of September, two thousand fifteen.
 5
 6       PRESENT: JOHN M. WALKER, JR.,
 7                DENNIS JACOBS,
 8                DEBRA ANN LIVINGSTON,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       Scott Groudine, M.D.,
13                Plaintiff-Appellant,
14
15                    -v.-                                               14-3773-cv
16
17       Albany Medical Center Group Health
18       Insurance Plan,
19                Defendant-Appellee.
20       - - - - - - - - - - - - - - - - - - - -X
21
22       FOR APPELLANT:                        LISA S. KANTOR (Peter S.
23                                             Sessions, on the brief), Kantor
24                                             & Kantor LLP, Northridge,
25                                             California.
26
27       FOR APPELLEES:                        MICHAEL D. BILLOK (Nicholas J.
28                                             D’Ambrosio, Jr., on the brief),

                                                  1
 1                              Bond, Schoeneck & King, PLLC,
 2                              Albany, New York.
 3
 4        Appeal from a judgment of the United States District
 5   Court for the Northern District of New York (Mordue, J.).
 6
 7        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 8   AND DECREED that the judgment of the district court be
 9   AFFIRMED.
10
11        Plaintiff Scott Groudine, M.D. (“Plaintiff”) appeals
12   from the judgment of the United States District Court for
13   the Northern District of New York (Mordue, J.), granting
14   summary judgment in favor of defendant-appellee Albany
15   Medical Center Group Health Insurance Plan (the “Plan”).1
16   We assume the parties’ familiarity with the underlying
17   facts, the procedural history, and the issues presented for
18   review.
19
20        1.   We review the district court’s grant of summary
21   judgment de novo and apply the same legal standard as the
22   district court. Hobson v. Metro. Life Ins. Co., 574 F.3d
23   75, 82 (2d Cir. 2009). A challenge to the denial of
24   benefits by an employee benefit plan governed by the
25   Employee Retirement Income Security Act of 1974, 29 U.S.C.
26   § 1132, is reviewed under an arbitrary and capricious
27   standard if the benefit plan gives the plan administrator
28   discretion to determine benefits eligibility or to construe
29   the terms of the plan; otherwise, the denial is reviewed de
30   novo. Pagan v. NYNEX Pension Plan, 52 F.3d 438, 441 (2d
31   Cir. 1995). The district court held that the denial of
32   benefits for the treatment of Plaintiff’s daughter, L.
33   Groudine, at Laurel Hill Inn Residential Treatment Program
34   (“Laurel Hill”) was appropriate under either standard. It
35   therefore did not determine whether the Plan delegated
36   discretionary authority to determine benefits eligibility to
37   administrative subcontractor ValueOptions, Inc.
38   (“ValueOptions”). We agree.
39


         1
           The district court also denied Plaintiff’s cross-
     motion for summary judgment and Plaintiff’s motion to strike
     certain evidence submitted by the Plan. Plaintiff does not
     challenge these rulings. Nor does Plaintiff challenge the
     district court’s grant of summary judgment on his cause of
     action for equitable relief.
                                  2
 1        2.  Residential care is clearly excluded from coverage
 2   under the Summary Plan Description; partial hospitalization
 3   is covered, subject to conditions. Plaintiff has failed to
 4   raise any material issue of fact as to whether L. Groudine
 5   received partial hospitalization treatment while she was
 6   admitted to Laurel Hill; all of the evidence the parties
 7   have put before the Court supports solely the conclusion
 8   that she did not.
 9
10        The program itself is termed the “Residential Treatment
11   Program,” J.A. 680, and Laurel Hill’s first billing
12   statement billed its services as “residential treatment,”
13   J.A. 118. Plaintiff has come forward with no evidence that
14   supports his contention that residential treatment is merely
15   a subset of partial hospitalization, as opposed to something
16   different in kind. The parties variously cite the Summary
17   Plan Description, Regan Declaration, ValueOptions Provider
18   Handbook, Laurel Hill Inn Residential Treatment Program
19   description, and Medicare regulations; all require the
20   conclusion that these are different types of treatment, and
21   that L. Groudine received residential care at Laurel Hill.2
22   Plaintiff has provided no evidence to the contrary.
23   Accordingly, the district court was correct to grant summary
24   judgment on Plaintiff’s claim to recover the amount of
25   benefits denied for L. Groudine’s treatment at Laurel Hill.
26
27        3.   Plaintiff has raised no dispute of material fact
28   as to whether he was entitled to additional reimbursement
29   for L. Groudine’s partial hospitalization treatment at
30   Oliver Pyatt Center. The Plan has submitted evidence
31   establishing that the amount Plaintiff was reimbursed
32   exceeded the maximum possible reimbursement under the
33   “usual, customary and reasonable” (“UCR”) formula that
34   Plaintiff contends the Plan should have used to determine
35   his benefits.
36


         2
           Our consideration of the Regan Declaration and
     ValueOptions Provider Handbook does not mean that we have
     determined ValueOptions’ determination to be deserving of
     deference. See Appellant’s Reply Br. at 8. Plaintiff
     himself cites to the descriptions set forth in the
     ValueOptions Provider Handbook as evidence of the meaning of
     the two types of treatment, Appellant’s Opening Br. at 19;
     Appellant’s Reply Br. at 9, so we consider them along with
     the other evidence in the record.
                                  3
 1        Plaintiff contends that the improper billing code was
 2   used to determine this UCR reimbursement rate. However, he
 3   made no attempt to submit countervailing evidence of a
 4   proper code or rate. Plaintiff argues that the Plan’s
 5   evidence as to the UCR rate should be disregarded because
 6   the Plan first submitted the evidence in its reply and
 7   opposition to Plaintiff’s cross-motion below. However, we
 8   agree that the complaint did not give notice that Plaintiff
 9   believed the UCR rate should have been used to determine
10   benefits; he first raised this argument in his cross-motion
11   and opposition to the Plan’s motion for summary judgment.
12   Moreover, Plaintiff had the opportunity to request
13   permission to submit a reply in support of his cross-motion,
14   see N.D.N.Y. Local Rule 7.1(c); he has offered no reason for
15   his failure to do so, or for his failure to submit evidence
16   of the UCR rate in such a reply or in his cross-motion and
17   opposition.
18
19        For the foregoing reasons, and finding no merit in
20   Plaintiff’s other arguments, we hereby AFFIRM the judgment
21   of the district court.
22
23                              FOR THE COURT:
24                              CATHERINE O’HAGAN WOLFE, CLERK
25




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