
719 F.Supp.2d 508 (2010)
Joel E. HIRSH
        v.
        BOEING HEALTH AND WELFARE BENEFIT PLAN, a/k/a the Boeing Traditional
        Medical Plan, and Boeing Employee Benefits Plan Committee.
Civil Action No. 09-CV-3120.
United States District Court, E.D. Pennsylvania.

June 14, 2010.
*510 Thomas D. Schneider,
        Wallingford, PA, Joseph M. Fioravanti, Media, PA, for Joel E. Hirsh.
Kimberly J. Gost, Nina Markey, Littler Mendelson, PC, Philadelphia, PA,
        for Boeing Health And Welfare Benefit Plan, a/k/a the Boeing Traditional
        Medical Plan, and Boeing Employee Benefits Plan Committee.

MEMORANDUM AND ORDER
JOYNER, District Judge.
This action is now pending before this Court for resolution of the
        parties' crossmotions for summary judgment. For the reasons outlined in
        the paragraphs which *511 follow,
        the motions shall be granted in part and denied in part.

Background Facts
Plaintiff Joel Hirsh is an employee of the Boeing Company and, as such,
        he and his family have health care coverage under the Boeing Health and
        Welfare Plan, otherwise known as the Boeing Traditional Medical Plan
        (hereinafter "Plan"). Since he was a small child, Mr. Hirsh's son A.H.
        has required psychiatric and/or mental health treatment.[1]
        In 2006 when he was 15 years old, A.H. began receiving that treatment on
        an inpatient basis, at a number of different facilities.[2]

On or about March 7, 2007, A.H. entered in-patient treatment at Innercept
        Academy, located in Coer D'Alene, Idaho. With the exception of several
        brief visits home to Wynnewood, Pennsylvania, A.H. remained at Innercept
        until April 19, 2008, when his parents transferred him to the King
        George School ("KGS"), a therapeutic boarding school in Vermont. A.H.
        apparently received in-patient treatment at the King George School until
        sometime in April 2009. Despite Plaintiffs repeated submissions of bills
        and doctor's reports, and appeals for payment of A.H.'s in-patient
        expenses from Innercept and KGS, the defendants have refused coverage
        and/or reimbursement for any of A.H.'s treatment at KGS and have refused
        to pay anything more than $13,753 for the care which he received at
        Innercept.[3]
On July 13, 2009, Plaintiff commenced this lawsuit pursuant to Section
        502 of the Employee Retirement Income Security Act, 29 U.S.C. § 1132
        ("ERISA") seeking to recover the full amount of benefits due under the
        Plan, together with counsel fees, *512 interest, and costs of suit.
        In reliance on the administrative record, both parties now move for the
        entry of judgment in their favor pursuant to Fed.R.Civ.P. 56.

Standards Governing Summary Judgment Motions
Fed.R.Civ.P. 56(c)(2) dictates the general standard for determining
        motions for summary judgment:
"The judgment sought should be rendered if the pleadings, the
        discovery and disclosure materials on file, and any affidavits show that
        there is no genuine issue as to. any material fact and that the movant
        is entitled to judgment as a matter of law."
    
An issue is genuine only if there is a sufficient evidentiary basis on
        which a reasonable jury could find for the non-moving party, and a
        factual dispute is material only if it might affect the outcome of the
        suit under, governing law. Kaucher v. County of Bucks, 455 F.3d
        418, 423 (3d Cir.2006), citing Anderson v. Liberty Lobby, Inc.,
        477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The summary
        judgment standard requires us to resolve all ambiguities and to view all
        facts and draw all factual inferences in favor of the non-moving party.
        Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91
        L.Ed.2d 265 (1986); Gardner v. Unum Life Insurance Co. of
            America, 354 Fed. Appx. 642, 648 (3d Cir.2009); Lawrence v.
            City of Philadelphia, 527 F.3d 299, 310 (3d Cir.2008). Under
        Fed.R.Civ.P. 56(a) and (b), a summary judgment motion may be filed by
        either the party claiming relief or the defending party and the same
        principles apply when there are cross-motions for summary judgment. See, Lawrence,
            supra.

Discussion
Congress enacted ERISA to "protect... the interests of participants in
        employee benefit plans and their beneficiaries" by setting out
        substantive regulatory requirements for employee benefit
        plans[4] and to "provide for appropriate remedies, sanctions
        and ready access to the Federal courts." Aetna Health, Inc. v.
            Davila, 542 U.S. 200, 208, 124 S.Ct. 2488, 2495, 159 L.Ed.2d 312
        (2004) quoting 29 U.S.C. § 1001. The purpose of ERISA is to provide a
        uniform regulatory regime over employee benefit plans. Id.
ERISA "permits a person denied benefits under an employee benefit plan to
        challenge that denial in federal court." Barinova v. ING, 363
        Fed.Appx. 910, 913 (3d Cir.2010), quoting Metropolitan Life Insurance
            Co. v. Glenn, 554 U.S. 105, 128 S.Ct. 2343, 2346, 171 L.Ed.2d
        299, 305 (2008). To this end, Section 502(a)(1)(B) provides the
        following, in relevant part:
(a) Persons empowered to bring a civil action
A civil action may be brought
(1) by a participant or beneficiary
....

*513 (B) to recover benefits due to
        him under the terms of his plan, to enforce his rights under the terms
        of the plan, or to clarify his rights to future benefits under the terms
        of the plan;
    
29 U.S.C. § 1132(a)(1)(B).
Such claims may be brought against an ERISA plan itself or against the
        persons who are shown to have control over the plan in their fiduciary
        capacity. Rieser v. Standard Life Insurance Company, Civ. A. No.
        03-5040, 2004 WL 1427131 at *5, 2004 U.S. Dist. LEXIS 11556 at *16
        (E.D.Pa. June 24, 2004), citing Curcio v. Hancock Mutual Life
            Insurance Co., 33 F.3d 226, 233 (3d Cir.1994). A plaintiff
        seeking to recover under Section 502(a)(1)(B) must demonstrate that the
        benefits are "actually due," that is, he or she must have a right to
        benefits that is legally enforceable against the plan. Hooven v.
            Exxon Mobil Corp., 465 F.3d 566, 574 (3d Cir.2006). However, the
        ERISA statute itself fails to state the appropriate standard of review
        to be applied in actions challenging benefits denials under Section
        502(a)(1) and it has therefore been left to the courts to carve out the
        appropriate standards. In so doing, the Supreme Court looked to trust
        law for guidance, recognizing that the proper standard of review of a
        trustee's decision depends on the language of the instrument creating
        the trust. Conkright v. Frommert, ___ U.S. ___, 130 S.Ct. 1640,
        176 L.Ed.2d 469, 475 (2010). Under trust law, if the trust documents
        give the trustee power to construe disputed or doubtful terms, the
        trustee's interpretation will not be disturbed if reasonable. Id.

Based on these considerations, the Supreme Court decreed that "a denial
        of benefits challenged under § 1132(a)(1)(B) 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." Id., quoting Firestone
            Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct.
        948, 103 L.Ed.2d 80 (1989). When the administrator has this authority,
        courts apply an arbitrary and capricious standard of review. Doroshow
            v. Hartford Life and Accident Insurance Co., 574 F.3d 230, 233
        (3d Cir.2009); Abnathya v. Hoffmann-La Roche, Inc., 2 F.3d 40, 45
        (3d Cir.1993).[5] But if a benefit plan gives discretion to
        an administrator or fiduciary who is operating under a conflict of
        interest, that conflict must be weighed as a factor in determining
        whether there is an abuse of discretion. Firestone, 489 U.S. at
        115, 109 S.Ct. at 957. Such a conflict of interest is created where the
        entity that administers the plan, such as an employer or an insurance
        company, both determines whether an employee is eligible for benefits
        and pays benefits out of its own pocket. Metropolitan Life Ins. v.
            Glenn, 128 S.Ct. at 2346.[6]
*514 ERISA's framework also ensures
        that employee benefit plans be governed by written documents and summary
        plan descriptions, which are the statutorily established means of
        informing participants and beneficiaries of the terms of their plan and
        its benefits. In re Lucent Death Benefits ERISA Litigation, 541
        F.3d 250, 254 (3d Cir.2008), quoting In re Unisys Corp. Retiree
            Medical Benefit ERISA Litigation, 58 F.3d 896, 902 (3d
        Cir.1995). It is therefore incumbent upon the courts to look to the plan
        documents to interpret plan obligations. In re Lucent, 541 F.3d
        at 254. The written terms of a plan control and employers may not modify
        or supercede them orally. Gardner, supra; In re
            Lucent, 541 F.3d at 255. When a plan is clear and unambiguous, a
        court must determine its meaning as a matter of law without looking to
        extrinsic evidence. In re Lucent, id., citing International
            Union v. Skinner Engine Co., 188 F.3d 130, 138, 145 (3d
        Cir.1999). Likewise in considering a claim, a court may not substitute
        its own judgment for that of the plan administrator. Stratton v. E.I.
            DuPont de Nemours & Co., 363 F.3d 250, 256 (3d Cir.2004).
        That is, the court's review should be based on the record available to
        the plan administrator and should not represent the court's independent
        judgment of the claimant's disability. Orr v. Metro Life Ins.
            Co., 2007 WL 2702929 at *11, 2007 U.S. Dist. LEXIS 67855 at *32
        citing Kosiba v. Merck & Co., 384 F.3d 58, 69 (3d Cir.2004).
        See also, Mitchell v. Eastman Kodak Co., 113 F.3d 433, 440
        (3d Cir.1997); Magera v. Lincoln National Life Insurance Co., No.
        3:08-CV-565, 2009 WL 260993 at *2, 2009 U.S. Dist. LEXIS 7871 at *4
        (M.D.Pa. Feb. 4, 2009). Where a court is applying "the arbitrary and
        capricious standard of review, the `whole' record consists of that
        evidence that was before the administrator when he made the decision
        being reviewed." Magera, id., quoting Mitchell v. Eastman
            Kodak, 113 F.3d at 440.
As is clearly stated in the plan documents in this case, the Plan Sponsor
        of the plaintiffs medical benefits plan is the Boeing Company and the
        Plan Administrator is the Employee Benefits Plans Committee ("EBPC").
        The EBPC may be reached and contacted at the same address as the Boeing
        Company. (AR0434, AR0529, AR0969). The plan documents further state:
As Plan Administrator, the EBPC has authority over
        administration of the Plan and has all powers necessary to enable it to
        carry out its duties as Plan Administrator, such as determining
        questions of eligibility and benefit entitlement. The Plan Administrator
        has authority to make these determinations in its sole discretion. The
        Plan Administrator's decision upon all such matters is final and
        binding.
The Plan Administrator also has been delegated authority by the Board
            of Directors *515 to amend the
            Plan. The Board of Directors has authority to terminate the Plan.
        
The Plan Administrator may establish rules and procedures to be
            followed by participants and beneficiaries in filing applications
            for benefits and in other matters required to administer the Plan.
            In addition, the Plan Administrator may

Prescribe forms for filing benefit claims and for annual and
                other enrollment materials.
            
Receive all applications for benefits and make all
                determinations of fact necessary to establish the right of the
                applicant to benefits under the provisions of the Plan,
                including the amount of such benefits.
            
Appoint accountants, attorneys, actuaries, consultants, and
                other persons (who may be employees of the Company) to advise
                the Plan Administrator; also the Plan Administrator may rely
                upon the opinions of counsel and upon reports furnished by
                others that it selects.
            
Delegate these and other administrative duties and
                responsibilities to persons or entities of its choice (including
                delegation to employees of the Company).
            
…


(AR0529).[7]
Included in the plan is a Mental Health and Substance Abuse Program which
        "provides benefits for treatment of mental illness (including eating
        disorders, such as anorexia nervosa or bulimia) and substance abuse
        (including abuse of or addiction to alcohol, recreational, or
        prescription drugs). The program is administered by Value Options."
        Value Options, which appears to be a health care management/utilization
        *516 review company is
        alternatively described as the "service representative" which
        "administers the program, maintains the provider network, and operates
        the Boeing Helpline." (AR0336-AR0337, AR0397, AR0501).[8]
By way of a separate contract, the Boeing Company engaged the services of
        Regence Blue Shield to provide claims processing, payment and
        administration services relative to the non-mental health components of
        the traditional medical plan. (AR0449-AR0452). Under that contract,
        Regence and Boeing further agreed that Regence Blue Shield "shall
        finally determine in its discretion whether to pay benefits and cover
        services, in accordance with the procedures in the Plan." (AR0457).[9]
        Furthermore, for services to be eligible for reimbursement under the
        Mental Health Program portion of the plan, the treatment must be
        determined to be "medically necessary,[10]" and received from
        any provider contracted with the Boeing Helpline, a licensed psychiatric
        doctor (M.D.), a licensed clinical psychologist, licensed psychiatric
        nurse (R.N.) or psychiatric professional at the master's level or above,
        or from a hospital or treatment facility. If the services are provided
        by a network provider (i.e. one referred by the Boeing Helpline),
        they will be reimbursed at the rate of 100% after the annual deductible
        for covered inpatient, partial hospital, or intensive outpatient
        services; residential treatment may be covered under the plan when it is
        authorized in place of inpatient care. For non-network providers, the
        reimbursement rate is only 50% of usual and customary charges after the
        annual deductible for the covered services of a non-referred provider if
        the care is certified as covered by the Boeing Helpline. Where the
        "mental health treatment is related to, accompanies or results from
        substance abuse, the program will cover only substance abuse treatment."
        (AR0397-AR0398; AR0501-AR0502).
As is apparent from the preceding language, the plan administrator has
        discretionary authority to make determinations as to eligibility for and
        entitlement to benefits. Since the EBPC appears to be part of the Boeing
        Company itself, we find that the plan administrator likewise appears to
        *517 be operating under a conflict
        of interest. Thus, while we apply the arbitrary and capricious/abuse of
        discretion standard of review to the claims in this case, we shall
        consider the conflict of interest in that application.
The Administrative Record in this matter is voluminous and reflective of
        the ongoing (and often-unnecessary in this Court's opinion) struggle
        which Plaintiff was forced to endure with Value Options, the service
        representative for the Mental Health portion of the defendant plan. To
        be sure, the record reveals that although it at first refused
        certification and denied coverage for A.H.'s initial admission to
        Innercept, after several months and multiple appeals to Regence Blue
        Shield, Value Options ("VO") eventually agreed that the treatment which
        A.H. received at Innercept between March 7 and July 10, 2007 was
        medically necessary and approved coverage.[11] However,
        notwithstanding its eventual certification of care, VO determined and
        subsequently Regence Blue Shield upheld the decision that the "usual and
        customary charge" for the services provided to A.H. by Innercept for
        that period of time was $13,753 per admission. In contrast, Innercept's
        charges for that time frame equal approximately $40,000. (AR0691).
        Specifically, the letters from Regence Blue Shield upholding the denial
        of payments in excess of $13,753 for A.H.'s admission to Innercept
        explain that this amount was calculated
"based upon the charge that is most frequently made by providers
        with similar qualifications for comparable services or supplies within
        the same geographic area. When determining the profile amounts within a
        specific area, the Plan utilizes the performing provider's zip code.
        Services rendered from March 7, 2007 through June 30, 2007 processed to
        Coeur d'Alene, ID, zip code 83816. In addition, inpatient hospital
        charges from out of state providers are reimbursed at a flat rate per
        admission and are not based on the length of stay. The usual and
        customary amount for A.H.'s inpatient hospital admission for these
        behavior health services, provided within zip code 83816 is $13,753 per
        admission..." (AR0685-AR0688).
    
Defendants rely upon the following plan language to justify the decision
        to limit the reimbursement amount for A.H.'s Innercept admission to the
        amount referenced above:

How the Plan Determines the Covered Charge
This plan pays benefits based on the covered charges. A
            covered charge is the provider's charge for a covered service or
            supply, up to the service representative's maximum allowance. The
            amount of the covered charge depends on whether you see a network or
            a nonnetwork provider.
        

For a network provider, the service representative
                determines the amount *518 of
                the covered charge for a particular service or supply under any
                applicable agreement between the service representative and the
                provider.
            
For nonnetwork provider, the covered charge is based on
                the usual and customary charge for the covered service or supply.
                This plan does not cover or otherwise recognize any portion of a
                provider's charge that exceeds the usual and customary charge; you
                are responsible for these charges.
            
Usual and Customary Charge. The usual and customary charge
                is the maximum charge for a covered service or supply the service
                representative will consider for reimbursement from a nonnetwork
                provider. The service representative may refer to this as the
                "maximum reimbursable charge," "maximum allowable charge,"
                "reasonable and customary charge," "allowed amount," or a similar
                term.
            

The usual and customary charge is the least of

The provider's actual charge for the service or
                supply,
            
The provider's normal charge for a similar service or
                supply, or
            
A predetermined percentile (negotiated between each
                carrier and plan sponsor) of charges made by providers of a
                comparable service or supply in the geographic area where it is
                received.
            

To determine if a charge exceeds the usual and customary
            charge for medical services or supplies in situations involving
            unusual or complicated services or supplies, the nature and severity
            of the injury or sickness may be considered. The service
            representative uses a database of provider charges to determine the
            usual and customary charge in an area. Information about the
            database and percentile used to determine the usual and customary
            charge can be obtained by contacting the service representative.
        
If you use a nonnetwork provider, you pay any charges above
            the usual and customary amount.
        
Benefit Maximums
This plan limits the amount of money that it will pay for
            certain services and for any one person covered by this plan.
        

A benefit maximum limits the amount the plan will pay
                for
                a specific covered service for a specified period or visit,
                depending on the service. Once a participant reaches a benefit
                maximum, this plan will not cover that specific service or
                supply
                for the rest of the specified period.
            

...

(AR0381).
Hence, it is clear that the plan does indeed grant authority to the
        service representative to develop a database to use in determining
        what the usual and customary charges are for a particular service in
        a given region. It is also clear from the administrative record that
        VO and Regence Blue Shield decided to allow only the payment of a
        flat rate per admission but that they did not apprise the plaintiff
        or Innercept of this decision until October, 2007. (AR0691-AR074,
        AR0944). It is not clear after an exhaustive review of the
        administrative record, however, where that database is, how it was
        developed, how it resulted in the calculation of the figure of
        $13,753 as being the usual and customary charge for the zip code in
        question, or whether it was used to determine that this same figure
        should be used as the benefit maximum for A.H. Hirsh's Innercept
        admission in March, 2007. Plaintiff, on the other hand, produced and
        submitted to the defendants a report from the University of New
        Hampshire and the National Association of Therapeutic Schools and
        Programs (NATSAP) which evinced that the amounts *519 charged per day by
        providers like Innercept ranges nationally from a low of $125 to a
        high of $700, with an average of $318, which is about what Innercept
        charged for the care which A.H. received. (AR0632-AR0646). Thus we
        find that the decision limiting the expenses for the plaintiffs
        son's admission and stay at Innercept to the flat rate of $13,753
        was unsupported by substantial evidence and without apparent reason.
        We consequently conclude that this decision constituted an abuse of
        discretion. See, Abnathya, 2 F.3d at 45; Orr,
        2007 WL 2702929 at *11-12, 2007 U.S. Dist. LEXIS 67855 at *31-*32.
        Further, inasmuch as there is nothing on this record to refute the
        reasonableness of this $318 per day rate, we find that for the
        period between March 7 and July 10, 2007, the plan should have paid
        the sum of $40,068 for A.H.'s stay at Innercept. Thus with respect
        to this decision, we shall grant Plaintiffs motion for summary
        judgment and direct that the plan reimburse him in the amount of
        $26,315.[12]
We next consider the reasonableness of Value Options' determination
        that A.H. no longer required the level of treatment which Innercept
        provided after July 10, 2007 and the Plan's refusal to pay for that
        care after that date. The Innercept records are somewhat scant for
        this period of time; however, it appears that by June 30, 2007, A.H.
        had begun to make some positive changes in his life and had begun to
        gain better control of his behavior, at least within the confines of
        the Innercept environment. (AR0016-AR0023). He was on a home visit
        from July 6 through July 10, 2007 which reportedly went well,
        although A.H. apparently was irritable and contentious with
        Innercept staff and had some issues with inappropriate boundaries
        with a female peer upon his return. (AR085-AR086). The plaintiff and
        his family were concerned that A.H. would not accept boundaries
        should he be returned home permanently and his doctors were
        concerned that he would resume his drug use. (AR0087). Despite these
        concerns, VO found that A.H. did not meet its criteria (3.30, et
            seq.) for continuing care in a residential treatment center.
        Specifically, VO determined and Regence Blue Shield agreed, that
        A.H. satisfied Exclusion Criteria 3[13] and did not meet
        Continued Stay Criteria 4[14] because "[h]e is able to
        safely be treated in a community setting while living with his
        family. He is nearly at grade level and has fallen behind since in
        attendance at the RTC level of care. His return home can include the
        start of summer school, family therapy, individual therapy and
        voluntary guidance from the Department of Probation if necessary."
        (AR0087). The Administrative Record suggests that there was some
        type of peer to peer review of A.H.'s records by a Dr. *520 Rao, who presumably
        reviewed his medical records and spoke with his attending physician,
        Dr. Ullrich. Nevertheless, it is unclear what information Dr. Rao
        and/or Value Options relied upon in concluding that A.H. could be
        treated in a "community setting" with "family therapy, individual
        therapy and voluntary guidance from the Department of Probation if
        necessary,[15]" or that summer school was even available
        to A.H.. Rather, the notes repeatedly reference A.H.'s moods as
        being "labile," "easily frustrated," that he was "intimidating both
        with staff and peers," and reflect the concern of Dr. Ullrich that
        A.H. would resume his illegal drug use and otherwise relapse if he
        were discharged too soon. (AR0001-AR0029, AR0087-AR0089). Again,
        under the arbitrary and capricious standard of review, a reviewing
        court may overturn an administrator's decision to deny benefits if
        it is without reason or unsupported by substantial evidence. See,
            Estate of Schwing, 562 F.3d at 526, n. 2. We find this to be
        the case as to the decision to deny coverage for A.H.'s Innercept
        care after July 10, 2007. Given that we cannot discern from the
        record before us how long after July 10, 2007[16] A.H.
        may have continued to require the level of care provided by
        Innercept, we shall remand this matter to the administrator for
        reevaluation of this issue.
Finally, we consider whether the refusal to cover A.H.'s treatment at
        the King George School ("KGS")in Vermont constituted an abuse of
        discretion and/or was arbitrary and capricious. In this regard,
        there is virtually no evidence whatsoever as to what type of
        treatment and care was available and/or provided to A.H., what his
        condition was upon admission to or during his stay at the facility
        or how or if he may have benefitted from the treatment received. It
        further does not appear from the plan documents that therapeutic
        boarding schools are recognized as "providers" within the meaning of
        the plan. Insofar as it is incumbent upon a plaintiff seeking to
        recover under Section 502(a)(1)(B)to demonstrate that the benefits
        are "actually due," (See, e.g., Hooven, supra.)
        we find that as to KGS, Mr. Hirsh has failed to satisfy this
        obligation. Accordingly, we find no abuse of discretion on the part
        of the plan administarator(s) in denying payment and/or
        reimbursement *521 for A.H.'s
        admission and stay at the King George School.
For all of the foregoing reasons, we shall grant in part and deny in
        part the parties' cross-motions for summary judgment. An appropriate
        order follows.

ORDER
AND NOW, this 14th day of June, 2010, upon consideration of the
        Motion for Summary Judgment of Defendants Boeing Health and Welfare
        Plan and Boeing Employee Benefits Plan Committee (Doc. No. 11) and
        Plaintiffs Motion for Summary Judgment (Doc. No. 12), it is hereby
        ORDERED as follows:
1. Plaintiffs Motion is GRANTED IN PART, Judgment is entered in favor
        of Plaintiff in the amount of $26,315 and this matter is REMANDED to
        the Plan Administrators) for reconsideration of A.H. Hirsh's
        entitlement to benefits for the care and treatment which he received
        at Innercept after July 10, 2007. In all other respects, the
        Plaintiffs Motion for Summary Judgment is DENIED.
2. Defendants' Motion is GRANTED IN PART and Judgment is entered in
        favor of the Defendants as a matter of law as to Plaintiffs claim
        for benefits for the treatment and care rendered to his son, A.H.
        Hirsh at the King George School in Sutton, VT. In all other
        respects, the Defendants' Motion for Summary Judgment is DENIED.
NOTES
[1] More recently, A.H. has been diagnosed as suffering from, inter
        alia, major depressive disorder with psychotic features, anxiety
        disorder with obsessive thoughts and polysubstance dependence, as
        well as a variety of learning disorders. As of November, 2007, he
        also demonstrated a "[p]ersistent danger of self harm/suicide,
        delusional impairment in reality testing, compulsive need to self
        medicate with illegal substances, inability to regulate personal
        hygiene and the danger of self injurious behavior or elopement."
        (AR0060-AR0062).
[2] Indeed, the Administrative Record reflects that between June 22,
        2006 and August 8, 2006, A.H. Hirsh was placed in the wilderness
        program at Three Rivers Montana in Belgrade, Montana. On or about
        August 9, 2006, A.H. was transferred to Logan River Academy in
        Logan, Utah where he remained through November 8, 2006. The
        plaintiff and his wife paid slightly more than $20,000 to Three
        Rivers Montana for A.H.'s participation in the wilderness program,
        none of which was reimbursed by the plan. Although A.H. was
        eventually asked to leave the Logan River Academy, Mr. Hirsh's
        insurance did pay for his treatment and stay there. Immediately
        after his removal from Logan River, A.H. was admitted to the
        Northern Idaho Behavior Health ("NIBH") facility in Coeur d'Alene,
        Idaho. NIBH charged about $28,000 per month but it was a contracted
        "in-network" provider under the plan and thus most of the NIBH bill
        was paid by the plan. A.H. was transferred from NIBH to Innercept
        Academy on March 7, 2007, primarily because two of his treating
        therapists from NIBH were on staff there and because it was
        academically accredited which would enable A.H. to complete 10th
        grade there. (AR0647-AR0682). As noted, aside from a few visits home
        to Pennsylvania, A.H. remained at Innercept until April, 2008 when
        he transferred to the King George School in Vermont. He stayed at
        King George for approximately one year-through April, 2009.
[3] According to the complaint in this matter, Innercept billed Mr.
        Hirsh approximately $38,000 for A.H.'s treatment between March 7,
        and June 30, 2007, and $85,000 for the care he received between July
        10, 2007 and April 19, 2008. (Pl's Complaint, ¶s 11-12, 17). The
        complaint further avers that Mr. Hirsh paid the King George School
        some $91,400 for the services which it provided to A.H. in the
        one-year period between April 2008 and April 2009. (Complaint, ¶
        24).
[4] Under 29 U.S.C. § 1002(1),
    
[t]he terms `employee welfare benefit plan' and `welfare plan' mean
        any plan, fund, or program which was heretofore or is hereafter
        established or maintained by an employer or by an employee
        organization, or by both, to the extent that such plan, fund, or
        program was established or is maintained for the purpose of
        providing for its participants or their beneficiaries, through the
        purchase of insurance or otherwise, (A) medical, surgical or
        hospital care or benefits or benefits in the event of sickness,
        accident, disability, death or unemployment, or vacation benefits,
        apprenticeship or other training programs or day care centers,
        scholarship funds, or prepaid legal services, or (B) any benefit
        described in section 186(c) of this title (other than pensions on
        retirement or death, and insurance to provide such pensions).
[5] At least in the ERISA context, the "arbitrary and capricious"
        standard of review and the "abuse of discretion" standard are
        practically identical. Estate of Schwing v. The Lilly Health
            Plan, 562 F.3d 522, 526, n. 2 (3d Cir.2009). Under these
        standards, a reviewing court may overturn an administrator's
        decision to deny benefits "if it is without reason, unsupported by
        substantial evidence or erroneous as a matter of law." Orr v.
            Metro Life Insurance Co., Civ. A. No. 1:CV-04-557, 2007 WL
        2702929 at *11, 2007 U.S. Dist. LEXIS 67855 at *31-*32 (M.D.Pa.
        Sept. 13, 2007), quoting Abnathya, supra.
[6] Indeed, in the Firestone and Glenn cases, the
        Supreme Court outlined the following four relevant principles for
        reviewing benefits determinations made by fiduciaries and/or plan
        administrators:
    
(1) In "determining the appropriate standard of review," a court
        should be "guided by principles of trust law;" in doing so, it
        should analogize a plan administrator to the trustee of a common-law
        trust; and it should consider a benefit determination to be a
        fiduciary act (i.e., an act in which the administrator owes a
        special duty of loyalty to the plan beneficiaries).
(2) Principles of trust law require courts to review a denial of plan
        benefits "under a de novo standard" unless the plan provides
        to the contrary.
(3) Where the plan provides to the contrary by granting "the
        administrator" or fiduciary discretionary authority to
        determine eligibility for benefits, trust principles make a deferential
            standard of review appropriate. (4) If a "benefit plan gives
        discretion to an administrator or fiduciary who is operating
            under a conflict of interest that conflict must be weighed
            as a factor in determining whether there is an abuse of
        discretion."
Metropolitan Life Insurance Co. v. Glenn, 128 S.Ct. at
        2347-2348 quoting, inter alia, Aetna Health v. Davila,
        542 U.S. at 218, 124 S.Ct. 2488 and Firestone, 489 U.S. at
        111-115, 109 S.Ct. 948.
[7] The foregoing language is contained in the 2000 Edition of the
        Plan, and was apparently undisturbed by the various amendments made
        thereto between 2000 and 2007. The language in the 2008 version of
        the Plan is similar and likewise vests discretion to determine
        benefits eligibility in the Plan Administrator:
    
Notwithstanding any other provision in the Plan, and to the full
        extent permitted under ERISA and the Internal Revenue Code, the Plan
        Administrator has the exclusive right, power, and authority, in its
        sole and absolute discretion, to

Administer, apply, construe, and interpret the Plan and all
            related Plan documents.
        
Decide all matters and questions arising in connection with
            entitlement to benefits and the nature, type, form, amount, and
            duration of benefits.
        
Amend the Plan.
Establish rules and procedures to be followed by participants
            and beneficiaries in filing applications for benefits and in
            other matters required to administer the Plan.
        
Prescribe forms for filing benefit claims and for annual and
            other enrollment materials.
        
Receive all applications for benefits and make all
            determinations of fact necessary to establish the right of the
            applicant to benefits under the provisions of the Plan,
            including the amount of such benefits.
        
Appoint accountants, attorneys, actuaries, consultants, and
            other persons (who may be employees of the Company) for advice,
            counsel and reports to make determinations of benefits or
            eligibility.
        
Delegate its administrative duties and responsibilities to
            persons or entities of its choice such as the Boeing Service
            Center, the service representatives, and employees of the
            Company.
        

All decisions that the Plan Administrator (or any duly authorized
        designees) makes with respect to any matter arising under the Plan
        and any other Plan documents are final and binding. If any part of
        this Plan is held to be invalid, the remaining provisions will
        continue in force.
(AR0434-AR0435).
Finally, the Boeing Company's Master Welfare Plan effective as of
        January 1, 2007 likewise contains similar, but not identical
        language as to the Plan Administrator. (See, e.g., AR0969-AR0974).
        Because the parties have not specified precisely which version of
        the Plan was in effect at the time(s) at issue in this action, we
        have variously referred to and/or quoted from each of them.
[8] Again, while the wording used in the 2000 and 2008 versions of
        the Mental Health and Substance Abuse Program portions of the plan
        is not identical, the meaning is for all intents and purposes, the
        same. For this reason, we excerpt portions of the two versions of
        the plan interchangeably.
[9] It is also evident from our review of the Administrative Record
        that Regence Blue shield was similarly charged with reviewing
        benefits determinations under the Mental Health and Substance Abuse
        Program. (See, e.g., AR0685-AR0690).
[10] "Medically necessary" means that the treatment, services, or
        supply meets the following criteria in accordance with the plan and
        as determined by the service representative. The treatment, service
        or supply is:
    

Required to diagnose or treat the patient's illness, injury, or
            condition; and the condition cannot be diagnosed or treated
            without it.
        
Consistent with the symptom or diagnosis and the treatment of
            the condition.
        
The most appropriate service or supply that is essential to the
            patient's needs.
        
Appropriate as good medical practice.
Professionally and broadly accepted as the usual, customary, and
            effective means of diagnosing or treating the illness, injury,
            or condition.
        
Unable to be provided safely to the patient as an outpatient
            (for an inpatient service or supply).
        

A treatment, service, or supply may be medically necessary in part
        only. The fact that a physician furnishes, prescribes, recommends,
        or approves a treatment, service, or supply does not, by itself,
        make it medically necessary.
(AR0382).
[11] It is interesting that Value Options' explanations for the
        denial of benefits for A.H.'s admission to Innercept changed no
        fewer than 7 times. (See, e.g., AR0122-AR0148). Examples of
        the bases for VO's denials include that Innercept "did not meet
        [VO's] standards for Residential Treatment Facilities as there is
        not 24 hour a day licensed staff coverage;" "because Treatment
        planning is not individualized and/or appropriate to the
        individual's condition, and/or does not include specific goals and
        objectives within a reasonable timeframe," and that VO's review
        "does not indicate the presence of self-harming behaviors or current
        aggressive threatening behaviors that would meet criteria for
        Residential Treatment Setting. An appropriate level of care to the
        needs of the patient is Outpatient Services," which was later
        amended to "Partial Hospitalization with Intensive/Structured
        setting," and still later to "Partial Hospitalization." (See
            also, AR 0073-AR095, AR0329-AR0357, AR0647-AR0682).
[12] Because it appears that Mr. Hirsh has already paid Innercept's
        bill in full, we direct that the plan reimburse him for the
        difference between the $40,068 charged for the services provided to
        A.H. between March 7 and July 10, 2007 and the $13,753 previously
        paid.
[13] Under the Exclusion Criteria for Residential Treatment Center
        Services (RTS) (Child/Adolescent) 3.301,
    
Any of the following criteria is sufficient for exclusion from
        this level of care:
....
3. The child/adolescent can be safely maintained and effectively
        treated at a less intensive level of care.
(AR0333-AR0334).
[14] Under the Continued Stay Criteria for Residential Treatment
        Center Services (RTS) (Child/Adolescent) 3.301,
    
All of the following criteria are necessary for continuing
        treatment at this level of care:
....
4. All services and treatment are carefully structured to achieve
        optimum results in the most time efficient manner possible
        consistent with sound clinical practice.
[15] The remark concerning the Department of Probation is
        particularly puzzling given that there is no evidence that A.H. was
        ever the subject of a juvenile court or other court proceeding or
        convicted of any crime.
[16] Indeed, it appears that on or about December 4, 2007, A.H. was
        admitted for inpatient care at a psychiatric hospital due to his
        reports of hearing voices, suicidal ideation, obsessive, threatening
        and aggressive behaviors regarding a female peer. He remained there
        until December 15, 2007 when he was discharged back to Innercept.
        (AR0092-AR0095). In addition, in late November, 2007, A.H. was
        evaluated by Doris Lebischak, M.D., a psychiatrist in Wayne,
        Pennsylvania, who diagnosed him as then suffering from, inter
            alia, "Major Depressive Disorder with psychotic features vs.
        Schizoaffective Disorder #295.70, depressive type vs.
        Schizo-phreniform disorder 295.40, Anxiety Disorder with obsessive
        thoughts and Polysubstance dependence #304.8." Dr. Lebischak further
        opined that:
    
"A.H.'s present level of care is inpatient mental health and acute
        residential treatment facility. A.H. needs a specialized program to
        meet his unique educational and mental health needs. There needs to
        be control of expressed emotion in the setting with small group
        instruction, intensive therapeutic supports and AA/NA component with
        weekly psychiatric intervention and a program that is able to
        maintain and monitor hygiene and prompt as needed. A closed unit or
        highly secure unit for safety concerns of suicide, self-injury and
        assault risks as well as elopement risk continues to be medically
        necessary."
(AR0060-AR0063).

