Munnelly v. Fordham Univ. Faculty (316 F. Supp. 3d 714, 2018)

Paul G. Gardephe, United States District Judge

Plaintiff Kevin Munnelly brings this action under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1132, challenging Defendants' denial of mental health benefits for residential treatment services provided to his 17-year old son, "C.M." (See Cmplt. (Dkt. No. 1) ¶¶ 1-3, 12) Plaintiff's only remaining claims are against Empire HealthChoice Assurance, Inc. ("Empire"), the claims administrator for Plaintiff's group health plan. (See id. 8)

Plaintiff has moved for summary judgment, arguing that Empire's denial of C.M.'s claim for mental health benefits was erroneous, because it was based solely on the Plan's residential treatment services exclusion without consideration of applicable federal and New York law. (Mot. (Dkt. No. 57) ) According to Plaintiff, Empire's residential treatment services exclusion constitutes a separate treatment limitation that applies only to mental health benefits, and therefore violates the Mental Health Parity and Addiction Equity Act (the "Parity Act") and the New York Parity Law (also known as "Timothy's Law"). (See Pltf. Br. (Dkt. No. 57-1) at 1) Plaintiff asks this Court to order Empire to grant his claim for mental health benefits. (See Mot. (Dkt. No. 57); Pltf. Br. (Dkt. No. 57-1) at 2)

Empire has cross-moved for summary judgment, arguing that it did not abuse its discretion in denying Plaintiff's claim for mental health benefits because (1) the Plan expressly excludes coverage for residential treatment services; (2) Plaintiff did not comply with the Plan's pre-certification requirement; (3) the Plan expressly excludes treatment for out-of-network inpatient mental health care treatment; (4) the Plan complied with the Parity Act; and (5) Plaintiff's attempts to invoke the New York Parity Law fail. (See Mot. (Dkt. No. 56); Def. Br. (Dkt. No. 59) )

BACKGROUND

Plaintiff Kevin Munnelly is employed by Fordham University. (Pltf. R. 56.1 Counterstmt. (Dkt. No. 67-1) ¶¶ 1-2) In 2014, Plaintiff and his dependents-including C.M.-received health coverage issued by Empire, under group name Fordham University Local 153's health benefits plan (the "Plan"). (Id. ¶ 3; Genovese Decl., Ex. C (Administrative Record) (Dkt. No. 58-3) at 000001, 000125, 000141-43) The Plan was in effect for "the period commencing on January 1, 2014 and ending on December 31, 2014." (Pltf. R. 56.1 Counterstmt. (Dkt. No. 67-1) ¶ 5) At all relevant times, Empire was the plan administrator as defined by 29 U.S.C. § 1002(16) of ERISA. (Id. ¶ 14)

It is undisputed that the Plan provides mental health benefits. (Pltf. R. 56.1 Stmt. (Dkt. No. 57-2) 13; Def. R. 56.1 Counterstmt. (Dkt. No. 63) ¶ 3)

I. THE PLAN

A. Overview and Relevant Definitions

Article I of the Plan contains relevant definitions, including the following:

In this Contract, "we," "us," "our" and "the Plan" refer to Empire HealthChoice, Inc. "You," "your" and "yours" refer to the Covered Member. "Group" refers to the Group that buys this Contract. Employees or members who are covered under this Contract ... are referred to as "Members." Members and their covered family members are referred to as "Covered Persons." Use of the word "he" in this Contract refers to he or she.

(Genovese Decl., Ex. C (Administrative Record) (Dkt. No. 58-3) at 000035)

"Covered Person" is defined as "[a] Member and his covered family dependents, as defined under Section B of this Article. The term 'Member' means either an employee or member of a group." (Id. ) "Covered Services" is defined as "[t]he services for which the Covered Person is entitled to receive benefits under the terms of this Contract." (Id. )

"Facilities" is defined as "providers which administer benefits for ambulatory surgery, outpatient treatment for alcoholism and substance abuse, home health care, dialysis, hospice care and skilled nursing facilities." (Id. at 000036) "Hospital" is defined as "a ... fully licensed acute care general hospital that has on its own premises all of the following:"

a. A broad scope of major surgical, medical, therapeutic, and diagnostic services available at all times to treat almost all illnesses, accidents and sudden emergencies

b. 24-hour general nursing service by registered nurses who are on duty and present in the Hospital at all times

c. A fully-staffed operating room suitable for major surgery together with anesthesia service and equipment. The Hospital must perform major surgery frequently enough to maintain a high level of expertise with respect to such surgery in order to ensure quality care

d. Assigned emergency personnel and a "crash cart" to treat cardiac arrest and other medical emergencies

e. Diagnostic radiology facilities

f. A pathology laboratory

g. An organized medical staff of licensed doctors.

(Id. )

The Plan further states "[t]he following providers are not considered Hospitals as defined in this Contract: nursing or convalescent homes and institutions; rehabilitation facilities (unless such a facility has a network agreement with us); institutions primarily for rest or for the aged; spas; sanitariums; infirmaries at schools, colleges or camps; and any institution primarily for the treatment of drug addiction, alcoholism, or mental or nervous disorders." (Id. )

"Mental and Behavioral Health Care Manager" is defined as "the managed care program designed to provide advance, written authorization for mental health care benefits. This includes benefits for alcohol and substance abuse." (Id. )

The Plan warns that "unless otherwise stated, we will not pay for any treatment, service or supply that we determine is not medically necessary. Medically Necessary means care which, according to our criteria, and in our judgment, is:"

• consistent with the systems or diagnosis and treatment of your condition, disease, ailment or injury;

• in accordance with standards of good medical practice;

• not solely for your convenience, or that of your physician or other provider;

• not primarily custodial; and

• the most appropriate supply or level of service which can safely be provided to you.

(Id. )

"Out-of-Network Benefits" are defined as "covered services which have been provided by, (1) Hospitals and Facilities which are not In-Network Providers; or (2) professional providers who are not In-Network Providers." (Id. ) "Provider means an individual (professional Provider) or entity (Hospital or Facility) that provides covered benefits to persons eligible for coverage under this Contract." (Id. )

"Skilled Nursing Care" is defined as:

[M]edical or nursing care or rehabilitation services for injured, disabled or sick persons, which is received in a Skilled Nursing Facility, under the direct supervision of a doctor, registered professional nurse, physical therapist or other health care professional, when such care is, in our judgment, medically necessary and appropriate and is approved by us. Care which is primarily assistance with the activities of daily living' does not qualify as Skilled Nursing Care.

(Id. at 000053)

B. Medical Management Program

The Plan contains a "Medical Management Program" that "the Covered Person must comply with in order to be eligible to receive the maximum In-Network and Out-of-Network benefits available under" the Plan. (Id. at 000040-45). "The Covered Person is responsible for ensuring that the pre-certification requirements are met unless th[e] contract specifically states otherwise." (Id. at 000040)

The Medical Management Program requires the Covered Person to "call the Mental and Behavioral Health Care Manager for authorization prior to receiving the following services or a penalty will be imposed on benefits otherwise available:"

• Inpatient or outpatient mental health care (covered in-network only)

• Inpatient Alcohol and Substance Abuse Detoxification (covered in-network only)

• Outpatient alcohol and substance abuse care (covered both in-network and out-of-network)

(Id. ) If the Covered Person does not comply with the pre-authorization requirement for an inpatient mental health admission, a "50% [penalty] on each admission up to $5,000 per admission[ ]" will be applied. (Id. ) "The penalty also applies to the professional visits for services rendered during an inpatient admission." (Id. )

The following services are also covered "as in-network only and must be pre-authorized": (i) Hospice; (ii) Occupational and Speech Therapy; (iii) Physical Therapy; (iv) MRIs; (v) Skilled Nursing Facility; (vi) Home infusion therapy; and (vii) Durable Medical Equipment and Prosthetics and Orthotics. (Id. at 000041) As with inpatient mental health treatment, there is a "penalty of 50% up to $5,000 on each visit or each admission[ ]" for "[f]ailure to precertify-and the penalty "also applies to the professional visits for services rendered during an inpatient admission." (Id. )

A rider to the Plan modifies the penalty, however, stating that "[t]he penalty referred to in the Medical Management Program section ... is changed and all references to $5,000 are deleted and replaced with $2,500." (Id. at 000020)

C. Out-of-Network Coverage Exclusion for Inpatient Mental Health Care

The Plan states that a "Covered Person may elect to receive covered benefits from an Out-of-Network Provider.... Not all benefits are available on an Out-of-Network basis. The use of out-of-network providers may result in substantial out-of-pocket expenses.... Th[e Out-of-Network] Allowed Amount may be substantially less than the provider's charge." (Id. at 000001) The Plan further states that "[t]he level of reimbursement, and, at times, the availability of benefits described in this Contract will vary depending on whether the services are received In-Network or Out-of-Network" (id. at 000037), and "[t]here are situations, as stated in this Contract, where no Out-of-Network benefits are available." (Id. at 000046)

Out-of-Network Benefits provisions apply when (1) the "Covered Person receives services in a Hospital or Facility that is not an In-Network Provider," or (2) the "Covered Person goes to a professional provider who is not an In-Network Provider." (Id. )

The Plan states that "[n]o Out[-]of[-]Network benefits are available for inpatient mental and behavioral health care ... including inpatient alcoholism and substance abuse care." (Id. ) Likewise, "[t]here are no out-of-network benefits for Skilled Nursing Facility or Hospice Care." (Id. )

Article III of the Plan states that "[o]nly In-Network benefits are available for inpatient mental health care and inpatient alcohol and substance abuse" and "outpatient mental health care." (Id. at 000045, 000056) Article IV of the Plan further explains that "[i]f the Covered Person does not go to an In-Network Hospital the benefits will be out of network subject to the network deductible and coinsurance requirements of this Contract. No Out of Network benefits are available for inpatient mental and behavioral health care benefits including inpatient alcoholism and substance abuse care." (Id. at 000046) Article IV also states that "[i]f the Covered [P]erson does not go to participating facilities for benefits described in Articles VI, VII, VIII, and IX the benefits will be out of network. There are no out-of-network benefits for Skilled Nursing Facility or Hospice care." (Id. )

Article V states that "[t]o qualify for inpatient Hospital benefits, as defined in Article I, Section B(9) of this Contract, a Covered Person must be a registered bed patient in a Hospital and under the care of a doctor for the treatment of illness, injury or pregnancy and for which treatment cannot be safely and effectively provided on an outpatient basis." (Id. at 000047) A subsection entitled "Mental Health Care and Care for the Treatment of Alcoholism and Substance Abuse" states that "[b]enefits must be received from an In-Network Provider and must be pre-authorized by the Mental and Behavioral Health Care Manager. In case of an emergency, the Covered Person must contact the Mental and Behavioral Care Manager within twenty four (24) hours of admission or as soon as the Covered Person is medically able to do so." (Id. at 000048)

Article X and Article XI of the Plan likewise state that "[t]here are no out-of-network benefits under this Contract" for hospice care or Skilled Nursing Facility Care. (Id. at 000052-53)

Article XII lists various medical benefits, and reiterates that mental health care benefits are "only available in-network," and that "[t]here are no Out-of-Network benefits [for mental health care]." (Id. at 000056-57)

Article XIII of the Plan "explains the limits and benefits and sets forth other services ... that are excluded from coverage under th[e] Contract." (Id. at 000060) Article XIII states that "[t]here are no Out-of-Network benefits under this Contract for the inpatient treatment of mental and behavior disorders or alcohol detoxification, and rehabilitation." (Id. at 000063)

There is a rider to the Plan regarding mental health care and alcohol and substance abuse care (the "Mental Health Care Rider"). (Id. at 000088) The Mental Health Care Rider provides that "[c]overage for inpatient services for mental health care is limited to facilities as defined by subdivision ten of section 1.03 of the New York Mental Hygiene Law." (Id. )

D. Residential Treatment Services Exclusion

The Plan also contains a chart-entitled "Your Benefits At A Glance"-which provides an "overview" of coverage. (Id. at 000330) A footnote to the section entitled "HOSPITAL SERVICES" states that the Plan "[d]oes not include inpatient or outpatient behavioral healthcare of physical therapy/rehabilitation. Residential treatment services are not covered." (Id. at 000334 n. 1 (emphasis added) ) Various out-of-network services-including obstetrical care in a birthing center, durable medical equipment, orthotics, prosthetics, skilled nursing facility, hospice, occupational therapy, speech therapy, and vision therapy-are also listed as "[n]ot covered" under the Plan. (Id. at 000333-36)

Subsection 5 of the Mental Health Care Rider-entitled "Services Not Covered" -states:

Nothing in the Rider shall be construed to cover benefits for mental health, alcohol and substance abuse services: for individuals who are presently incarcerated, confined or committed to a local correctional facility or prison, or to a custodial facility for youth operated by the Office of Children and Family Services; solely because such services are ordered by a court; that are cosmetic in nature on the grounds that changing or improving an individual's appearance is justified by the individual's mental health needs; that are experimental or investigational treatments; residential treatment services; or that are otherwise excluded under your Contract, Certificate or Group Health Plan.

(Id. at 000089 (emphasis added) )

II. PLAINTIFF'S CLAIMS FOR C.M.'S MENTAL HEALTH CARE

C.M. has a history of mental illness. (See id. at 000276, 000285)

In about April 2014, C.M. received mental health care treatment at Telos Residential Retreat, LLC-a residential treatment facility. (See id. at 000230, 000514) A claim was submitted to the Plan for these residential treatment services. (See id. at 000514)

On July 18, 2014, Empire issued a letter denying the claim. (Id.; Pltf. R. 56.1 Counterstmt. (Dkt. No. 67-1) ¶¶ 40-41) The letter states that Empire is denying benefits for residential treatment services at Telos Residential Retreat because "[r]esidential [t]reatment [is] not ... a covered service under your policy." (Genovese Decl., Ex. C (Administrative Record) (Dkt. No. 58-3) at 000514) The letter further states:

As noted in your Fordham University PPO plan benefit booklet under "Hospital Limitations & Exclusions" on page 17, it is stated as follows ... [r]esidential treatment services are not covered.

(Id. )

On July 15, 2014, C.M. was admitted to Logan River Academy, LLC-a residential treatment facility located in Utah. (Id. at 000278, 000285; Pltf. R. 56.1 Counterstmt. (Dkt. No. 67-1) ¶¶ 39, 42) Logan River provided C.M. with "structured, academic, therapeutic, residential treatment," including "individual, family, group, and milieu therapy surrounding issues of emotional and behavioral self-regulation" and "[m]edication management." (Genovese Decl., Ex. C (Administrative Record) (Dkt. No. 58-3) at 000277)

Plaintiff submitted pharmacy and non-pharmacy provider claims to Empire related to C.M.'s residential treatment at Logan River for dates of service commencing July 16, 2014 and continuing through December 2014. (Id. at 000171, 000180-89, 000230, 000236-39; Pltf. R. 56.1 Stmt. (Dkt. No. 57-2) ¶ 10; Pltf. R. 56.1 Counterstmt. (Dkt. No. 67-1) ¶¶ 46, 48)

Empire paid $1,604.40 of the $5,260.32 charge for the services provided to C.M. during his first two weeks of treatment at Logan River. (Genovese Decl., Ex. C (Administrative Record) (Dkt. No. 58-3) at 000169-71) In a November 19, 2014 Statement regarding the claim, Empire states

This service is not covered because we were not notified in accordance with your policy's Medical Management Guidelines. You are responsible for the amount shown in "Your Total Responsibility". Please refer to the section of your contract which describes the requirement of our Medical Management Program.

(Id. at 000171)

A November 21, 2014 Statement to Plaintiff regarding claims for C.M.'s August 2014 treatment at Logan River states:

We have received the above noted health insurance claim and we have sent a request to the provider of service to obtain additional clinical information needed to process the claim. As soon as we receive the required information, we will complete our review. If the information is not received within 45 days we will make a determination based on the information available.

(Id. at 000172-74)

In a December 22, 2014 Statement to Plaintiff regarding services C.M. received at Logan River in November 2014, Empire denied the claim. (Id. at 000175-77) Empire stated that "[t]his service is not payable for the diagnosis stated on the claim." (Id. at 000177)

In a January 15, 2015 Statement to Plaintiff regarding C.M.'s August 2014 treatment at Logan River, Empire denied the claim. (Id. at 000178-80) Empire stated:

This is not a covered service under your policy. Please refer to the exclusions of your contract or benefit booklet for further details.

(Id. at 000180)

In a January 26, 2015 Statement to Plaintiff regarding C.M.'s treatment at Logan River in December 2014, Empire denied the claim, stating "[t]his is not payable for the diagnosis stated on the claim." (Id. at 000181-83)

In a January 30, 2015 Statement to Plaintiff regarding C.M.'s treatment at Logan River in September 2014, Empire again denied benefits stating, "[t]his is not a covered service under your policy. Please refer to the exclusions section of your contract or benefit booklet for further details." (Id. at 000184-86)

In another January 30, 2015 Statement to Plaintiff, Empire denied benefits for C.M.'s treatment at Logan River in October 2014. (Id. at 000187-89) Empire stated, "[t]his service is not payable for the diagnosis stated on the claim." (Id. at 000189)

In about October 2014, C.M.'s mother submitted an appeal concerning Empire's denial of benefits for services rendered to C.M. at Logan River between July and September 2014. (See id. at 000505) In the appeal, C.M.'s mother stated that she believed that the services C.M. received at Logan River should be covered as a result of the "Health Care Parity Act of 2008." (See id. )

In an October 28, 2014 letter, Empire addressed the appeal. (Id.; Pltf. R. 56.1 Counterstmt. (Dkt. No. 67-1) ¶ 56) The October 28, 2014 letter contains a claims chart indicating that Empire is still processing claims for treatment services provided to C.M. at Logan River Academy between July 16, 2014 and September 30, 2014. (Genovese Decl., Ex. C (Administrative Record) (Dkt. No. 58-3) at 000505) As for claims for services rendered at other residential treatment centers between January 19, 2014 and July 15, 2014, Empire's letter states that "[t]he previous coverage decision is being upheld." Empire further states:

You are enrolled on Empire's Deluxe PPO plan. The Benefits at a Glance section of your Benefit Book explains what is covered. The Mental Health Care section specifically states that, "Residential treatment services are not covered."

(Id. (emphasis in original) )

In response to C.M.'s mother's argument that the "Health Care Parity Act of 2008" requires that benefits be provided for residential treatment services rendered to C.M., Empire states:

We examined the Health Care Parity Act of 2008. The Final Rule issued by the Department of Labor states, "Applicability date. The mental health parity provisions of these final regulations apply to group health plans and health insurance issuers for plan years (or, in the individual market, policy years) beginning on or after July 1, 2014."

Empire is implementing the required changes to the group contracts as each group renews their contact [sic]. If your employer chooses to renew their contract with Empire, the new benefits will go into effect on January 1, 2015. Until that time, you are governed by the current contract and [residential treatment care] is not covered under the current contract. The denied authorization remains upheld.

We reviewed all your claims for [residential treatment care]. We see that payment was issued on some of these claims in error. Under separate cover(s), we will be sending you refund requests for those payments that were sent to you in error.

(Id. at 000506)

C.M.'s mother again appealed the denial of benefits. (See id. at 000509; Def. R. 56.1 Counterstmt. (Dkt. No. 63) ¶ 19) In a December 17, 2014 letter, Empire again denied the request for benefits for C.M.'s treatment at Logan River. (Pltf. R. 56.1 Counterstmt. (Dkt. No. 67-1) ¶ 57; Genovese Decl., Ex. C (Administrative Record) (Dkt. No. 58-3) at 000509) Empire's letter states:

We sent you a letter with our final coverage decision for this matter on October 28, 2014. It includes information about any additional rights that may be available to you.

On the issue of our interpretation of the Health Care Parity Act of 2008, when we implemented the Act, we were guided by the regulations issued in 2010. With respect to whether plans were required to provide coverage for residential treatment centers, the regulations indicated that they were not going to address "scope of services" (i.e., whether plans had to provide coverage for every type of provider) and instead asked for comments to inform them of how to address it in the final regulations. Accordingly, residential treatment centers were allowed to be excluded. The pertinent paragraphs in the preamble that discuss this say (Pages 5416 & 5417):

The Departments received many comments addressing an issue characterized as "scope of services" or "continuum of care". Some commenters requested, with respect to a mental health condition or substance use disorder that is otherwise covered, that the regulations clarify that a plan is not required to provide benefits for any particular treatment or treatment setting (such as counseling or non-hospital residential treatment) if benefits for the treatment or treatment setting are not provided for medical/surgical conditions. Other commenters requested that the regulations clarify that a participant or beneficiary with a mental health condition or substance use disorder have coverage for the full scope of medically appropriate services to treat the condition or disorder if the plan covers the full scope of medically appropriate services to treat medical/surgical conditions, even if some treatments or treatment settings are not otherwise covered by the plan. Other commenters requested that MHPAEA [ (the Mental Health Parity and Addiction Equity Act of 2008) ] be interpreted to require that group health plans provide benefits for any evidence based treatment.

"The Departments recognize that not all treatments or treatment settings for mental health conditions or substance use disorders correspond to those for medical/surgical conditions. The Departments also recognize that MHPAEA prohibits plans and issuers from imposing treatment limitations on mental health and substance use disorder benefits that are more restrictive than those applied to medical/surgical benefits. These regulations do not address the scope of services issue. The Departments invite comments on whether and to what extent MHPAEA addresses the scope of services or continuum of care provided by a group health plan or health insurance coverage."

The final regulations, which were issued on November 13, 2013, do address scope of services. Accordingly, for plan years beginning on or after July 1, 2014, plans will need to determine whether residential treatment coverage will now be considered a covered benefit.

Your group did not have coverage for Residential Treatment Centers in 2014. We are upholding our prior determination. Your grievance rights with Empire are exhausted. This is our final decision.

(Id. at 000509-10)

In a December 29, 2014 letter to C.M., Empire stated:

The medical management department is in receipt of a request to review residential services provided by Logan River Academy for the above-named member. We are unable to authorize the dates of service beginning July 9, 2014 inclusive for the following contractual reasons: ... The requested service(s) are excluded from the member's contract (please refer to the exclusion section of your benefit plan description).

(Id. at 000314)

* * * *

This action was filed on July 15, 2016. Pending before the Court are the parties' cross-motions for summary judgment. (Mots. (Dkt. Nos. 56, 57) )

DISCUSSION

I. LEGAL STANDARDS

A. ERISA Standard of Review

"It is appropriate to consider a challenge under ERISA to the denial of ... benefits as a summary judgment motion reviewing the administrative record." Suarato v. Building Services 32BJ Pension Fund, 554 F.Supp.2d 399, 414-15 (S.D.N.Y. 2008) (citing Muller v. First Unum Life Ins. Co., 341 F.3d 119, 124 (2d Cir. 2003) ).

"[A] denial of benefits challenged under [ERISA] must 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, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). Where the plan grants such discretionary authority, courts "will not disturb the administrator's ultimate conclusion unless it is 'arbitrary and capricious.' " Hobson v. Metropolitan Life Ins. Co., 574 F.3d 75, 82 (2d Cir. 2009). "The plan administrator bears the burden of proving that the deferential standard of review applies." Fay v. Oxford Health Plan, 287 F.3d 96, 104 (2d Cir. 2002) (citing Kinstler v. First Reliance Standard Life Ins. Co., 181 F.3d 243, 249 (2d Cir. 1999) ).

"Under the arbitrary and capricious standard of review, [a court] may overturn an administrator's decision to deny ERISA benefits 'only if it was without reason, unsupported by substantial evidence or erroneous as a matter of law.' " Hobson, 574 F.3d at 83 (quoting Pagan v. NYNEX Pension Plan, 52 F.3d 438, 442 (2d Cir. 1995) ). "Substantial evidence 'is such evidence that a reasonable mind might accept as adequate to support the conclusion reached by the [decision maker and] ... requires more than a scintilla of evidence but less than a preponderance.' " Miller v. United Welfare Fund, 72 F.3d 1066, 1071 (2d Cir. 1995) (alterations in original) (quoting Sandoval v. Aetna Life & Cas. Ins. Co., 967 F.2d 377, 382 (10th Cir. 1992) ). "This scope of review is narrow," Hobson, 574 F.3d at 83, and " '[a]bsent a showing of bad faith or arbitrariness, the court will not disturb [the administrator's] interpretations of [the] plan as long as they are consistent with the plan's terms and purpose.' " Sansevera v. DuPont de Nemours & Co., 859 F.Supp. 106, 112 (S.D.N.Y. 1994) (quoting Seff v. NOITU Ins. Trust Fund, 781 F.Supp. 1037, 1040 (S.D.N.Y. 1992) ). Indeed, where both parties "offer rational, though conflicting, interpretations of plan provisions, the [administrator's] interpretation must be allowed to control." Pulvers v. First UNUM Life Ins., Co., 210 F.3d 89, 92-93 (2d Cir. 2000).

Moreover, "a district court's review under the arbitrary and capricious standard is limited to the administrative record." Miller, 72 F.3d at 1071 ; Bergquist v. Aetna U.S. Healthcare, 289 F.Supp.2d 400, 411 (S.D.N.Y. 2003) ("The Court must limit its examination of evidence to the administrative record [and information available to the plan administrator at the time it made its decision] when reviewing administrative decisions under the arbitrary and capricious standard."). The court is " 'not free to substitute [its] own judgment for that of [the plan administrator] as if [it] were considering the issue of eligibility anew.' " Hobson, 574 F.3d at 83-84 (2d Cir. 2009) (quoting Pagan, 52 F.3d at 442 ).

Here, the parties agree that the Plan grants Empire discretionary authority to interpret the terms of the Plan and to administer the Plan. (See Pltf. R. 56.1 Counterstmt. (Dkt. No. 67-1) ¶ 37) The Plan expressly provides that

[Empire] may develop or adopt standards which describe in more detail when we will or will not make payments under this Contract and administrative rules pertaining to Group eligibility and enrollment and other administrative matters. We shall have all the powers necessary or appropriate to enable us to carry out our duties in connection with the administration of this Contract, including, without limitation thereto, the power to construe this Contract, to determine all questions arising under this Contract, and to make and establish (and thereafter change) rules and regulations and procedures with respect to this Contract. If you or a Covered Person have a question about the standards which apply to a particular benefit or the Group administrative rules, you or the Covered Person may contact us and we will explain the standards or rules.

(Genovese Decl., Ex. C (Administrative Record) (Dkt. No. 58-3) at 000073-74) Accordingly, the arbitrary and capricious standard governs this Court's review of Empire's interpretation of the Plan.

To the extent that Empire's compliance with applicable statutes and regulations is at issue, however, Empire's views are entitled to no deference. See Wilkins v. Mason Tenders Dist. Council Pension Fund, 445 F.3d 572, 581 (2d Cir. 2006) (Where the question presented "is simply one of statutory interpretation[,]" courts "owe the plan administrators no deference."). Rather, " '[t]he interpretation of ... a federal statute[ ] is a question of law subject to de novo review.' " Id. (quoting Burke v. Kodak Ret. Income Plan, 336 F.3d 103, 111 (2d Cir. 2003) ).

B. The Parity Act

"Congress enacted the [Mental Health Parity and Addiction Equity Act of 2008 (the "Parity Act") ] to end discrimination in the provision of insurance coverage for mental health and substance use disorders as compared to coverage for medical and surgical conditions in employer-sponsored group health plans." Am. Psychiatric Ass'n v. Anthem Health Plans, Inc., 821 F.3d 352, 356 (2d Cir. 2016) (citing Coalition for Parity, Inc. v. Sebelius, 709 F.Supp.2d 10, 13 (D.D.C. 2010) ). "Essentially, [the Parity Act requires] ERISA plans [to] treat sicknesses of the mind in the same way that they would a broken bone." New York State Psychiatric Ass'n, Inc. v. UnitedHealth Grp., 980 F.Supp.2d 527, 542 (S.D.N.Y. 2013), aff'd in part, vacated in part, 798 F.3d 125 (2d Cir. 2015). "Although there is no private right of action under the Parity Act, portions of the law are incorporated into ERISA and may be enforced using the civil enforcement provisions in ERISA § 502." Am. Psychiatric Ass'n v. Anthem Health Plans, 50 F.Supp.3d 157, 161 (D. Conn. 2014) (citations omitted), aff'd, 821 F.3d 352 (2d Cir. 2016).

In order to achieve its statutory objective, the Parity Act "requires group health plans and health insurance issuers to ensure that the financial requirements (deductibles, copays, etc.) and treatment limitations applied to mental health benefits be no more restrictive than the predominant financial requirements and treatment limitations applied to substantially all medical and surgical benefits covered by the plan or insurance." New York State Psychiatric Ass'n, Inc. v. UnitedHealth Grp., 798 F.3d 125, 128 (2d Cir. 2015) (citing 29 U.S.C. § 1185a(a)(3)(A) ). The Parity Act also prohibits "separate cost sharing requirements" and "separate treatment limitations that are only applicable with respect to mental health or substance use disorder benefits." See 29 U.S.C. § 1185a(a)(3)(A)(i)-(ii).

The Parity Act defines "treatment limitation" by reference to the scope and duration of treatment. In particular, the " 'term 'treatment limitation' includes limits on the frequency of treatment, number of visits, days of coverage, or other similar limits on the scope or duration of treatment.' " C.M. v. Fletcher Allen Health Care, Inc., No. 5:12 Civ. 108, 2013 WL 4453754, at *2 (D. Vt. Apr. 30, 2013) (quoting 29 U.S.C. § 1185a(a)(3)(B)(iii) ).

The Parity Act directs the Secretaries of Labor, Health and Human Services, and Treasury to "publish and widely disseminate guidance and information for group health plans, participants and beneficiaries ... concerning the requirements of [the Parity Act.]" 29 U.S.C. § 1185a(g) ; see also Pub. L. No. 110-343, 122 Stat. 3765 (2008) (codified as 42 U.S.C. § 300gg-5 ) ("Not later than 1 year after the date of enactment of this Act, the Secretaries of Labor, Health and Human Services, and the Treasury shall issue regulations to carry out the amendments made by subsections (a), (b), and (c)[.]"). Congress provided, however, that the Parity Act's requirements would go into effect on or after October 3, 2009, regardless of whether the agencies promulgated rules. Natalie V. v. Health Care Serv. Corp., No. 15 Civ. 09174, 2016 WL 4765709, at *3 (N.D. Ill. Sept. 13, 2016) (citing Pub. L. No. 110-343, 122 Stat. 3765 (2008) (codified as 42 U.S.C. § 300gg-5 ) ("The amendments made by this section shall apply with respect to group health plans for plan years beginning after the date that is 1 year after the date of enactment of this Act [ (October 3, 2008) ], regardless of whether regulations have been issued to carry out such amendments by such effective date."); Interim Rules Under the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (the "Interim Final Rules"), 75 Fed. Reg. 5410-01, 5411 (Feb. 2, 2010) ("The changes made by [the Parity Act] are generally effective for plan years beginning after October 3, 2009.") ).

1. The Interim Final Rules

In February 2010-four months after the Parity Act took effect in October 2009-the agencies published the Interim Final Rules in the Federal Register. Id. at *4 (citing 75 Fed. Reg. 5410-01 ; 29 C.F.R. § 2590.712 (2010) ) The Interim Final Rules went into effect on April 5, 2010, and remained in effect until they were replaced with the Final Rules, which went into effect in 2014. See Interim Final Rules, 75 Fed. Reg. at 5410; 29 C.F.R. § 2590.712 (2010). The Interim Final Rules applied to group health plans "for plan years beginning on or after July 1, 2010." See Interim Final Rules, 75 Fed. Reg. at 5410.

The Interim Final Rules apply the parity requirements "on a classification-by-classification basis" ( id. at 5412 ), and establish six "classifications of benefits" for determining Parity Act compliance: (1) inpatient, in-network; (2) in-patient, out-of-network; (3) outpatient, in-network, (4) outpatient, out-of-network; (5) emergency care; and (6) prescription drugs. 29 C.F.R. § 2590.712(c)(2)(i)-(ii)(A) (2010). "While the regulations left it to group health plans to define, for example, 'inpatient, outpatient, and emergency care,' they ... mandate that plans apply those terms 'uniformly' for both mental health and medical/surgical benefits." Natalie V., 2016 WL 4765709, at *4 (quoting Interim Final Rules, 75 Fed. Reg. at 5413 ).

Within each classification, group health plans are required to provide the same treatment limitations for mental health and medical surgical benefits-meaning that a group health plan "[can]not apply any ... treatment limitation to mental health ... benefits in any classification that is more restrictive than the ... treatment limitation of that type applied to ... medical/surgical benefits in the same classification." See 29 C.F.R. § 2590.712(c)(2)(i) (2010). Moreover, "if a plan provide[s] any benefits for a mental illness, the group health plan ha[s] to provide those benefits in each classification for which it provide[s] any medical/surgical benefits." Natalie V., 2016 WL 4765709, at *4 (citing 29 C.F.R. § 2590.712(c)(2)(ii)(A) (2010) ; Interim Final Rules, 75 Fed. Reg. at 5413 ).

Under the Interim Rules, treatment limitations include both "quantitative" and "nonquantitative" treatment limitations. Fletcher Allen Health Care, Inc., 2013 WL 4453754, at *2 (citing 29 CFR § 2590.712(a) (2010) ). Quantitative treatment limitations "are expressed numerically (such as 50 outpatient visits per year)." 29 CFR § 2590.712(a) (2010). By contrast, non-quantitative treatment limitations "limit the scope or duration of benefits for treatment under a plan." Id."A permanent exclusion of all benefits for a particular condition or disorder, however, is not a treatment limitation." Id.

The Interim Rules also establish a standard for scrutinizing the validity of non-quantitative treatment limitations:

A group health plan (or health insurance coverage) may not impose a nonquantitative treatment limitation with respect to mental health or substance use disorder benefits in any classification unless, under the terms of the plan (or health insurance coverage) as written and in operation, any processes, strategies, evidentiary standards, or other factors used in applying the nonquantitative treatment limitation to mental health or substance use disorder benefits in the classification are comparable to, and are applied no more stringently than, the processes, strategies, evidentiary standards, or other factors used in applying the limitation with respect to medical surgical/benefits in the classification, except to the extent that recognized clinically appropriate standards of care may permit a difference.

29 C.F.R. § 2590.712 (emphasis added). "In other words, as long as a health insurance company use[s] comparable processes, strategies, evidentiary standards, or other factors when applying treatment limitations to all benefits in a group health plan, that plan [is] Parity Act-compliant." Natalie V., 2016 WL 4765709, at *5. The Interim Final Rules explain that the "no more stringently" language is "included to ensure that any processes, strategies, evidentiary standards, or other factors that are comparable on their face are applied in the same manner to medical/surgical benefits and to mental health or substance use disorder benefits." Interim Final Rules, 75 Fed. Reg. at 5416 (emphasis added). When plans apply treatment limitations to mental health and medical/surgical benefits, "the mere fact of disparate results" does not necessarily result in a violation of the Parity Act, however, so long as "the processes, strategies, evidentiary standards, and other factors" used in applying nonquantitative treatment limitations are applied "in a comparable manner to all benefits." Id.; see also Natalie V., 2016 WL 4765709, at *5.

Although the Interim Rules "provided much needed guidance on 'nonquantitative treatment limitations' ... they left one major issue unaddressed: the extent to which ... the 'scope of services' that a plan offered for mental health conditions had to be on par with those offered for medical/surgical conditions." Natalie V., 2016 WL 4765709, at *5. The agencies noted that

[s]ome commenters requested, with respect to a mental health condition or substance use disorder that is otherwise covered, that the regulations clarify that a plan is not required to provide benefits for any particular treatment or treatment setting (such as counseling or non-hospital residential treatment) if benefits for the treatment or treatment setting are not provided for medical/surgical conditions. Other commenters requested that the regulations clarify that a participant or beneficiary with a mental health condition or substance use disorder have coverage for the full scope of medically appropriate services to treat the condition or disorder if the plan covers the full scope of medically appropriate services to treat medical/surgical conditions, even if some treatments or treatment settings are not otherwise covered by the plan. Other commenters requested that [the Parity Act] be interpreted to require that group health plans provide benefits for any evidence-based treatment.

75 Fed. Reg. at 5416. In response to these comments, the agencies acknowledged that "not all treatments or treatment settings for mental health conditions or substance use disorders correspond to those for medical/surgical conditions." Id. The agencies chose "not [to] address the scope of services issue" in the Interim Final Rules, however, and instead "invite[d] comments on whether and to what extent [the Parity Act] addresses the scope of services [issue]." Id. at 5416-5417.

2. The Final Rules

The Final Rules were published on November 13, 2013. See Final Rules Under the Parity Act of 2008 (the "Final Rules"), 78 Fed. Reg. 68,240 -01 (Nov. 13, 2013) (codified at C.F.R. § 2590.712 (2014) ). The Final Rules had an effective date of January 13, 2014, and they applied to group health plans "beginning on or after July 1, 2014." See id. at 68,240.

The Final Rules retain the Interim Rules' six "classifications," and likewise mandate that "any processes, strategies, evidentiary standards, or other factors used in applying the nonquantitative treatment limitation to mental health ... benefits in the classification are comparable to, and are applied no more stringently than, the processes, strategies, evidentiary standards, or other factors used in applying the limitation with respect to medical/surgical benefits in the [same] classification." 29 C.F.R. § 2590.712(c)(2)(ii)(A), (c)(4)(i) (2014).

The Final Rules also address the "scope of services" issue-i.e., "the types of treatment and treatment settings that are covered by a group health plan or health insurance coverage." 78 Fed. Reg. at 68,246. The agencies noted that

[m]any commenters requested that the Departments clarify how [the Parity Act] affects the scope of coverage for intermediate services (such as residential treatment, partial hospitalization, and intensive outpatient treatment) and how these services fit within the six classifications set forth by the interim final regulations. Some commenters suggested that the final regulations establish what intermediate mental health and substance use disorder services would be analogous to various intermediate medical/surgical services for purposes of the [the Parity Act's] parity analysis. Other commenters suggested that the Departments not address scope of services in the final regulations.

The Departments did not intend that plans and issuers could exclude intermediate levels of care covered under the plan from [the Parity Act's] parity requirements. At the same time, the Departments did not intend to impose a benefit mandate through the parity requirement that could require greater benefits for mental health conditions and substance use disorders than for medical/surgical conditions.

....

Although the interim final regulations did not define the scope of the six classifications of benefits, they directed that plans and issuers assign mental health and substance use disorder benefits and medical/surgical benefits to these classifications in a consistent manner. This general rule also applies to intermediate services provided under the plan or coverage. Plans and issuers must assign covered intermediate mental health and substance use disorder benefits to the existing six benefit classifications in the same way that they assign comparable intermediate medical/surgical benefits to these classifications. For example, if a plan or issuer classifies care in skilled nursing facilities or rehabilitation hospitals as inpatient benefits, then the plan or issuer must likewise treat any covered care in residential treatment facilities for mental health or substance user disorders as an inpatient benefit. In addition, if a plan or issuer treats home health care as an outpatient benefit, then any covered intensive outpatient mental health or substance use disorder services and partial hospitalization must be considered outpatient benefits as well.

These final regulations also include additional examples illustrating the application of the [non-quantitative treatment limitation] rules to plan exclusions affecting the scope of services provided under the plan. The new examples clarify that plan or coverage restrictions based on geographic location, facility type, provider specialty, and other criteria that limit the scope or duration of benefits for services must comply with the [non-quantitative treatment limitation] parity standard under these final regulations.

Id. at 68, 246 -47 (emphasis added).

II. PLAINTIFF'S CLAIM FOR BENEFITS

Plaintiff argues that Empire's denial of benefits for C.M.'s mental health care at Logan River Academy was erroneous because it was based solely on Empire's exclusion of coverage for residential treatment services. (Pltf. Br. (Dkt. No. 57-1) at 9; Pltf. Opp. Br. (Dkt. No. 67) at 2) According to Plaintiff, Empire's residential treatment exclusion violates (1) the Parity Act; and (2) the New York Parity Law. (See Mot. (Dkt. No. 57); Pltf. Br. (Dkt. No. 57-1) )

Empire responds that its denial of benefits for C.M.'s treatment at Logan River Academy is consistent with the Plan's exclusion of coverage for (1) residential treatment services; (2) services where a member does not comply with the Plan's pre-certification requirements; and (3) out-of-network, in-patient mental health care. (Def. Br. (Dtk. No. 59) at 11; Def. Opp. Br. (Dkt. No. 62) at 9) Empire further contends that (1) the Plan's exclusions comply with the Parity Act; and (2) the New York Parity Law does not apply. (See Def. Br. (Dtk. No. 59); Def. Opp. Br. (Dkt. No. 62) )

A. The Plan's Residential Treatment Services Exclusion

Plaintiff seeks benefits for mental health residential treatment services C.M. received at Logan River Academy between July 2014 and December 2014. (See Cmplt. (Dkt. No. 1) ¶¶ 20-24) In denying C.M.'s claim for benefits, Empire repeatedly stated that it was denying coverage because "[r]esidential treatment services are not covered" under the Plan (see Genovese Decl., Ex. C (Administrative Record) (Dkt. No. 58-3) at 000505, 000509-10), and it is undisputed here that the Plan does in fact specifically exclude coverage for "residential treatment services." (See id. at 000334 n. 1, 000089; Def. R. 56.1 Counterstmt. (Dkt. No. 63) ¶ 5)

Plaintiff contends, however, that Empire's exclusion of residential treatment services from coverage under the Plan violates the Parity Act and is impermissible under the Interim Final Rules. (Pltf. Br. (Dkt. No. 57-1) at 5; Pltf. Opp. Br. (Dkt. No. 67) at 4-9) Empire counters that the Interim Final Rules do not address "scope of services," and that therefore Empire was not required to cover residential treatment services. (See Def. Opp. Br. (Dkt. No. 62) at 9-11; Def. Br. (Dkt. No. 59) at 12-14)

As an initial matter, it must be acknowledged that the Parity Act imposed legal obligations on health plans as of October 3, 2009, irrespective of whether the agencies had promulgated regulations. See Pub. L. No. 110-343, 122 Stat. 3765 (2008) (codified as 42 U.S.C. § 300gg-5 ) ("The amendments made by this section shall apply with respect to group health plans for plan years beginning after the date that is 1 year after the date of enactment of this Act [ (October 3, 2008) ], regardless of whether regulations have been issued to carry out such amendments by such effective date[.]"); Interim Final Rules, 75 Fed. Reg. at 5411, 5419 ("The changes made by [the Parity Act] are generally effective for plan years beginning after October 3, 2009."); Final Rules, 78 Fed. Reg. at 68,253 (The Parity Act's "statutory provisions were self-implementing and generally became effective for plan years beginning after October 3, 2009."). While the Parity Act contemplates that agency regulations would provide "guidance and information for group health plans, participants and beneficiaries ... concerning the requirements of [the Parity Act]," 29 U.S.C. § 1185a(g), the Act's requirements are freestanding, and govern regardless of whether the associated regulations address or provide a clear answer to a particular issue. See Natalie V., 2016 WL 4765709, at *7 ("[W]here the [regulations] do not answer a question one way or the other, it is the Parity Act that controls whether a group health plan provided mental health benefits in parity with medical/surgical benefits.");

Craft v. Health Care Serv. Corp., 84 F.Supp.3d 748, 754 (N.D. Ill. 2015) ("The Parity Act is 'self-implementing' and it applied at all times relevant to this case." (citations omitted) ).

Moreover, the Parity Act expressly prohibits treatment limitations on mental health benefits that are "more restrictive than the predominant treatment limitations applied to substantially all medical and surgical benefits," as well as "separate treatment limitations that are applicable only with respect to mental health ... benefits." 29 U.S.C. § 1185a(a)(3)(A). Notably, the Parity Act defines "treatment limitation" to include "limits on the scope or duration of treatment." Id. § 1185a(a)(3)(B)(iii) (emphasis added).

Here, the Plan's exclusion regarding residential treatment services applies across the board, whether a provider is in-network or out-of-network. The exclusion thus precludes members from obtaining benefits for "24-hour supervision and [mental health] care in a non-hospital setting." See Craft, 84 F.Supp.3d at 754. Because (1) residential treatment services are only provided to treat mental health conditions, and (2) there is no corresponding limitation on analogous treatment for medical/surgical conditions, the Plan's residential treatment services exclusion runs afoul of the Parity Act's express requirements. See id. (holding that plaintiff stated a claim for relief under the Parity Act based on a plan's residential treatment services exclusion, because there was no corresponding limitation on treatment of medical conditions); B.D. v. Blue Cross Blue Shield of Georgia, No. 16 Civ. 00099 (DN), 2018 WL 671213, at *10 (D. Utah Jan. 31, 2018) (granting plaintiffs summary judgment because "[t]he practical effect of [Empire's residential treatment services exclusion] is that plaintiffs received less coverage for mental health services than another participant would have received for medical/surgical benefits. This is at odds with the Parity Act's purpose to achieve coverage parity whenever a plan offers both mental health and medical/surgical benefits."); Joseph F. v. Sinclair Servs. Co., 158 F.Supp.3d 1239, 1262 (D. Utah 2016) (granting plaintiff summary judgment because "residential treatment benefits [a]re available only for mental health conditions," and the plan's exclusion of coverage for such services "necessarily imposed a treatment limitation that applies only with respect to mental health conditions[;] [t]his violates the plain language of the Parity Act.").

Empire's contention that the Interim Final Rules authorized group health plans to exclude coverage for mental health residential treatment services is unpersuasive. Nothing in the Interim Final Rules authorizes such an exclusion. See 29 C.F.R. § 2590.712 (2010) ; Interim Final Rules, 75 Fed. Reg. 5410-01. To the contrary, despite public comments requesting that the agencies create an exception for coverage of residential treatment services, the Interim Final Rules expressly declined to address the "scope of services" issue. See Interim Final Rules, 75 Fed. Reg. at 5416-17 (The Interim Final Rules "do not address the scope of services issue."). Instead, the Interim Final Rules request additional public comment, while emphasizing that the Parity Act "prohibits plans ... from imposing treatment limitations on mental health and substance use disorder benefits that are more restrictive than those applied to medical/surgical benefits." See id. at 5417. The agencies' decision to set aside the "scope of services" issue for another day "does not constitute an endorsement of treatment-setting limitations." See Natalie V., 2016 WL 4765709, at *7 ; Craft, 84 F.Supp.3d at 756 (rejecting Empire's due process defense because "[i]t would be a stretch to conclude from the Departments' request for comments that it was authorizing issuers to enforce treatment-setting limitations. The[ ] [agencies] simply were not prepared to issue guidance at that time.").

Moreover, the Interim Final Rules confirm that "the parity requirements in the statute apply to both quantitative and nonquantitative treatment limitations," see Interim Final Rules, 75 Fed. Reg. at 5412 ; 29 C.F.R. § 2590.712(a) (2010) ("Treatment limitations include both quantitative treatment limitations ... and nonquantitative treatment limitations."), and they define "nonquantitative treatment limitations" as limitations on the "scope or duration of benefits for treatment under a plan or coverage." See 29 C.F.R. § 2590.712(a) (2010) (emphasis added). The Interim Final Rules also provide that where a plan provides benefits for a mental health condition, the plan must provide benefits for that mental health condition in every classification in which medical/surgical benefits are provided-meaning that an exclusion for mental health benefits from a classification for which medical/surgical benefits are provided would constitute a treatment limitation. See id. § 2590.712(c)(2)(ii)(A) ; Interim Final Rules, 75 Fed. Reg. at 5413. The Interim Final Rules explain that this is so because the exclusion of mental health benefits "in a classification (such as outpatient, in-network) in which it provides medical/surgical benefits ... [constitutes] a limit, at a minimum, on the type of setting or context in which treatment is offered." Interim Final Rules, 75 Fed. Reg. at 5413 (emphasis added). Thus, the Interim Final Rules make clear that separate limitations on the scope of treatment and treatment settings-applied only to mental health benefits-are impermissible. See Natalie V., 2016 WL 4765709, at *7 ("The [Interim Final Rules] gave group health plan insurers ... a heads-up that limitations on treatment settings were subject to the Parity Act."); Craft, 84 F.Supp.3d at 757 ("There was a foreseeable risk ... that a court might construe the statute to impose parity with respect to limitations on treatment settings.").

The Court concludes that Empire's residential treatment services exclusion violates the Parity Act, and that accordingly Empire's denial of benefits cannot be justified based on this exclusion.

B. The Plan's Pre-Certification Requirement and Coverage Exclusion for Out-of-Network In-Patient Mental Health Care

Empire asserts two alternative bases to justify its denial of benefits: (1) Plaintiff's failure to comply with the Plan's pre-certification requirement; and (2) the Plan's coverage exclusion for out-of-network in-patient mental health care. (See Def. Opp. Br. (Dkt. No. 62) at 8-9; Def. Br. (Dkt. No. 59) at 11) Empire did not assert these grounds in its final letters denying C.M.'s claim for benefits. (See Genovese Decl., Ex. C (Administrative Record) (Dkt. No. 58-3) at 000505-06, 000509-10) Accordingly, Plaintiff argues that Empire has waived these arguments. (See Pltf. Opp. Br. (Dkt. No. 67) at 3; Mar. 19, 2018 Pltf. Ltr. (Dkt. No. 77) )

1. Waiver

ERISA obligates a plan administrator to:

(1) provide adequate notice in writing to any participant or beneficiary whose claim for benefits under the plan has been denied, setting forth the specific reasons for such denial, written in a manner calculated to be understood by the participant, and

(2) afford a reasonable opportunity to any participant whose claim for benefits has been denied for a full and fair review by the appropriate named fiduciary of the decision denying the claim.

29 U.S.C. § 1133. Department of Labor regulations make clear that when a claim for benefits is denied, the plan administrator must explain in writing "[t]he specific reason or reasons for the adverse determination"; must "[r]efer[ ] to specific plan provisions on which the determination is based"; must set forth "any additional material or information necessary for the claimant to perfect the claim and an explanation of why such material or information is necessary"; must describe "the plan's review procedures"; and "[i]n the case of an adverse benefit determination by a group health plan ... [must specify the] rule, guideline, protocol, or other similar criterion ... relied upon in making the adverse determination." 29 C.F.R. § 2560.503-1(g).

The notice requirement serves two purposes: (1) "notice can provide the member with information necessary for him or her to know what he or she must do to obtain the benefit"; and (2) "if the [plan administrator] persists in its denial, notice can enable the member effectively to protest that decision," and prepare " 'for further administrative review or an appeal to the federal courts.' " See Juliano v. Health Maint. Org. of New Jersey, Inc., 221 F.3d 279, 287 (2d Cir. 2000) (quoting DuMond v. Centex Corp., 172 F.3d 618, 622 (8th Cir. 1999) ). Courts should " 'not permit ERISA claimants denied the timely and specific explanation to which the law entitles them to be sandbagged by after-the-fact plan interpretations devised for purposes of litigation.' " Id. (quoting Marolt v. Alliant Techsystems, Inc., 146 F.3d 617, 620 (8th Cir. 1998) ); see also Martin v. Hartford Life & Acc. Ins. Co., 478 Fed.Appx. 695, 698 (2d Cir. 2012) ("To the extent that [the plan administrator] now offers a different rationale for its denial of [plaintiff's] claim after the completion of the claim's administrative review, [the plan administrator] failed to provide [plaintiff] with the 'adequate notice ... setting forth the specific reasons for such denial' and the 'full and fair review' to which she is entitled." (quoting 29 U.S.C. § 1133 ) ). Accordingly, while "substantial compliance" with the regulations will suffice to meet Section 1133's mandate of "full and fair review," "substantial compliance" requires that "[a] written notice of denial ... be comprehensible and provide the claimant with the information necessary to perfect her claim," see Burke v. Kodak Ret. Income Plan, 336 F.3d 103, 107 (2d Cir. 2003), facilitate "meaningful dialogues between plan administrators and plan members," and permit effective review. See Juliano, 221 F.3d at 288 ; Cook v. New York Times Co. Long-Term Disability Plan, No. 02 Civ. 9154 (GEL), 2004 WL 203111, at *6 (S.D.N.Y. Jan. 30, 2004) (citations omitted).

Where a plan administrator raises new arguments in federal court that it did not present during the administrative process, a court must consider how the waiver doctrine applies. Lauder v. First Unum Life Ins. Co., 284 F.3d 375, 381 (2d Cir. 2002) is instructive on this point.

In Lauder, the insurer denied plaintiff's disability claim, "relying on the defense of lack of coverage," finding that plaintiff had ceased "active employment" the day be