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Whitley v. Dr Pepper Snapple Group, Inc.

United States District Court, E.D. Texas, Sherman Division

May 4, 2017

AMY WHITLEY, INDIVIDUALLY AND AS NEXT FRIEND TO L.K.W.
v.
DR PEPPER SNAPPLE GROUP, INC.

          MEMORANDUM OPINION AND ORDER

          AMOS L. MAZZANT UNITED STATES DISTRICT JUDGE.

         Pending before the Court is Defendant Dr. Pepper Snapple Group, Inc.'s Motion for Summary Judgment (Dkt. #32). Having considered the pleadings, the Court finds that the motion should be granted in part and denied in part.

         BACKGROUND

         In September 2015, Plaintiff's minor son, L.K.W., was diagnosed with autism spectrum disorder. Plaintiff alleges that her employer, Defendant Dr. Pepper Snapple Group, Inc. (“Dr. Pepper”), discriminated and retaliated against her in violation of the Americans with Disabilities Act of 1990 (“ADA”) after it denied coverage for Applied Behavior Analysis Treatment (“ABA Treatment”), a form of therapy for autism spectrum disorder.[1]

         Plaintiff and her minor son, L.K.W., are insured under the Dr. Pepper Snapple Group, Inc. Health Plan (the “Plan”). United Healthcare, Inc. (“United”) serves as the Claims Administrator with respect to the Plan (Dkt. #32, Exhibit 2 at ¶ 2-3). Benefits under the Plan are determined pursuant to the effective plan document (the “Plan Document”) and the effective summary plan description (the “Summary Plan Description”) (Dkt. #32, Exhibit 1 at ¶ 7).

         Dr. Pepper amended and restated the Plan Document effective January 1, 2013 and has not restated the Plan Document since then (Exhibit 4-A at p. 1). The Plan Document does not contain any reference to ABA Treatment. The 2013 Summary Plan Description effective January 1, 2013 through December 31, 2015 governs all claims submitted during that period (Dkt. #32, Exhibit 4 at ¶ 14). The 2013 Summary Plan Description does not contain any reference to ABA Treatment (Dkt. #32, Exhibit 4-C). Specifically, “Section X UHC Standard Coverage Plan Option Schedule of Exclusions, ” does not list ABA Treatment as one of the “Mental Health/Substance Abuse Services” excluded from coverage (Dkt. #32, Exhibit 4C at pp. 75-76). The 2013 Summary Plan Description states, “vocational rehabilitation training is not a Covered Expense.” (Dkt. #32, Exhibit 4-C at p. 65.) The 2013 Summary Plan Description also includes a “Miscellaneous Exclusions” provision that excludes coverage for “Health Services and Supplies that do not meet the definition of a Covered Expense” (Dkt. #32, Exhibit 4-C at p. 79).

         On September 3, 2015, Plaintiff met with Mary McClure (“McClure”), from Dr. Pepper's Human Resources department, to discuss whether the Plan covered ABA Treatment (Dkt. #3 at ¶ 6.5). Plaintiff had a copy of the 2013 Summary Plan Description (Dkt. #3 at ¶ 6.4). McClure stated that the Plan would not cover ABA Treatment because the 2013 Summary Plan Description states that “vocational rehabilitation training is not a Covered Expense.” See Dkt. #32, Exhibit 4- C at p. 65. Plaintiff alleges that attorneys for Dr. Pepper likewise informed her that the 2013 Summary Plan Description excluded coverage for ABA Treatment under “Miscellaneous Exclusions” for “Health Services and Supplies that do not meet the definition of a Covered Expense” (Dkt. #3 at ¶ 6.5).

         Plaintiff alleges that since September 2015, she received conflicting information from Dr. Pepper and United regarding why ABA Treatment was a purported exclusion (Dkt. #3 at ¶ 6.5). As a result, Plaintiff filed a preservice claim for ABA Treatment with United and asked United to send her a description of the specific exclusions for autism spectrum disorder in the Plan (Dkt. #35, Exhibit A at p. 4). In January 2016, Plaintiff emailed McClure requesting a copy of the Summary Plan Description containing an ABA Treatment exclusion. On January 12, 2016, McClure sent Plaintiff a draft 2015 Summary Plan Description that explicitly excluded coverage for “intensive behavioral therapies such as applied behavioral analysis for Autism Spectrum Disorders.” (Dkt. #3 at ¶ 6.5). Plaintiff inquired why the draft 2015 Summary Plan Description was different from the 2013 Summary Plan Description. On January 20, 2016, Lorie Christopher (“Christopher”), Dr. Pepper's Human Resources Director, informed Plaintiff that the 2015 Summary Plan Description was only a draft and Dr. Pepper would be adding an ABA Treatment exclusion to the 2016 Summary Plan Description (Dkt. #35 at p. 7). Christopher informed Plaintiff that the 2013 Summary Plan Description was still in effect and that it did not provide coverage for ABA Treatment because it fell under “vocational therapy, ” which the Plan excluded. On January 20, 2016, Plaintiff received a letter from United Behavioral Health dated January 8, 2016, stating that coverage was not available for the requested services of ABA Treatment because the plan specifically excluded coverage for ABA Treatment. (Dkt. #35 at p. 8; Dkt. #34, Exhibit 2-A). Plaintiff appealed the claim denial on April 1, 2016. The appeal was denied on April 15, 2016.

         According to Plaintiff, Dr. Pepper's counsel informed her that Dr. Pepper officially amended the 2016 Summary Plan Description to expressly exclude ABA Treatment on or around January 29, 2016. Plaintiff alleges that the 2016 Summary Plan Description was not posted online until on or around May 11, 2016, one day after she filed a second level appeal with United. The 2016 Summary Plan Description states that it took effect January 1, 2016 and governs all claims for services made after January 1, 2016 (Dkt. #32, Exhibit 4 at ¶ 13). The 2016 Summary Plan Description explicitly excludes “intensive behavioral therapies such as applied behavioral analysis for Autism Spectrum Disorder” from coverage under “Section 8, Exclusions, Mental Health/Substance Use Disorder” (Dkt. #32, Exhibit 4-B at p. 68).

         Plaintiff alleges that Dr. Pepper included this provision explicitly excluding coverage for ABA Treatment as a form of discrimination and retaliation for her claim requesting coverage for ABA Treatment. Dr. Pepper responds that the Plan has never approved a claim for ABA Treatment as medical treatment for autism spectrum disorder (Dkt. #32, Exhibit 1). David Olsen (“Olsen”), the Director of Benefits for Dr. Pepper states that ABA is not a Covered Expense under the Plan and that the 2016 Summary Plan Description “was edited to make clear that ABA Treatment is not covered under the Plan's terms.” Olsen states that the additional provision was “only intended to clarify the Plan's existing administration, and was not an amendment or change to the Plan's terms or administration.” (Dkt. #32, Exhibit. 1).

         On April 28, 2016, Plaintiff filed her Original Petition in the 417th Judicial District Court for Collin County, Texas (Dkt. #1, Exhibit B). On May 31, 2016, Dr. Pepper removed the case to the Court. (Dkt. #1). On March 3, 2017, Dr. Pepper filed a motion for summary judgment (Dkt. #32). On March 31, 2017, Plaintiff filed a response (Dkt. #35). On April 21, 2017, Dr. Pepper filed a reply (Dkt. #38). On April 28, 2017, Plaintiff filed a sur-reply (Dkt. #39).

         LEGAL STANDARD

         The purpose of summary judgment is to isolate and dispose of factually unsupported claims or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Summary judgment is proper under Rule 56(a) of the Federal Rules of Civil Procedure “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute about a material fact is genuine when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). Substantive law identifies which facts are material. Id. The trial court “must resolve all reasonable doubts in favor of the party opposing the motion for summary judgment.” Casey Enters., Inc. v. Am. Hardware Mut. Ins. Co., 655 F.2d 598, 602 (5th Cir. 1981).

         The party seeking summary judgment bears the initial burden of informing the court of its motion and identifying “depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials” that demonstrate the absence of a genuine issue of material fact. Fed.R.Civ.P. 56(c)(1)(A); Celotex, 477 U.S. at 323. If the movant bears the burden of proof on a claim or defense for which it is moving for summary judgment, it must come forward with evidence that establishes “beyond peradventure all of the essential elements of the claim or defense.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). Where the nonmovant bears the burden of proof, the ...


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