United States District Court, E.D. Texas, Sherman Division
AMY WHITLEY, INDIVIDUALLY AND AS NEXT FRIEND TO L.K.W.
DR PEPPER SNAPPLE GROUP, INC.
MEMORANDUM OPINION AND ORDER
L. MAZZANT UNITED STATES DISTRICT JUDGE.
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.
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
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).
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).
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).
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.
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).
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).
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).
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.
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 ...