M.A. v. Regence BlueCross , 2020 UT App 177 ( 2020 )

2020 UT App 177THE UTAH COURT OF APPEALS
M.A.,
Appellant,
v.
REGENCE BLUECROSS BLUESHIELD OF UTAH,
Appellee.
Opinion
No. 20190885-CA
Filed December 31, 2020
Third District Court, Tooele Department
The Honorable Matthew Bates
No. 180301744
Sara Pfrommer and Kathleen M. McConkie,
Attorneys for Appellant
Timothy C. Houpt and Jessica P. Wilde,
Attorneys for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and JILL M. POHLMAN
concurred.
ORME, Judge:
¶1 Regence BlueCross BlueShield of Utah (Regence) denied
insurance coverage for a two-week biofeedback retraining
program to treat M.A.’s chronic constipation. Following three
internal appeals, in which Regence upheld its denial of coverage
for the treatment, M.A. sued Regence alleging, in relevant part,
breach of the implied covenant of good faith and fair dealing.
The district court granted summary judgment in Regence’s
favor. M.A. appeals, and we affirm.
M.A. v. Regence BlueCross
BACKGROUND1
¶2 M.A. is a beneficiary of a self-funded group health plan
that her husband’s employer, Granite School District, sponsors.
The school district engaged Regence to act as the administrator
of the plan. An administrative services contract (the ASC)
governs the relationship between Regence and the school
district. The ASC delegates to Regence the authority to process
claims and interpret the plan on the school district’s behalf,
while the school district retains ‚the final responsibility and
liability for payment of all benefits under the [plan+.‛
Additionally, the ASC provides that the school district ‚may
choose to delegate to Regence the discretionary authority to
administer and make appeals decisions for all, some, or none of
the member appeal levels.‛
¶3 Under the plan, with the exception of certain preventative
care, ‚[t]o be covered, medical services and supplies must be
Medically Necessary for the treatment of an Illness or Injury.‛
Regence encourages beneficiaries of the plan to seek
pre-authorization ‚to determine Medical Necessity prior to
services being rendered.‛ To assist in its determination of
whether a requested service is medically necessary, Regence
typically requests the beneficiary’s medical records.
¶4 In June 2017, the Mayo Clinic sent Regence a
pre-authorization request in which it diagnosed M.A. with
‚*c+hronic constipation secondary to pelvic floor dysfunction‛
and requested that Regence authorize a ‚two-week pelvic
retraining program‛ during which M.A. would ‚learn the
1. ‚In reviewing a district court’s grant of summary judgment,
we view the facts and all reasonable inferences drawn therefrom
in the light most favorable to the nonmoving party and recite the
facts accordingly.‛ Ockey v. Club Jam, 2014 UT App 126, ¶ 2 n.2,
328 P.3d 880 (quotation simplified).
20190885-CA 2 2020 UT App 177M.A. v. Regence BlueCross
techniques and undergo biofeedback therapy[2] to optimize
pelvic floor muscle function during defecation.‛
¶5 Regence applies criteria listed under the Biofeedback
Allied Health Policy Number 32 (the Biofeedback Criteria) in
determining whether biofeedback treatment is medically
necessary. Per the Biofeedback Criteria, ‚up to six biofeedback
sessions over three months‛ may be medically necessary for
adults suffering from ‚Dyssynergia-type constipation‛3 when
three criteria are met:
1. Symptoms of functional constipation that
meet all (a–c) of the following ROME III
criteria:
a. Two or more of the following
symptoms (i–vi) have been present
for the past three months, with
symptom onset at least six months
prior to diagnosis:
2. ‚Biofeedback is a technique *patients+ can use to learn to
control some of *their+ body’s functions, such as . . . heart rate.
During biofeedback, [patients are] connected to electrical sensors
that help [them] receive information about *their+ body.‛
Biofeedback, Mayo Clinic, https://www.mayoclinic.org/tests-
procedures/biofeedback/about/pac-20384664 [https://perma.cc/
C5LW-KEG8+. It is ‚used to help manage‛ constipation and
many other ‚physical and mental health issues.‛ Id.
3. Pelvic floor muscles ‚must relax in a coordinated manner
. . . to successfully eliminate stool from [the] rectum,‛ and pelvic
floor dyssynergia is marked by the failure of the muscles to
relax, resulting in constipation. Pelvic Floor Dyssynergia, Stanford
Health Care, https://stanfordhealthcare.org/medical-conditions/
digestion-and-metabolic-health/pelvic-floor-dyssynergia.html [h
ttps://perma.cc/J4T2-3UYW].
20190885-CA 3 2020 UT App 177M.A. v. Regence BlueCross
i. Straining during at least 25%
of defecations
ii. Lumpy or hard stools in at
least 25% of defecations
iii. Sensation of incomplete
evacuation for at least 25% of
defecations
iv. Sensation of anorectal
obstruction/blockage for at
least 25% of defecations
v. Manual maneuvers to facilitate
at least 25% of defecations
(e.g., digital evacuation,
support of the pelvic floor)
vi. Fewer than three defecations
per week
b. Loose stools are rarely present
without the use of laxatives
c. Insufficient criteria for irritable bowel
syndrome
2. Objective physiologic evidence of pelvic
floor dyssynergia when one or both of the
following criteria are met:
a. Inappropriate contraction of the
pelvic floor muscles
b. Less than 20% relaxation of basal
restricting sphincter pressure by
manometry, imaging, or EMG
3. Failed 3-month trial of standard treatments
for constipation including laxatives, dietary
changes, and pelvic floor exercises
¶6 In response to the Mayo Clinic’s pre-authorization
request, Regence wrote the Mayo Clinic and asked for medical
documentation on whether M.A. suffered from ‚dyssynergia
type constipation‛ and whether she met the Biofeedback
20190885-CA 4 2020 UT App 177M.A. v. Regence BlueCross
Criteria, which Regence listed in its letter. The Mayo Clinic
forwarded M.A.’s medical records to Regence the following day.
¶7 Regence denied the requested pre-authorization. In a
letter dated July 21, 2017, Regence informed M.A. that, based on
the determination of a physician who reviewed the request
(Physician Reviewer 1), the requested services were not
medically necessary because
[t]he clinical documentation we received from your
doctor does not clearly show:
 That you have dyssynergia type of
constipation.
 Documentation does not clearly show
functional constipation, or how long it has
been present.
 Objective evidence was not received, and
unclear if you have failed a 3 month trial of
standard treatment for constipation.
This letter, and every subsequent letter of denial, listed the
Biofeedback Criteria in their entirety. The letter also informed
M.A. of Regence’s appeals process, including two levels of
internal appeals followed by an external review by an
independent review organization (IRO). The letter stated that
M.A. could include additional information not previously
considered with each new appeal.
¶8 The Mayo Clinic appealed the denial on M.A.’s behalf.
The appeal included a letter from one of the Mayo Clinic’s
gastroenterology and hepatology specialists (Specialist).
Specialist stated that ‚*i+t was our impression that *M.A.+ has
constipation due to pelvic floor dysfunction‛ and that ‚*t+his
diagnosis was supported by the patient’s symptoms, our clinical
20190885-CA 5 2020 UT App 177M.A. v. Regence BlueCross
findings, and diagnostic tests.‛ Specialist believed that M.A.
‚would benefit considerably from pelvic floor retraining,‛ which
‚is universally accepted as the cornerstone for treating patients
with obstructed defecation.‛ Specialist also included an
academic article that supported biofeedback as a treatment for
constipation but did not forward any additional medical records
concerning M.A.’s condition or its prior treatment.
¶9 In resolving the appeal, a second physician (Physician
Reviewer 2) reviewed M.A.’s medical records to determine
whether the requested treatment was medically necessary.
Physician Reviewer 2 upheld the denial. Specifically, she
determined that (1) the records did not establish that any of the
listed symptoms had been present for the past three months;
(2) the sub-criterion of ‚*i+nappropriate contraction of pelvic
floor muscles‛ was met, thus satisfying criterion 2;4 and (3) the
records did not document a ‚*f+ailed 3-month trial of standard
treatments for constipation.‛ In sum, Physician Reviewer 2
concluded that M.A.’s medical records did not establish that her
symptoms satisfied the first and third requirements of the
Biofeedback Criteria.
¶10 On July 27, 2017, Regence notified M.A. of Physician
Reviewer 2’s decision, stating,
The clinical documentation we received from your
doctor does not clearly show how long your
symptoms have been present and does not
establish that your symptoms meet the ROME III
criteria listed below. In addition, while the
documentation indicates that you have been taking
Senna and Linzess, it is unclear that you have
4. Physician Reviewer 2 also determined that M.A. had not met
sub-criterion 2.b., but criterion 2 requires only that ‚one or both‛
of sub-criteria 2.a. and 2.b. is met.
20190885-CA 6 2020 UT App 177M.A. v. Regence BlueCross
failed a 3-month trial of standard treatments for
constipation including laxatives, dietary change,
and pelvic floor exercises. Your health plan does
not cover services that are not medically necessary.
¶11 In August 2017, M.A. filed her own appeal in which she
provided additional medical records from University of Utah
Healthcare, Utah Gastroenterology, and Wasatch Endoscopy
Center. This time, Regence forwent a second internal review and
instead forwarded the appeal to an IRO. A board-certified
physician in gastroenterology and internal medicine (Physician
Reviewer 3) performed the review.5 Physician Reviewer 3
concluded that ‚*b+ased on the submitted documentation,
biofeedback training with pelvic floor training . . . would not be
medically necessary according to‛ the Biofeedback Criteria.
Specifically, he determined:
Although the patient does have incomplete
evacuation and frequent altered bowel habits, the
nature and frequency is not estimated in the
documentation. Based on the submitted
documentation and medical policy for
dyssynergia-type constipation all criterion are not
met. . . . Biofeedback training is not medically
necessary as criterion . . . 1.a. is not met. The
documentation does not state that the patient has
had straining, lumpy or hard stools, or sensation of
incomplete defecation with at least 25% of
defecations; sensation of anorectal obstruction; or
manual maneuvers to facilitate defecation for at
5. In addition to the review, Physician Reviewer 3 attested,
among other things, that he did ‚not accept compensation that is
dependent in any way on the outcome of the case‛ and that he
‚was not involved with the specific episode of care prior to this
review.‛
20190885-CA 7 2020 UT App 177M.A. v. Regence BlueCross
least 25% of the time or fewer than 3 defecations
per week. The policy criterion . . . 1.b. and c. also
require that the patient have loose stools rarely
without use of laxatives and does not meet criteria
for irritable bowel syndrome. Policy criteria [2.a.
and 2.b.] are also not met as there is no
documentation of inappropriate contractions of the
pelvic floor muscles, or less than measured 20%
relaxation of basal resting sphincter pressure. The
only criterion met is documentation of failure of
three months of standard treatments for
constipation.
Based on this independent review, Regence notified M.A. in a
letter dated August 30, 2017, that the IRO upheld its decision to
deny pre-authorization.
¶12 In February 2018, M.A., through counsel, appealed with
Regence a final time. As part of the appeal, M.A. submitted
letters from several of her treating physicians, including a
second letter from Specialist, dated December 22, 2017. In this
letter, Specialist stated that in his opinion, M.A. ‚has
dyssynergia type constipation,‛ ‚had been afflicted with
functional constipation for at least 36 months,‛ and ‚has failed a
3-month trial of local, standard treatment for constipation.‛ He
concluded, ‚I have reviewed the denial criteria sent to *M.A.+ by
Regence, and it is my professional opinion that she has met each
of the criteria specified there.‛ Regence forwarded this third
appeal to a second IRO for review. A physician certified by the
American Board of Internal Medicine in General Internal
Medicine and Gastroenterology (Physician Reviewer 4) upheld
Regence’s decision. Although Physician Reviewer 4 concluded
that M.A. satisfied the second and third criteria, she determined
that M.A.’s records did ‚not definitively document*+‛ any of the
requisite symptoms listed under the first criterion. Physician
Reviewer 4 also concluded that ‚the provided records do not
clearly document that functional constipation has been ruled
20190885-CA 8 2020 UT App 177M.A. v. Regence BlueCross
out, and therefore the [Biofeedback Criteria] are not met, and the
guidelines and literature do not necessarily support the request
for biofeedback therapy as medically necessary.‛
¶13 In November 2018, M.A. sued Regence in district court,
alleging breach of contract, breach of the covenant of good faith
and fair dealing, and intentional infliction of emotional distress.
Regence moved for summary judgment, which the court granted
following a hearing. The court ruled that the breach of the
covenant of good faith and fair dealing and intentional infliction
of emotional distress claims ‚fail as a matter of law‛ because
‚Regence’s denial of benefits was ‘fairly debatable.’‛ The court
stated that ‚[s]pecifically, Regence relied on the opinions of four
physicians to reach its conclusion that the requested treatment
was not medically necess[ary] under the . . . Biofeedback
Criteria,‛ whereas the letters and medical records M.A.
submitted ‚contained conclusory statements and did not
support the requisite elements and factors in the criteria.‛ The
court also concluded that the breach of contract claim ‚fails
because [M.A.] and Regence have no contract with each other.‛
¶14 M.A. appealed the district court’s decision to the Utah
Supreme Court, which transferred the matter to us for
resolution.
ISSUE AND STANDARD OF REVIEW
¶15 M.A. raises one issue that we address on the merits. 6 She
argues that the district court erred in granting summary
6. M.A. also argues that the district court erred in granting
summary judgment on her breach of contract claim on the
ground that ‚*she+ and Regence have no contract with each
other.‛ She argues that although she ‚is not a direct party to the
[ASC+,‛ she nonetheless had the right to sue for breach of
contract because ‚she is clearly and expressly an intended
(continued…)
20190885-CA 9 2020 UT App 177M.A. v. Regence BlueCross
(…continued)
beneficiary of the contract with respect to the claims review and
appeals process conducted by Regence.‛ See Reperex, Inc. v.
Coldwell Banker Com., 2018 UT 51, ¶ 49, 428 P.3d 1082(‚*T+hird-party beneficiary status [is] an exception to the
requirement of privity.‛) (quotation simplified); Bybee v. Abdulla,
2008 UT 35, ¶ 36, 189 P.3d 40 (‚A third party may claim a
contract benefit only if the parties to the contract clearly express
an intention to confer a separate and distinct benefit on the third
party.‛) (quotation simplified).
But M.A. did not raise this argument below and, thus, it is
not preserved for appeal. Indeed, during the hearing on
Regence’s motion for summary judgment, the court itself raised
the question of whether M.A. was a third-party beneficiary of
the ASC but expressly declined to ‚consider that theory‛
because it ‚was not raised in the briefing.‛ M.A. contends that in
opposing summary judgment, she argued ‚that Regence’s
oversight and responsibility for the claims administration
process created an obligation directly to *her+‛ and that although
she cited unrelated legal authority, she presented a foundation
for the third-party-beneficiary argument that was sufficient to
allow the court to rule on the issue. See Torian v. Craig, 2012 UT
63, ¶ 20, 289 P.3d 479. But an inspection of her memorandum
reveals that M.A. argued only that Regence does not lose ‚any
culpability for bad faith decisions simply because [the school
district+ pays its employees’ medical bills directly.‛ This
assertion did not sufficiently raise her third-party-beneficiary
argument. Accordingly, this issue is not preserved for appeal,
and because M.A. does not ask us to review this issue pursuant
to any of the exceptions to our preservation requirement, we do
not address it further. See State v. Sanchez, 2018 UT 31, ¶ 30, 422
P.3d 866 (stating that for an issue to be preserved for appeal, it
‚must be sufficiently raised to a level of consciousness before the
trial court and must be supported by evidence or relevant legal
authority‛) (quotation simplified).
20190885-CA 10 2020 UT App 177M.A. v. Regence BlueCross
judgment in Regence’s favor on her breach of the implied duty
of good faith and fair dealing claim on the ground that Regence’s
denial of coverage was ‚fairly debatable.‛7 ‚We review a district
court’s grant of summary judgment for correctness and afford no
deference to the court’s legal conclusions.‛ Jones v. Farmers Ins.
Exch., 2012 UT 52, ¶ 6, 286 P.3d 301 (quotation simplified).8
ANALYSIS
¶16 An insurer owes an implied duty of good faith and fair
dealing to an insured.9 Jones v. Farmers Ins. Exch., 2012 UT 52, ¶ 7,
7. M.A. does not appeal the district court’s grant of summary
judgment in Regence’s favor on her intentional infliction of
emotional distress claim.
8. The Jones court also noted that ‚because of the complexity and
variety of the facts upon which the fairly debatable
determination depends,‛ we afford the district court’s decision
‚some deference‛ when that determination is fact intensive.
Jones v. Farmers Ins. Exch., 2012 UT 52, ¶¶ 6, 13, 286 P.3d 301(quotation simplified). And it made this statement in the context
of reviewing a summary judgment. It is difficult to square this
deference with the as-a-matter-of-law determination that typifies
appellate review of summary judgments. But we need not
wrestle with the question here. Even according the district
court’s decision no deference, we readily conclude that it
correctly ruled, as a matter of law, that M.A.’s entitlement to the
requested treatment was fairly debatable.
9. Despite concluding that there was no contractual privity
between M.A. and Regence, the district court addressed M.A.’s
implied duty of good faith and fair dealing argument, which is
based in contract law. Because we affirm the court’s grant of
summary judgment on the ground that M.A.’s claim was fairly
(continued…)
20190885-CA 11 2020 UT App 177M.A. v. Regence BlueCross
286 P.3d 301. The duty ‚contemplates, at the very least, that the
insurer will diligently investigate the facts to enable it to
determine whether a claim is valid, will fairly evaluate the claim,
and will thereafter act promptly and reasonably in rejecting or
settling the claim.‛ Beck v. Farmers Ins. Exch., 701 P.2d 795, 801
(Utah 1985). In the context of first-party insurance claims,10 an
(…continued)
debatable, we need not decide whether Regence, the third-party
administrator of a self-funded group health plan, who is not the
insurer in contractual privity with M.A., owes the contractually
implied duty of good faith and fair dealing to plan beneficiaries.
See Fire Ins. Exch. v. Oltmanns, 2018 UT 10, ¶ 61, 416 P.3d 1148(Durham, J., concurring in part and concurring in the result)
(‚Although in the third-party context an insurer’s breach of its
duties as a fiduciary can expose the insurer to punitive damages
in tort liability, a breach of the implied duty of good faith and
fair dealing in the first-party context only permits remedies in
contract law.‛); Beck v. Farmers Ins. Exch., 701 P.2d 795, 800 (Utah
1985) (‚*I+n a first-party relationship between an insurer and its
insured, the duties and obligations of the parties are contractual
rather than fiduciary. Without more, a breach of those implied or
express duties,‛ including the implied duty to act in good faith,
‚can give rise only to a cause of action in contract, not one in
tort.‛). See also Wolf v. Prudential Ins. Co. of Am., 50 F.3d 793, 797
(10th Cir. 1995) (holding, based on Oklahoma law, that the
determination of whether a third-party administrator owes a
duty of good faith to an insured ‚should focus . . . on the factual
question of whether the administrator acts like an insurer such
that there is a ‘special relationship’ between the administrator
and insured that could give rise to a duty of good faith‛). Thus,
for purposes of this issue, we treat Regence as we would a ‚true‛
insurer in contractual privity with the insured.
10. ‚First-party‛ refers ‚to an insurance agreement where the
insurer agrees to pay claims submitted to it by the insured for
(continued…)
20190885-CA 12 2020 UT App 177M.A. v. Regence BlueCross
insurer acts reasonably in denying a claim ‚if the insured’s claim
is fairly debatable.‛ Prince v. Bear River Mutual Ins. Co., 2002 UT
68, ¶ 28, 56 P.3d 524. This is because if ‚an insured’s claim . . . is
fairly debatable, then the insurer is entitled to debate it and
cannot be held to have breached the implied covenant if it
chooses to do so.‛ Id. (quotation simplified). Thus, even though
an insured’s claim might ultimately be found to be proper, an
insurer has not breached the duty of good faith if, at the time of
denial, the insured’s claim was fairly debatable. Jones, 2012 UT
52, ¶ 7.
¶17 Of course, an insurer will not prevail on summary
judgment simply by asserting that a claim is fairly debatable. Id.
¶¶ 9, 12. ‚An analysis of whether an insurance claim is fairly
debatable is closely related to an analysis of whether an insurer
fulfilled its duty . . . to evaluate the claim fairly.‛ Id. ¶ 12.
Accordingly, ‚*w+hen making the determination of whether a
claim is fairly debatable, a judge should remain mindful of an
insurer’s implied duties to diligently investigate claims, evaluate
claims fairly, and act reasonably and promptly in settling or
denying claims.‛ Id. A claim is therefore fairly debatable as a
matter of law ‚only when there is a legitimate factual issue as to
the validity of the insured’s claim, such that reasonable minds
could not differ as to whether the insurer’s conduct measured up
to the required standard of care.‛ Id. (quotation simplified).
(…continued)
losses suffered by the insured.‛ Beck, 701 P.2d at 798 n.2. ‚In
contrast, a ‘third-party’ situation is one where the insurer
contracts to defend the insured against claims made by third
parties against the insured and to pay any resulting liability, up
to the specified dollar limit.‛ Id. See also Oltmanns, 2018 UT 10,
¶¶ 38–39 (Durham, J., concurring in part and concurring in the
result) (distinguishing the relationship between the insurer and
the insured in the context of first-party and third-party claims).
20190885-CA 13 2020 UT App 177M.A. v. Regence BlueCross
¶18 Here, M.A. argues that when viewing the facts in a light
most favorable to her as the nonmoving party, her request for
pre-authorization was not fairly debatable because her medical
records contradicted Regence’s basis for denying treatment—i.e.,
that she had not established medical necessity by satisfying the
Biofeedback Criteria. She contends that ‚*g+iven the unequivocal
professional opinion of [Specialist] that directly contravened
Regence’s stated basis for the denial, a jury could conclude that
Regence did not act reasonably when it denied coverage.‛ She
further asserts that ‚*t+he fact that Regence utilized the services
of a medical professional—or even more than one medical
professional—in denying [her] coverage does not establish as a
matter of law that Regence’s denial was reasonable, but only that
Regence has access to doctors who will support its initial
conclusions.‛11
¶19 In making these arguments, M.A. relies heavily on
Specialist’s second letter in which he stated that in his
professional opinion, M.A. ‚has dyssynergia type constipation,‛
‚had been afflicted with functional constipation for at least 36
11. M.A. also argues that summary judgment was inappropriate
because ‚there are material facts in dispute as to what
information Regence used to deny *her+ request for coverage.‛
But apart from her heavy reliance on Specialist’s second letter
and a passing and generalized reference to her medical records,
unsupported by citations to the record or any focused discussion
of which specific dates and ‚description of the illness‛ contained
therein would satisfy any of the Biofeedback Criteria, M.A. does
not identify which records, if considered by Regence in denying
her claim, would render its denial of coverage a breach of the
implied covenant of good faith and fair dealing. See Utah R.
App. P. 24(a)(8). And as hereinafter discussed, Specialist’s
second letter—which Specialist wrote after the second appeal
failed—was insufficient, at the very least, to satisfy the first
criterion.
20190885-CA 14 2020 UT App 177M.A. v. Regence BlueCross
months,‛ and ‚has failed a 3-month trial of local, standard
treatment for constipation.‛ The letter concluded with
Specialist’s statement that following his review of ‚the denial
criteria sent to [M.A.] by Regence, . . . it is [his] professional
opinion that she has met each of the criteria specified there.‛
M.A. contends that ‚*w+hen a well-respected expert treating
physician addresses the reasons for denial of coverage point by
point, and informs the insurer that in his professional opinion,
treatment is medically necessary as defined by the insurer’s own
standards, there is an obvious material dispute of fact that makes
summary judgment inappropriate.‛
¶20 The Biofeedback Criteria permitted Regence to approve
‚up to six biofeedback sessions over three months‛ for adults
suffering from ‚*d]yssynergia-type constipation‛ when three
criteria are met. Physician Reviewer 1 initially denied coverage
because (A) the medical records did ‚not clearly show‛ that
M.A. suffered from ‚dyssynergia type of constipation‛; (B) the
records did ‚not clearly show functional constipation, or how
long it has been present‛ (referring to criterion 1);
(C) ‚*o+bjective evidence was not received‛ (referring to criterion
2); and (D) it was ‚unclear if *M.A.+ failed a 3 month trial of
standard treatment for constipation‛ (referring to criterion 3). At
the time of denial, Physician Reviewer 1 did not have access to
Specialist’s second letter when reviewing the Mayo Clinic’s
pre-authorization request. It was not until the third and final
appeal that M.A. provided the letter, dated December 22, 2017,
for Physician Reviewer 4 to consider. Thus, the initial denial and
subsequent two appeals upholding the denial cannot be deemed
unreasonable on the basis that the letter refuted the denials. See
Jones, 2012 UT 52, ¶ 7 (‚An insurer cannot be held to have
breached the covenant of good faith on the ground that it
wrongfully denied coverage if the insured’s claim, although later
found to be proper, was fairly debatable at the time it was
denied.‛) (quotation simplified). And M.A. has not directed us to
the contents of the remaining medical records she made
available to Regence that contradict the physician reviewers’
20190885-CA 15 2020 UT App 177M.A. v. Regence BlueCross
determinations that M.A. had not satisfied the Biofeedback
Criteria.
¶21 In any event, even for purposes of the final IRO appeal,
Specialist’s second letter did not satisfy the first criterion—the
criterion that all four physician reviewers agreed was not even
partially met. The first criterion requires that medical records
show:
1. Symptoms of functional constipation that
meet all (a–c) of the following ROME III
criteria:
a. Two or more of the following
symptoms (i–vi) have been present
for the past three months, with
symptom onset at least six months
prior to diagnosis:
i. Straining during at least 25%
of defecations
ii. Lumpy or hard stools in at
least 25% of defecations
iii. Sensation of incomplete
evacuation for at least 25% of
defecations
iv. Sensation of anorectal
obstruction/blockage for at
least 25% of defecations
v. Manual maneuvers to facilitate
at least 25% of defecations
(e.g., digital evacuation,
support of the pelvic floor)
vi. Fewer than three defecations
per week
b. Loose stools are rarely present
without the use of laxatives
20190885-CA 16 2020 UT App 177M.A. v. Regence BlueCross
c. Insufficient criteria for irritable bowel
syndrome
¶22 Specialist’s second letter did not address any of the
requisite symptoms listed under the first criterion. Instead, it
included the blanket statement that in Specialist’s opinion, M.A.
‚has dyssynergia type constipation.‛ But the Biofeedback
Criteria approved biofeedback treatment for adults suffering
from dyssynergia type constipation if they satisfied the three
criteria. Accordingly, the fact that M.A. suffered from
dyssynergia type constipation alone does not satisfy the first
criterion. Furthermore, without discussion by Specialist of
M.A.’s specific symptoms, it was reasonable for Regence and
Physician Reviewer 4 not to rely on Specialist’s blanket
statement that based on his review of ‚the denial criteria sent to
[M.A.] by Regence,‛ which included the Biofeedback Criteria in
their entirety, ‚it is [his] professional opinion that she has met
each of the criteria specified there.‛
¶23 We therefore agree with the district court that the medical
records and letters M.A. has brought to our attention ‚did not
support the requisite elements and factors in the [Biofeedback
Criteria].‛ Because M.A. has not shown how the medical records
she submitted to Regence contradicted Regence’s claim that her
symptoms did not meet, at the very least, the first criterion of the
Biofeedback Criteria, a ‚legitimate factual issue as to the validity
of *M.A.’s+ claim‛ existed. See Jones, 2012 UT 52, ¶ 12 (quotation
simplified). Accordingly, M.A.’s entitlement to coverage for the
treatment that was the subject of her pre-authorization request
was fairly debatable, and Regence’s denial was therefore
reasonable.
CONCLUSION
¶24 Because M.A. has not directed the district court’s
attention or ours to medical records indicating that she
experienced any of the symptoms listed in the first criterion of
20190885-CA 17 2020 UT App 177M.A. v. Regence BlueCross
the Biofeedback Criteria, it was fairly debatable whether the
requested biofeedback treatment was medically necessary.
Regence therefore did not breach the implied duty of good faith
and fair dealing, as a matter of law, when it denied coverage.
¶25 Affirmed.
20190885-CA 18 2020 UT App 177