and fair review on three occasions with the sparse
documentation that he provided.
B. GUIDELINES FOR REASONABLE AND CUSTOMARY CHARGES
Richstone also cites Doe v. Travelers Ins. Co., 971 F. Supp. 623, 634
(D. Mass. 1997), affirmed in part. reversed in part, 167 F.3d 53 (1st
Cir. 1999), for the proposition that Guardian's failure to provide him
with its guidelines for reasonable and customary charges was arbitrary
and capricious under ERISA. Travelers, however, does not support that
First, Travelers explicitly conditioned a finding of arbitrary and
capricious conduct on a prior request for such guidelines from the
claimant. 971 F. Supp. at 633-34 (citing ERISA,
29 C.F.R. § 2520.102-3). Richstone does not contend, and nothing in
the record suggests, that Richstone made such a request.
Second, Richstone has overlooked the import of the First Circuit's
review of Travelers. In holding that the insurance company did not act
arbitrarily or capriciously in failing to send its guidelines, the court
found that the "guidelines may have been used by Travelers, but Travelers
was not bound to use them, nor did patients have any legal rights under
them. Travelers could consult or disregard this or any other set of . .
. guidelines, medical textbooks, articles, or advisors in making its
judgment." Doe v. Travelers Ins. Co., 167 F.3d 53, 60 (1st Cir. 1999).
Therefore, the fact that Richstone did not receive Guardian's
guidelines for reasonable and customary charges does not amount to
arbitrary or capricious conduct relating to Guardian's review and denial
of Richstone's claims.
C. SUBMISSION OF THE BLOOD TESTS
Richstone further asserts that Guardian was negligent in not supplying
the results of Rodriguez's November blood test to the second and third
peer reviews. He bases his conclusion on a reading of one line in the peer
review report: "If previous lab data were abnormal, this would change my
opinion regarding the above-mentioned labs." (Defendant's Notice of
Motion, Ex. O). In addition, Richstone attempts to draw a negative
inference from the fact that MRI's response to Richstone's subpoena did
not include the blood tests.
The Court finds that, taken as a whole, the record does not support a
material issue of fact regarding Guardian's submission of blood tests.
First, Guardian has submitted an affidavit of its Quality Assurance
Coordinator, Sharon Dash (hereinafter "Dash"). (Affidavit of Sharon
Dash, sworn to May 8, 2000, at ¶ 4). Dash confirms that Guardian
"submitted everything the plaintiff had sent us to the consultant." (Id.)
Furthermore, it would be difficult to conclude that MRI never received
the blood tests because the second peer review refers to the results of
the blood tests throughout its report. (See Defendant's Notice of
Motion, Ex. L). The third and final report of MRI also establishes that
all previously submitted records that were reviewed in the second peer
review, including the blood tests, were again analyzed by MRI in its
final review: "This is a re-review (see previous review #238598, dated
10/24/96). All of the submitted records were reviewed, including an
appeal letter from GR, MD (11/26/96)." (Defendant's Notice of Motion, Ex.
Against these uncontroverted facts, Richstone points to one
inconclusive line: "If previous lab data were abnormal, this would change
my opinion regarding the above mentioned labs." (Id.) Rather than
supporting Richatone's conclusion that the blood tests were not submitted
by Guardian, this statement merely expresses an unfulfilled conditional:
if the test results had been abnormal, a different conclusion might have
been warranted. But this does not prove Richstone's contention that no
blood tests were actually submitted. Again, the record reflects the sworn
testimony of a Guardian employee that all blood tests were submitted, the
discussion of blood tests in the second peer review report and a clear
statement that the final reviewer examined all the documents that had
been submitted to date. In short, Richstone's interpretation of the final
report and his attempt to draw a negative inference fail to overcome the
preponderance of evidence supporting the notion that all of Richstone's
documentation, including the blood tests, were submitted to the peer
Having disposed of Richstone's primary contentions, the Court concludes
that his other arguments similarly fail. Richstone avers that Guardian
also failed to send him a detailed description of the Plan's claim review
procedures and to identify specific Plan provisions on which the denial
was based. These assertions are again addressed by the correspondences
that Guardian sent to Richstone. The EOBs, for instance, specifically
mention that the claims were "reviewed by an independent consultant."
(Defendant's Notice of Motion, Ex. J). When read in conjunction with the
April 10 Letter, the review procedures were adequately outlined: Richstone
was instructed to send all of the medical records relating to his alleged
treatment of Rodriguez which would be submitted along with his claim to
an independent peer review organization. Furthermore, the EOBs and
Guardian's final letter of February 19, 1997 adequately reference the
applicable Plan provisions. Specific reasons are given for the denial of
the claims, and explanations of key terms such as "reasonable charges"
are sufficiently clear. (Id., Exs. J, P). Taken as a whole, these
responses satisfy the standard of "substantial compliance" with §
1133 of ERISA and the regulations thereunder. See Halpin, 962 F.2d at
The factual record convincingly establishes that Guardian attempted to
evaluate Richstone's claims fairly over a period of eleven months and to
grant him multiple opportunities to cure the deficiencies Guardian
identified in Richstone's documentation. The April 10 Letter instructed
Richstone that he was required to send all medical records relating to
Rodriguez's visits in order to validate his claims. The EOBs stated why
Guardian had denied the claims. And Guardian subjected the claims to
three separate independent peer reviews, evidencing its intent to give
Richstone a full and fair hearing. Under the circumstances, Guardian's
decision to deny or to reduce Richstone's claims was not arbitrary or
capricious. Furthermore, Guardian was in complete or, at a minimum,
substantial compliance with all of its obligations under ERISA.
For the reasons set forth above, it is hereby ORDERED, that Guardian's
motion for summary judgment is granted, and the two claims relating to
Rodriguez are hereby dismissed.