     Case: 19-50276       Document: 00515416064    Page: 1    Date Filed: 05/14/2020




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                       United States Court of Appeals
                                                Fifth Circuit

                                                                     FILED
                                                                  May 14, 2020
                                    No. 19-50276                  Lyle W. Cayce
                                                                       Clerk

KATHERINE P.,

             Plaintiff - Appellant

v.

HUMANA HEALTH PLAN, INCORPORATED,

             Defendant - Appellee




                   Appeal from the United States District Court
                        for the Western District of Texas


Before KING, COSTA, and HO, Circuit Judges.
JAMES C. HO, Circuit Judge:
      To   treat    her    eating   disorder,   Katherine    P.   received   partial
hospitalization treatment—intensive treatment in a hospital setting, but
without an overnight hospital stay—at Oliver-Pyatt Centers for nearly three
months. Her insurer, Humana, agreed to pay for the first twelve days of her
treatment. But it denied coverage for the remainder, concluding that partial
hospitalization was not “medically necessary” as required for coverage under
her health insurance plan. Katherine P. disagreed with Humana’s coverage
decision and brought this action under the Employee Retirement Income
Security Act (ERISA), 29 U.S.C. § 1132(a)(1)(B).             On cross-motions for
     Case: 19-50276      Document: 00515416064         Page: 2    Date Filed: 05/14/2020



                                      No. 19-50276
summary judgment, the magistrate recommended that the district court enter
judgment for Humana. The district court accepted the recommendation.
       We review ERISA claims such as this one under the framework set forth
in Ariana M. v. Humana Health Plan of Texas, Inc., 884 F.3d 246 (5th Cir.
2018) (en banc). That is, we limit our review of the coverage decision to the
administrative record, and we apply de novo review unless the insurance plan
“lawfully delegates discretionary authority to the plan administrator.” See id.
at 247, 256. Since neither party seriously contends that there was such a
lawful delegation, de novo review is proper.1
       There is an open question whether it is appropriate to resolve ERISA
claims subject to de novo review on summary judgment, or whether the district
court should conduct a bench trial. See Koch v. Metro. Life Ins. Co., 425 F.
Supp. 3d 741, 746–47 (N.D. Tex. 2019) (canvassing the different approaches).
But the parties assumed that summary judgment was proper here. So we do
not reach the issue, instead deciding this appeal using normal summary
judgment standards. See Khoury v. Grp. Health Plan, Inc., 615 F.3d 946, 951
n.4 (8th Cir. 2010) (“We decline to decide the propriety of the use of summary
judgment procedures in this case because the issue was not raised by the
parties.”). Under those standards, there is a genuine dispute of material fact
precluding summary judgment. Accordingly, we vacate and remand for further
proceedings.
                                             I.
       The central dispute between the parties is whether further partial
hospitalization was “medically necessary” for Katherine P., as her insurance



       1 Humana says in a footnote that the court should review its decision for an abuse of
discretion because ERISA preempts Texas’s discretionary clause ban. It does not say why,
and so has waived the issue. See Savoie v. Huntington Ingalls, Inc., 824 F.3d 468, 469 (5th
Cir. 2016) (per curiam).
                                             2
    Case: 19-50276     Document: 00515416064      Page: 3   Date Filed: 05/14/2020



                                   No. 19-50276
plan defines the term. Under the plan, “medically necessary” means “health
care services that a health care practitioner exercising prudent clinical
judgment would provide” that are “[i]n accordance with nationally recognized
standards of medical practice,” “clinically appropriate,” “[n]ot primarily for the
convenience of the patient” or her providers, and “[n]ot more costly than an
alternative” that would be just as effective. “Medically necessary” services
must also have a grounding in “standards that are based on credible scientific
evidence.”
      Here, Humana’s reviewers used the Mihalik Criteria to evaluate
Katherine P.’s claim.       The criteria provide four factors for determining if
partial hospitalization is medically necessary.        Per the criteria, partial
hospitalization is medically necessary if a patient meets the first two factors
(denominated ED.PM.1 and ED.PM.2) and either one of the last two
(denominated ED.PM.3 and ED.PM.4).
      The reviewers concluded that Katherine P. failed ED.PM.3 and
ED.PM.4.     ED.PM.3 requires that the patient have “experienced a recent
significant, though not necessarily acute, decline in weight to levels
substantially below healthy body weight which persists despite appropriate
treatment at less intense levels of care.” ED.PM.4 requires the patient to
satisfy three conditions:
      ED.PM.4.1:     That she has “longstanding difficulties [involving
      eating disorder behavior] which place the [patient] at increased
      risk for medical complications, significant weight reduction or use
      of services at a higher level of care;”
      ED.PM.4.2: That “[t]reatment at a less intense level of care has
      been unsuccessful in controlling eating, purging and compulsive
      exercise behavior;”


                                         3
    Case: 19-50276    Document: 00515416064      Page: 4   Date Filed: 05/14/2020



                                 No. 19-50276
      ED.PM.4.3:     That “[t]he structure Partial Hospitalization can
      provide can reduce these behaviors.”
      The district court granted Humana summary judgment, adopting the
magistrate’s conclusion that Katherine P. failed ED.PM.3 and the ED.PM.4.2
sub-criteria. We vacate and remand.
                                       II.
      “We review a district court’s grant of summary judgment in ERISA cases
de novo, applying the same standards as the district court.” Dialysis Newco,
Inc. v. Cmty. Health Sys. Grp. Health Plan, 938 F.3d 246, 250 (5th Cir. 2019).
“Summary judgment is appropriate ‘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.’” Nichols v. Reliance Standard Life Ins. Co., 924 F.3d 802,
808 (5th Cir. 2019) (quoting FED. R. CIV. P. 56(a)).
      Here, Katherine P. argues, inter alia, that the district court erred in
disregarding evidence that Humana’s reviewers were conflicted and in using
the Mihalik Criteria to evaluate her claim. We do not address those issues,
however, because the entry of summary judgment was improper for a different
reason—namely, that the administrative record shows that there is a genuine
dispute about whether Katherine P. met the ED.PM.4.2 sub-criteria.
      To reiterate, ED.PM.4.2 requires that a patient show that “[t]reatment
at a less intense level of care has been unsuccessful in controlling” her eating
disorder. And there is evidence in the administrative record that suggests
Katherine P. satisfied that requirement. For example, in her last appeal to
Humana, Katherine P. provided a declaration describing her history of failed
treatment.    In it, she listed past failed treatment regimens, including
outpatient treatment. Her mother likewise provided a declaration making
essentially the same point.


                                        4
    Case: 19-50276     Document: 00515416064     Page: 5   Date Filed: 05/14/2020



                                  No. 19-50276
      Furthermore, Katherine P.’s physicians said she was “unable to follow a
weight gain meal plan and to abstain from symptoms of purging and restricting
while she was at a lower level of care.” And while the opinions of Katherine
P.’s treating physicians do not receive “special weight,” Black & Decker
Disability Plan v. Nord, 538 U.S. 822, 834 (2003), they are competent summary
judgment evidence.
      That is not to say that all the evidence indicates that Katherine P. met
the ED.PM.4.2 criteria. Her same declaration, for example, shows that she
participated in an eight-week intensive outpatient program in late 2010 that
failed due to external trauma—not because the treatment was ineffective. And
Humana noted that the 2010 treatment was her most recent course of
treatment prior to her admittance to Oliver-Pyatt about a year and a half later.
A factfinder could therefore conclude that Katherine P. failed to show that she
met ED.PM.4.2. See Anderson v. Cytec Indus., Inc., 619 F.3d 505, 512–13 (5th
Cir. 2010) (noting that the claimant bears the burden of proof).
      But the weighing of evidence is for the district court on remand. All that
matters here is that there is a “dispute[] over facts that might affect the
outcome of the suit.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Summary judgment for Humana was therefore inappropriate.
                                      ***
      We limit our ruling to ED.PM.4.2. On remand, the district court may, in
its discretion, decide to treat as established other material facts it determined
in ruling on the summary judgment motions.           See FED. R. CIV. P. 56(g);
Powell v. Radkins, 506 F.2d 763, 765 (5th Cir. 1975). And while we leave the
exact procedures to the district court’s sound discretion, there is authority that
it need not conduct a traditional trial but rather just review the administrative
record and make findings of fact and conclusions of law.           See Kearney v.


                                        5
    Case: 19-50276    Document: 00515416064    Page: 6   Date Filed: 05/14/2020



                                No. 19-50276
Standard Ins. Co., 175 F.3d 1084, 1094–95 (9th Cir. 1999) (en banc) (discussing
that procedure).
      We vacate and remand for proceedings consistent with this opinion.




                                      6
