     Case: 18-20700      Document: 00515193275         Page: 1    Date Filed: 11/08/2019




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

                                                                            FILED
                                      No. 18-20700                   November 8, 2019
                                                                       Lyle W. Cayce
ARIANA M.,                                                                  Clerk


              Plaintiff - Appellant

v.

HUMANA HEALTH PLAN OF TEXAS, INCORPORATED,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                            U.S.D.C. No. 4:14-CV-3206


Before CLEMENT, HAYNES, and WILLETT, Circuit Judges.
PER CURIAM:*
                                     Background
       This is the second time that this case has reached the Fifth Circuit. Our
previous opinion in Ariana M. v. Humana Health Plan of Texas, Inc., 884 F.3d
246 (5th Cir. 2018) (en banc) (“Ariana M. I”), and the district court’s
Memorandum and Opinion from which plaintiff Ariana M. now appeals discuss
the case’s facts at length, so we will provide only a brief summary.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 18-20700      Document: 00515193275     Page: 2   Date Filed: 11/08/2019



                                  No. 18-20700
      Ariana was partially hospitalized to treat an eating disorder. Her health-
plan administrator, Humana Health Plan of Texas, Inc., approved benefits for
49 days of partial hospitalization, but denied benefits for additional days after
concluding that Ariana’s continued hospitalization was not “medically
necessary.”   Despite    Humana’s     decision,   Ariana    remained     partially
hospitalized for another 106 days.
      Ariana then sued Humana under 29 U.S.C. § 1132(a)(1)(B), alleging that
Humana wrongfully denied her benefits for the additional 106 days. The
district court concluded that Humana had not abused its discretion in denying
coverage for continued hospitalization and granted Humana summary
judgment. After a panel of this court affirmed the district court’s judgment,
this court agreed to rehear the case en banc. See Ariana M. v. Humana Health
Plan of Tex., Inc., 869 F.3d 354 (5th Cir. 2017). A majority of the en banc court
concluded that the district court should have reviewed Humana’s denial of
benefits de novo, so the court vacated the district court’s judgment and
remanded the case for the district court to review it under the proper standard.
See Ariana M. I., 884 F.3d at 257.
      On remand, the district court reviewed the denial of benefits de novo,
concluded that Humana had not erred, and granted Humana summary
judgment. Ariana nonetheless filed a petition for attorneys’ fees under 29
U.S.C. § 1132(g), arguing that her success in convincing this court to change
the standard of review and remand her case to the district court entitled her
to attorneys’ fees regardless of whether she ultimately prevailed on her claim
for benefits. The district court denied her fee petition.
      Ariana now appeals both the grant of summary judgment and the denial
of attorneys’ fees. Concluding that the district court did not err in either
respect, we AFFIRM its judgment.


                                        2
     Case: 18-20700       Document: 00515193275          Page: 3     Date Filed: 11/08/2019



                                       No. 18-20700
                                         Analysis
       We review the district court’s de novo review of the claims
administrator’s factual findings de novo. 1 Green v. Life Ins. Co. of N. Am., 754
F.3d 324, 329 (5th Cir. 2014); Ariana M. I, 884 F.3d at 256. We review the
denial of Ariana’s fee petition for abuse of discretion. N. Cyprus Med. Ctr.
Operating Co. v. Aetna Life Ins. Co., 898 F.3d 461, 485 (5th Cir. 2018).
       Under the Humana plan, Ariana was eligible for partial hospitalization
so long as it was “medically necessary.” To assess medical necessity, Humana
relied on the “Mihalik criteria,” part of a set of guidelines published by a
healthcare consulting firm. 2 After two board-certified psychiatrists reviewed
Ariana’s case and found several required criteria absent during the claimed
treatment period, Humana found that partial hospitalization was not
medically necessary for the final 106 claimed days.
       After reviewing the record, we find that at least one of the Mihalik
criteria had no factual support—an “individualized plan” that “specifies” “time
frames” and “anticipated outcomes.” 3 As such, Humana did not err in finding
that the final 106 days of Ariana’s partial hospitalization were medically
unnecessary, and the district court correctly entered judgment for Humana.
Given that this outcome-determinative finding is undisputed, we need not
address whether the other Mihalik criteria were met.




       1  The district court had federal-question jurisdiction because this ERISA suit arises
under 29 U.S.C. § 1132(a)(1)(B). Ariana appeals from a final judgment, so we have appellate
jurisdiction under 28 U.S.C. § 1291.
        2 Ariana objects to Humana’s use of the Mihalik criteria. The Humana plan requires

that Humana assess medical necessity using nationally recognized standards of medical
practice. But Ariana has not identified any evidence that the Mihalik criteria are inconsistent
with these standards.
        3 In fact, Ariana’s doctors affirmatively stated that there were “no specifics on [the]

time frame” of her partial hospitalization, and the record shows that her entire treatment
plan suffered from a general lack of specificity.
                                              3
     Case: 18-20700    Document: 00515193275     Page: 4   Date Filed: 11/08/2019



                                  No. 18-20700
       The fee petition presents a somewhat more challenging question. In an
ERISA suit like this one, the district court “in its discretion may allow a
reasonable attorney’s fee and costs of action to either party.” 29 U.S.C.
§ 1132(g). The Supreme Court has held that, though a fee claimant need not
qualify as a “prevailing party” to receive a fee award under this statute, the fee
claimant must have “achieved some degree of success on the merits.” Hardt v.
Reliance Standard Life Ins. Co., 560 U.S. 242, 244 (2010) (cleaned up). This
requires more than “trivial success on the merits or a purely procedural
victory,” but does not require “lengthy inquiry into the question of whether a
particular party’s success was substantial or occurred on a central issue.” Id.
at 255 (cleaned up). The Supreme Court expressly declined to decide whether
“a remand order, without more, constitutes ‘some success on the merits.’” Id.
at 256.
       We conclude that the district court did not abuse its discretion in denying
Ariana’s fee motion. While an error of law does constitute an abuse of
discretion, LifeCare Mgmt. Servs. LLC v. Ins. Mgmt. Adm’rs Inc., 703 F.3d 835,
846 (5th Cir. 2013), we see no such error here. The district court described and
applied the “some success on the merits” standard from Hardt. It noted that,
unlike Hardt, the remand order here included no comment from the remanding
court on the strength of the remanded claim. Securing a change in the standard
of judicial review of Humana’s factual determinations is certainly a procedural
success, but it’s not success on the merits of Ariana’s benefits claim. See Ariana
M. I, 884 F.3d at 257 (“A different standard of review will sometimes lead to a
different outcome, but there will also be many cases in which the result would
be the same with deference or without it. We give no opinion on which is the
case here . . . .”).
       In reaching this conclusion, we express no opinion on the First Circuit’s
decision in Gross v. Sun Life Assurance Co. of Canada, 763 F.3d 73 (1st Cir.
                                        4
    Case: 18-20700    Document: 00515193275     Page: 5   Date Filed: 11/08/2019



                                 No. 18-20700
2014). In Gross, a divided panel held that the plaintiff had achieved “some
success on the merits” when a remand order provided her “some meaningful
benefit” by favorably changing the standard of review. Id. at 79. The court
noted that, though its order “refrained from expressing any view on the
ultimate merits of [Gross’s] claim,” “the change in the standard of review has
strengthened Gross’s claim” by “increase[ing] the likelihood of a favorable
benefits determination.” Id. But the court also noted that the administrative
record was “inadequate to permit [the court’s] de novo judgment on [plaintiff’s]
entitlement to benefits.” Id. at 75. The First Circuit “faulted [the plan
administrator] for failing to provide its independent medical consultant with
important background about [plaintiff’s] circumstances on a critical
surveillance day and for disregarding the consultant’s observation” that the
plaintiff should be reexamined. Id. at 76.
      Here, by contrast, the en banc court passed no judgment on the process
Humana used to evaluate Ariana’s claim or whether Humana had failed to
provide its independent reviewers with sufficient evidence. Even if the First
Circuit was correct in finding “some success on the merits” in Gross, Ariana’s
case is distinguishable.
      We therefore AFFIRM the judgment of the district court.




                                       5
