     Case: 16-20174   Document: 00513963194     Page: 1   Date Filed: 04/21/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                 No. 16-20174                           FILED
                                                                    April 21, 2017
                                                                   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


Before PRADO, HIGGINSON, and COSTA, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
      Plaintiff-Appellant Ariana M. challenges Defendant-Appellee Humana
Health Plan of Texas’s denial of coverage for continued partial hospitalization.
After reviewing the administrative record, the district court granted
Defendant’s motion for summary judgment. We AFFIRM.
                                       I.
      Plaintiff is a dependent eligible for benefits under the Eyesys Vision Inc.
group health plan (the “Plan”), which is insured and administrated by
Humana. The Plan’s benefits include coverage for partial hospitalization for
mental health treatment. However, benefits are payable only for treatments
that are “medically necessary.” “Medically necessary” is defined as
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                                 No. 16-20174
            health care services that a health care practitioner
            exercising prudent clinical judgment would provide to
            his or her patient for the purpose of preventing,
            evaluating, diagnosing or treating an illness or bodily
            injury, or its symptoms. Such health care service must
            be:

               • In accordance with nationally recognized
                 standards of medical practice;
               • Clinically appropriate in terms of type,
                 frequency, extent, site and duration, and
                 considered effective for the patient’s illness or
                 bodily injury;
               • Not primarily for the convenience of the patient,
                 physician or other health care provider; and
               • Not more costly than an alternative service or
                 sequence of services at least as likely to produce
                 equivalent therapeutic or diagnostic results as
                 to the diagnosis or treatment of the patient’s
                 sickness or bodily injury.

            For the purpose of medically necessary, generally
            accepted standards of medical practice means
            standards that are based on credible scientific
            evidence published in peer-reviewed medical
            literature generally recognized by the relevant
            medical community, Physician Specialty Society
            recommendations, the views of physicians practicing
            in relevant clinical areas and any other relevant
            factors.

      Plaintiff has a long history of mental illness, eating disorders, and
engaging in self-harm. On April 15, 2013, Plaintiff was admitted to Avalon
Hills’s intensive partial hospitalization program. Partial hospitalization refers
to a level of care in which a patient attends medical programming for
approximately eight hours per day. This form of care is more intensive than
either intensive outpatient or outpatient care.



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                                 No. 16-20174
      Defendant initially found the treatment medically necessary and
approved partial hospitalization through April 19, 2013, ultimately extending
authorization through June 4, 2013, for a total of 49 days. On June 5, 2013,
Defendant denied continued partial hospitalization treatment, finding that it
was no longer medically necessary. In making its determination, Defendant
asked two doctors to review Plaintiff’s medical treatment, using the Mihalik
criteria, a privately licensed review criteria created by the Mihalik Group.
      Plaintiff filed her Complaint on November 7, 2014. On February 12,
2015, Plaintiff filed a motion to determine the standard of review, arguing that
Defendant’s denial of benefits should be reviewed de novo.           Defendant
responded, conceding that de novo review applies to plan term interpretations;
however, Defendant also noted that under Fifth Circuit law, even when de novo
review applies, factual determinations are reviewed for abuse of discretion.
Noting the parties’ agreement, the district court granted Plaintiff’s motion.
Defendant next filed a motion for summary judgment along with the
administrative record. Plaintiff responded. The district court granted the
motion for summary judgment. Plaintiff appealed.
                                      II.
      Plaintiff argues that the district court erred by applying an abuse of
discretion, instead of a de novo, standard to assess Defendant’s factual
determinations. We disagree.
      The Employee Retirement Income Security Act of 1974’s (“ERISA”) text
“does not directly resolve” the question of the appropriate standard of review
of an ERISA plan administrator’s decision to deny plan benefits. Conkright v.
Frommert, 559 U.S. 506, 512 (2010). In Firestone Tire & Rubber Co. v. Bruch,
489 U.S. 101 (1989), the Supreme Court held that “[c]onsistent with
established principles of trust law, . . . a denial of benefits challenged under
[ERISA] is to be reviewed under a de novo standard unless the benefit plan
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                                  No. 16-20174
gives the administrator . . . discretionary authority to determine eligibility for
benefits or to construe the terms of the plan.” Id. at 115. Accordingly, where
an ERISA plan delegates discretionary authority to the plan administrator (a
“discretionary clause”) courts review the plan administrator’s decisions for
abuse of discretion. See, e.g., Barhan v. Ry-Ron Inc., 121 F.3d 198, 201 (5th
Cir. 1997).
      In Pierre v. Connecticut General Life Insurance Co./Life Insurance Co. of
North America, 932 F.2d 1552 (5th Cir. 1991), we interpreted Firestone to “not
require de novo review for factual determinations” and instead found that “an
abuse of discretion standard of review is appropriate” for reviewing a plan
administrator’s factual determinations.     Id. at 1553.    Accordingly, in this
Circuit, “with or without a discretion[ary] clause, a district court rejects an
administrator’s factual determinations in the course of a benefits review only
upon the showing of an abuse of discretion.” Dutka ex rel. Estate of T.M. v. AIG
Life Ins. Co., 573 F.3d 210, 212 (5th Cir. 2009); see also Green v. Life Ins. Co.
of N. Am., 754 F.3d 324, 329 (5th Cir. 2014) (quoting Dutka and noting that
the standard of review for factual determinations is abuse of discretion
regardless of the presence of a discretionary clause).
      Plaintiff argues that Pierre deference does not apply here because
Texas’s anti-discretionary clause law mandates de novo review.             Texas
Insurance Code Section 1701.062(a) provides that “[a]n insurer may not use a
document described by Section 1701.002 [among other things, policies for
health and medical insurance] in this state if the document contains a
discretionary clause.”   Tex. Ins. Code § 1701.062(a).       Under the statute,
discretionary clauses include any provision that “purports or acts to bind the
claimant to, or grant deference in subsequent proceedings to, adverse
eligibility or claim decisions or policy interpretations by the insurer” or
“specifies . . . a standard of review in any appeal process that gives deference
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to the original claim decision or provides standards of interpretation or review
that are inconsistent with the laws of this state, including the common law.”
Tex. Ins. Code § 1701.062(b)(1), (2)(D). 1
       Plaintiff argues that these provisions, taken together, required the
district court to review Humana’s factual findings de novo. We disagree. The
plain text of the statute provides only that a discretionary clause cannot be
written into an insurance policy; it does not mandate a standard of review. As
always, statutory interpretation begins “with the plain language and structure
of the statute.” Coserv Ltd. Liab. Corp. v. Sw. Bell Tel. Co., 350 F.3d 482, 486
(5th Cir. 2003). Texas’s anti-discretionary clause law, by its terms, does not
mandate a standard of review. Instead, it provides only that an insurer “may
not use a document . . . if the document contains a discretionary clause.” Tex.
Ins. Code § 1701.062(a).         That is, Texas’s anti-discretionary clause law
concerns what language can and cannot be put into an insurance contract in
Texas. It does not mandate a specific standard of review for insurance claims.
See Am. Council of Life Insurers v. Ross, 558 F.3d 600, 609 (6th Cir. 2009) (“[It
is not] necessarily the case . . . that, if Michigan can remove discretionary
clauses, it will be allowed to dictate the standard of review for all ERISA
benefits claims. All that today’s case does is allow a State to remove a potential
conflict of interest.”); Curtis v. Metro. Life Ins. Co., No. 15-CV-2328, 2016 WL
2346739, at *10 (N.D. Tex. May 4, 2016) (applying Texas’s anti-discretionary
clause law, but finding that factual findings should be reviewed for abuse of
discretion); Garza v. United Healthcare Ins. Co., No. 16-CV-0853, ECF No. 30
(S.D. Tex. Jan 31, 2017) (same); Unum Life Ins. Co. of Am., v. Mohedano, No.
13-CV-446, 2017 WL 713791, at *5 n.7 (S.D. Tex. Feb. 23, 2017) (“District



       1Texas has also adopted administrative rules that are substantively identical to the
Insurance Code. See 28 Tex. Admin. Code §§ 3.1201-3.1203.
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                                       No. 16-20174
courts continue to follow [Pierre’s] mandate regarding factual determinations
even where the discretionary clause is void.”).
       Accordingly, we find that Texas’s anti-discretionary clause law does not
change this court’s normal Pierre deference. 2
                                             III.
       Plaintiff next argues that the district court erred in granting Defendant
summary judgment even if an abuse of discretion standard applies. Plaintiff
raises two issues. First, she argues that Defendant erred by using the Mihalik
criteria, instead of the raw Plan terms or the American Psychiatric
Association’s Practice Guidelines, to assess medical necessity. Second, she
argues that under any criterion, her continued partial hospitalization was
medically necessary. We disagree.
       “Standard summary judgment rules control in ERISA cases.” Cooper v.
Hewlett-Packard Co., 592 F.3d 645, 651 (5th Cir. 2009) (quoting Vercher v.
Alexander & Alexander Inc., 379 F.3d 222, 225 (5th Cir. 2004)). “We review a
‘district court’s grant of summary judgment de novo, applying the same
standards as the district court.’” Green, 754 F.3d at 329 (quoting Cooper, 592
F.3d at 651). “Summary judgment is appropriate when ‘there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a
matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)). “This court reviews de novo
the district court’s conclusion that an ERISA plan administrator did not abuse



       2 Plaintiff argues that the court should reexamine Pierre. Nonetheless, Plaintiff
concedes that “one panel of this Court cannot overrule another, and that the ultimate
resolution of the issue in this Court would likely require en banc consideration.” Plaintiff is
not alone in her criticism of Pierre; indeed, Pierre has been rejected by most other Circuit
Courts. Moreover, Pierre is likely to become more important as more states adopt anti-
discretionary clause statutes. Under Firestone, courts defer to discretionary clauses in plan
documents. Until states began banning discretionary clauses, Pierre’s impact was limited
because this court was likely to defer to a plan administrator’s factual determination under
the terms of the plan—not under Pierre.
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                                      No. 16-20174
its discretion in denying benefits . . . .” Anderson v. Cytec Indus., Inc., 619 F.3d
505, 511 (5th Cir. 2010). “A plan administrator abuses its discretion if it acts
‘arbitrarily or capriciously.’” Truitt v. Unum Life Ins. Co. of Am., 729 F.3d 497,
508 (5th Cir. 2013) (quoting Meditrust Fin. Servs. Corp. v. Sterling Chems.,
Inc., 168 F.3d 211, 214 (5th Cir. 1999)). “A decision is arbitrary and capricious
only if it is ‘made without a rational connection between the known facts and
the decision or between the found facts and the decision.’”                   Id. (quoting
Meditrust, 168 F.3d at 215). 3 “In addition to not being arbitrary and capricious,
the plan administrator’s decision to deny benefits must be supported by
substantial evidence.” Anderson, 619 F.3d at 512. “Substantial evidence is
more than a scintilla, less than a preponderance, and is such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.” Corry
v. Liberty Life Assurance Co. of Bos., 499 F.3d 389, 398 (5th Cir. 2007) (quoting
Ellis v. Liberty Life Assurance Co. of Bos., 394 F.3d 262, 273 (5th Cir. 2004)).
                                             A.
       Plaintiff contends that the plan administrator should not have used the
Mihalik criteria to determine medical necessity because the criteria were not
mentioned in the Plan’s definition of medical necessity. Plaintiff further
contends that the Mihalik criteria are inconsistent with the Plan’s terms
because they are not consistent with “nationally recognized standards of
medical practice.” We disagree.
       First, the fact that the Plan does not expressly incorporate the Mihalik
criteria does not indicate that their use in the claims adjudication procedure
was improper. Instead, the Mihalik criteria simply provide Defendant’s claims
adjudicators guidance in carrying out the terms of the Plan. Importantly,


       3  This court also considers a plan administrator’s conflict of interest in assessing
whether the plan administrator abused its discretion. Truitt, 729 F.3d at 508. Plaintiff made
a conflict of interest argument below, but no longer presses the argument on appeal.
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nothing in the Mihalik criteria’s definition of medical necessity is inconsistent
with the Plan’s terms as the following table indicates:
         CRITERIA FOR DETERMINING MEDICAL NECESSITY
              Plan Definition                                           Mihalik criteria
[H]ealth care services that a health care                 Intended to identify or treat a behavioral
practitioner    exercising    prudent      clinical       disorder or condition that causes pain or
judgment would provide to his or her patient for          suffering, threatens life, or results in illness as
the purposes of preventing, evaluating,                   manifested     by    impairment        in    social,
diagnosing or treating an illness or bodily injury,       occupational, scholastic, or role functioning.
or its symptoms.
In accordance with nationally recognized                  Consistent with nationally accepted standards of
standards of medical practice.                            medical practice.
Clinically appropriate in terms of type,                  Individualized, specific and consistent with the
frequency, extent, site and duration, and                 individual’s signs, symptoms, history and
considered effective for the patient’s illness or         diagnosis.
bodily injury.
                                                          Reasonably expected to help restore or maintain
                                                          the individual’s health or to improve or prevent
                                                          deterioration in the individual’s behavioral
                                                          disorder or condition.

Not primarily for the convenience of the patient,         Not primarily for the convenience of the
physician or other health care provider.                  individual, provider or another party.
Not more costly than an alternative service or            Provided in the least restrictive setting that
sequence of services at least as likely to produce        balances safety, effectiveness and efficiency.
equivalent therapeutic or diagnostic results as to
the diagnosis or treatment of the patient’s
sickness or bodily injury.


What the Mihalik criteria add to the Plan definition is additional guidance for
determining medical necessity in specific situations. But even these additions
map onto the Plan definition of medical necessity:
       MEDICAL NECESSITY OF PARTIAL HOSPITALIZATION
          Plan Definition            Mihalik criteria
[H]ealth care services that a health care                 PM.A.g.3. The services must be reasonably
practitioner    exercising    prudent      clinical       expected to help restore or maintain the
judgment would provide to his or her patient for          individual’s health, improve or prevent
the purposes of preventing, evaluating,                   deterioration of the individual’s behavioral
diagnosing or treating an illness or bodily injury,       disorder or condition, or delay progression in a
or its symptoms.                                          clinically meaningful way of a behavioral health
                                                          disorder or condition characterized by a
                                                          progressively deteriorating course when that
                                                          disorder or condition is the focus of treatment for
                                                          this episode of care.


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                                          No. 16-20174
In accordance with nationally         recognized         PM.A.g.l. The services must be consistent with
standards of medical practice.                           nationally accepted standards of medical
                                                         practice.
Clinically appropriate in terms of type,                 PM.A.g.2. The services must be individualized,
frequency, extent, site and duration, and                specific, and consistent with the individual’s
considered effective for the patient’s illness or        signs, symptoms, history, and diagnosis.
bodily injury.
                                                         PM.A.g.4. The individual complies with the
                                                         essential elements of treatment.

Not primarily for the convenience of the patient,        PM.A.g.5. The services are not primarily for the
physician or other health care provider.                 convenience of the individual, provider, or
                                                         another party.

                                                         PM.A.g.6. Services are not being sought as a way
                                                         to potentially      avoid legal proceedings,
                                                         incarceration, or other legal consequences.

                                                         PM.A.g.7. The services are not predominantly
                                                         domiciliary or custodial.
Not more costly than an alternative service or           PM.A.g.8. No exclusionary criteria of the health
sequence of services at least as likely to produce       plan or benefit package are met.
equivalent therapeutic or diagnostic results as to
the diagnosis or treatment of the patient’s
sickness or bodily injury.


      The Mihalik criteria further list a number of specific treatment initiation
and treatment continuation criteria, all of which fit comfortably within the
Plan’s definition of medically necessary. For example, the Mihalik criteria
instruct a physician reviewing a request for mental health treatment to
consider, among other things, “[w]ith treatment at this level, the individual is
capable of controlling behaviors and/or seeking professional help when not in
a structured treatment setting[],” and “[i]f the services being proposed have
been attempted previously without significant therapeutic benefit, there is a
clinically credible rationale for why those same services could be effective now.”
These questions simply add context to the Plan’s definition of medically
necessary.
      Importantly, “an insurer’s reliance on a pre-published plan to determine
what is ‘medically necessary’ can be reasonable under ERISA.”                                   Quality
Infusion Care Inc. v. Aetna Life Ins. Co., 257 F. App’x 735, 736 (5th Cir. 2007)

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                                 No. 16-20174
(unpublished) (citing Dowden v. Blue Cross & Blue Shield of Tex., Inc., 126
F.3d 641, 644 (5th Cir. 1997)). And this practice appears to be commonplace.
See, e.g., Love v. Dell, Inc., 551 F.3d 333, 337 (5th Cir. 2008) (“As was
ValueOptions’ policy, its reviewers employed the American Society of Addiction
Medicine, Inc. Patient Placement Criteria for the Treatment of Substance
Related Disorders, Second Edition Revised, in evaluating Love’s claims.”);
Dowden, 126 F.3d at 644 (“Relying upon learned publications, Dr. Benjamin V.
Carnovale, along with other medical and legal staff developed a written policy
for the uniform processing of the claims of silicone breast implant patients.
Consistent with the insurance contract, the policy also enumerates which
procedures are medically necessary.”).
      Put another way, we hold that an insurer is permitted to rely on medical
review criteria to make coverage decisions so long as those criteria are not
inconsistent with the plan’s terms.
      Second, Plaintiff is incorrect that the Mihalik criteria do not represent
nationally recognized standards of medical practice.        Instead, the record
indicates that the Mihalik criteria are intended to represent nationally
recognized standards of medical practice, were created in consultation with a
group of doctors and health professionals from across the country, and were
based on extensive medical literature. Plaintiff does not point to any record
evidence indicating that the Mihalik criteria do not represent a nationally
recognized standard of medical practice. Plaintiff additionally argues that
Defendant should have used the guidelines created by the American
Psychiatric Association.    But Plaintiff does not contend that the Plan
documents or ERISA require the use of any particular representation of the
national standard of care. Accordingly, because the record supports finding
that the Mihalik criteria are in line with national standards, the district court


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                                 No. 16-20174
did not err in finding that Defendant’s consideration of the Mihalik criteria
was proper.
                                       B.
      The parties next dispute whether Plaintiff’s continued partial
hospitalization was medically necessary. The question of whether a proposed
treatment is medically necessary is a factual determination and therefore
reviewed for abuse of discretion. Meditrust Fin. Servs., 168 F.3d at 214 (“The
Plan persuasively argues that the decision to deny benefits based on lack of
medical necessity involves a review of the facts in Revels’s hospital records and
a determination of whether there is factual support for her claim. . . . [T]hese
medical assessments do not constitute an issue of contract interpretation.
Deciding the medical progress of a patient through analysis of medical reports
and records is similar to the factual determinations we have reviewed for abuse
of discretion in other ERISA cases. Therefore, we affirm the district court’s
conclusion that it should review the Plan’s decision for abuse of discretion
because the Plan made a factual determination.” (footnote omitted)).
      Plaintiff contends that the district court erred in finding that
Defendant’s medical necessity determination was not an abuse of discretion
because “[t]he treatment records clearly demonstrated that Ariana’s PHP
treatment at Avalon Hills was medically necessary because she exhibited self-
harm as well as urges to engage in risky behavior severely detrimental to her
health.” We disagree.
      Two medical reviewers considered Plaintiff’s claim and concluded that
continued partial hospitalization was not medically necessary.         The two
reviewing doctors agreed that Plaintiff was not an imminent danger to herself
or others and that Plaintiff was medically stable. Doctor Prabhu further stated
that Plaintiff could have received effective outpatient (as opposed to partial
hospitalization) care. These conclusions were supported by substantial record
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                                    No. 16-20174
evidence. Both doctors spoke directly with Plaintiff’s treating physicians and
reviewed relevant medical literature before making their coverage decisions.
      Plaintiff disputes the reviewing doctor’s conclusions, pointing to record
evidence that she was “really not progressing very well,” was “at [a] high risk
of relapse,” and was likely to continue restricting (not eating enough food) and
over-exercising.     However, the reviewing doctors were aware of this
information.    Indeed, the continued medical risks Plaintiff faced were
extensively documented in Doctor Prabhu’s report. Nonetheless, the reviewing
doctors found that an outpatient course of treatment was the most cost-
effective way to mitigate Plaintiff’s medical risk. Specifically, Doctor Prabhu
found that Plaintiff could “be safely treated in a less restrictive setting.”
      By the time that Plaintiff was denied continued coverage, the reviewing
doctors found that her condition had stabilized. Indeed, both reviewing doctors
noted that Plaintiff had improved enough during her course of treatment to no
longer be an imminent danger to herself or others. Doctor Prabhu noted that
Plaintiff had “made progress about her self harm (still has the thoughts and
urges but doesn’t anymore).”        Doctor Hartman agreed, noting that “[t]he
patient denies suicidal ideation/homicidal ideation (SI/HI) or psychosis.”
During her time at Avalon, Plaintiff also reached a healthy weight. Based on
this improvement, Doctor Prabhu concluded that Plaintiff “appear[ed] to be at
her baseline behaviors.”      Additionally, both doctors agreed that Plaintiff’s
progress in partial hospitalization treatment had stalled because Plaintiff was
not invested in her course of treatment.
      Moreover,      that   Plaintiff’s   doctors   disagreed    with    Defendant’s
assessment of the proper level of care for Plaintiff’s condition does not create a
genuine issue of material fact. See, e.g., Anderson, 619 F.3d at 517 (“[ERISA
plan administrator] was not obliged to accept the opinions of [plaintff’s]
treating physicians.”); Meditrust Fin. Servs., 168 F.3d at 215 n.7 (upholding
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                                 No. 16-20174
denial of benefits despite disagreement between reviewing doctors and
treating physicians). Indeed, our law is clear that “an administrator does not
abuse its discretion by relying on the medical opinions of its consulting
physicians instead of the medical opinions of a claimant’s treating physicians.”
Corry, 499 F.3d at 402 (5th Cir. 2007).
      It was not unreasonable on this record to conclude that Plaintiff could be
treated with a less costly, equally effective outpatient treatment. Because the
plan’s definition of medical necessity requires that the treatment not be “more
costly than an alternative service or sequence of services at least as likely to
produce equivalent therapeutic or diagnostic results as to the diagnosis or
treatment of the patients sickness or bodily injury[,]” substantial evidence
supports Defendant’s finding that further treatment at Avalon Hills was not
medically necessary.
                                      IV.
      We have considered Plaintiff’s remaining arguments and find them
without merit.    The district court’s order granting Defendant summary
judgment is AFFIRMED.




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                                      No. 16-20174
GREGG COSTA, Circuit Judge, joined by EDWARD C. PRADO and
STEPHEN A. HIGGINSON, Circuit Judges, specially concurring:

        As any sports fan dismayed that instant replay did not overturn a blown
call learns, it is difficult to overcome a deferential standard of review.
1   The deferential standard of review our court applies to ERISA decisions often
determines the outcome of disputes that are far more important than a
sporting event: decisions made by retirement and health plans during some of
life’s most difficult times, as this case involving a teenager with a serious
eating disorder demonstrates. So it is striking that we are the only circuit that
would apply that deference to factual determinations made by an ERISA
administrator when the plan does not vest them with that discretion. Compare
Pierre v. Conn. Gen. Life Ins. Co. of N. Am., 932 F.2d 1552, 1562 (5th Cir. 1991),
with Kinstler v. First Reliance Standard Life Ins. Co., 181 F.3d 243, 250–51 (2d
Cir. 1999); Luby v. Teamsters Health, Welfare & Pension Trust Funds, 944 F.2d
1176, 1183–84 (3d Cir. 1991); Reinking v. Phila. Am. Life Ins. Co., 910 F.2d
1210, 1213–14 (4th Cir. 1990) (overruled on other grounds by Quesinberry v.
Life Ins. Co. of N. Am., 987 F.2d 1017, 1030 (4th Cir. 1993)); Rowan v. Unum
Life Ins. Co. of Am., 119 F.3d 433, 435–36 (6th Cir. 1997); Ramsey v. Hercules,
Inc., 77 F.3d 199, 203–05 (7th Cir. 1996); Walker v. Am. Home Shield Long
Term Disability Plan, 180 F.3d 1065, 1070 (9th Cir. 1999); Shaw v. Conn. Gen.
Life Ins. Co., 353 F.3d 1276, 1285 (11th Cir. 2003) (all applying de novo review
when the plan does not grant discretion).
        Pierre did not have the benefit of this robust case law. It was writing
largely on a blank slate as only one other circuit (the Fourth) had at that time



        1See NATIONAL FOOTBALL LEAGUE, OFFICIAL PLAYING RULES OF THE NATIONAL
FOOTBALL LEAGUE, R. 15, § 2, art. 3 (2016) (“A decision will be reversed only when the
Referee has clear and obvious visual evidence available that warrants the change.”); see also
MAJOR LEAGUE BASEBALL, OFFICIAL BASEBALL RULES, R. 8.02(c) (2016).
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                                        No. 16-20174
ruled on the standard to apply to factual determinations in ERISA cases when
the plan did not delegate discretion to the administrator. 932 F.2d at 1556–
57. The unanimous view of the six other circuits that have weighed in on the
other side of the split Pierre created, as well as other developments during the
quarter century since we decided the question, calls our view into doubt.
       Pierre turned largely on an interpretation of a then-recent Supreme
Court case, Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989). Pierre
had to decide whether the de novo standard of review discussed in Firestone
applies only to interpretations of plan terms or also includes factual
determinations of benefit eligibility.             Pierre, 932 F.2d at 1556 (noting
conflicting language in Firestone on this question). In addition to every other
circuit reading Firestone differently, 2 a more recent Supreme Court decision—
even if it does not “unequivocally direct[ ]” us to overrule our precedent 3—
counsels against Pierre’s reading.          Metro. Life Ins. Co. v. Glenn, 554 U.S. 105
(2008), lists the following as one of the “principles of review” that Firestone set
forth: “Principles of trust law require courts to review a denial of plan benefits
‘under a de novo standard’ unless the plan provides to the contrary.” Id. at
110–111 (quoting Firestone, 489 U.S. at 115). A “denial of plan benefits” may
and often does encompass a denial based on factfinding. Glenn treats de novo


       2   Other circuits place considerable weight on the broad language Firestone used when
describing review of an administrator’s factual decision: “we hold that a denial of benefits . .
. is to be reviewed under a de novo standard unless the benefit plan gives the administrator
or fiduciary discretionary authority to determine eligibility for benefits or to construe the
terms of the plan.” Firestone, 489 U.S. at 115 (emphasis added). A plan administrator
generally makes factual determinations when determining the eligibility for benefits, so this
language has been read broadly to apply de novo review to factual findings. See, e.g., Ramsey,
77 F.3d at 202. Circuits also emphasize that deferring to the administrator when the plan
does not vest her with fact-finding authority would “afford less protection to employees and
their beneficiaries than they enjoyed before ERISA was enacted.” Rowan, 199 F.3d at 436
(quoting Firestone, 489 U.S. at 114).
         3 In re Tex. Grand Prairie Hotel Realty, LLC, 710 F.3d 324, 331 (5th Cir. 2013) (quoting

Reed v. Fla. Metro. Univ., Inc., 681 F.3d 630, 648 (5th Cir. 2012) (noting this as the high
standard needed for us to conclude that a Supreme Court opinion overrules our precedent)).
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                                No. 16-20174
review as the general standard without limiting it to denials “based on plan
term interpretations,” the phrase that appeared in one Firestone passage on
which Pierre placed much importance.        Pierre, 932 F.2d at 1556 (quoting
Firestone, 489 U.S. at 108).
      Apart from Glenn’s implication that Pierre’s deference is not warranted,
one of the primary reasons we cited for that deference—that trust law draws a
distinction between judicial review of a trustee’s legal and factual decisions—
has not withstood scrutiny.      Trust law traditionally provided different
standards of review based on whether a decision was mandatory or
discretionary according to the trust document, not whether that decision was
factual or legal. Ramsey, 77 F.3d at 203. In a thorough discussion citing
treatises on trust law as well as nineteenth century British and American
cases, the Seventh Circuit found no basis for distinguishing legal questions
from factual ones because “[e]ver since the English courts of equity developed
the trust instrument, trustees have been answerable to the beneficiaries for a
host of factually specific decisions, including reviews of accounts and
investment decisions.” Id. Another reason Pierre gave for finding a fact/law
distinction in trust law—that factual decisions are “necessary or appropriate”
for plan administration and thus are granted deference under the Restatement
(Second) of Trusts (see Pierre, 932 F.2d at 1558)—applies with equal force to
plan interpretations.   See Rowan, 119 F.3d at 436 (concluding that the
Restatement language Pierre relied on “does not provide any basis for
distinguishing between court review of factual determinations and review of
interpretations of claim language”).    One prominent scholar argues that
Firestone got trust law wrong: “classic trust law assumed that the trustee had
discretion unless the trust instrument or some particular doctrine of trust law
provided otherwise,” whereas Firestone says that the default standard is de
novo and the plan has to grant discretion. Ramsey, 77 F.3d at 203–04 (citing
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                                   No. 16-20174
John H. Langbein, The Supreme Court Flunks Trusts, 1990 SUP. CT. REV. 207,
219).    So Pierre may well be correct in reading trust law as providing
deferential review for fact-based decisions when the plan was silent. It failed
to recognize, however, that Firestone “reversed the presumption.” Id. at 204.
As “there was and is no [trust law] distinction based on the kind of decision the
trustee is making,” id., trust law’s congruity for review of legal or factual
questions would seem to support applying Firestone’s de novo standard to
review of denials of any sort.
        Pierre’s analogy to the limited factual review appellate courts give trial
courts and administrative agencies has also been questioned. That deference
is to a neutral factfinder, whereas ERISA plan administrators often have
conflicts of interest as many both decide and pay claims. Perez v. Aetna Life
Ins. Co., 96 F.3d 813, 823–24 (6th Cir. 1996), vacated for reh’g en banc, 106
F.3d 146 (6th Cir. 1997); see also Rowan, 119 F.3d at 436. As the Seventh
Circuit has explained, district courts and administrative agencies “enjoy [ ] a
well established set of procedural protections that stem from the Constitution
and individual statutes. Plan administrators, in contrast, neither enjoy the
acknowledged expertise that justifies deferential review for agency cases, nor
are they unbiased fact finders like the courts.”        Ramsey, 77 F.3d at 205
(internal citation omitted). Glenn reinforced this distinction, holding that
judicial review should take account of a plan administrator’s conflict even
under the abuse of discretion review that governs when a plan grants
discretion.    554 U.S. at 115.      Granting those conflicted decisionmakers
deference even when the plan does not call for it would “afford less protection
to employees and their beneficiaries than they enjoyed before ERISA was
enacted.” Rowan, 119 F.3d at 436 (quoting Firestone, 489 U.S. at 114).
        Pierre also voiced concerns about courts’ ability to conduct de novo review
of factual determinations, believing that it would be a “difficult and uncertain
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                                   No. 16-20174
exercise on a cold record.” 932 F.2d at 1559. In the place of speculation, we
now have the experience of seven other circuits. No administrative difficulties
are evident from these circuit’s de novo review of benefit denials that rest on
factual determinations. Doctors’ reports provide district courts with guidance
on determining factual issues, and courts can appoint independent experts to
evaluate complicated medical evidence. See, e.g., Walker v. Am. Home Shield
Long Term Disability Plan, 180 F.3d 1065, 1070–71 (9th Cir. 1999). When
doctors’ reports reach differing conclusions, it is well within the capabilities of
a district court to determine which is more credible. See Grady v. Paul Revere
Life Ins. Co., 10 F. Supp. 2d 100, 113–14 (D. R. I. 1998) (evaluating how much
exposure a reviewing doctor had with the claimant to decide whether the
reviewing doctor’s diagnosis was credible).         That evaluation of medical
testimony is something federal courts are much more familiar with now than
when Pierre was decided given the advent of Daubert hearings. See Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
      The pillars supporting Pierre may have thus eroded.           This question
concerning the standard of review for ERISA cases is not headline-grabbing.
But it is one that potentially affects the millions of Fifth Circuit residents who
rely on ERISA plans for their medical care and retirement security. When
decisions by those plans are challenged in court, Pierre matters now much more
than it did. Texas’s anti-delegation statue (assuming it is not preempted)
means that the abuse of discretion standard is no longer dictated for most cases
by plan provisions vesting discretion, but by Pierre’s default deference. And
the circuit split on that default standard undermines the uniform treatment of
ERISA plans—sometimes the same plan offered by employers in different
states—that the federal statute seeks to achieve. Gobeille v. Liberty Mut. Ins.
Co., 136 S. Ct. 936, 944 (2016).


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                                 No. 16-20174
      The default standard for judicial review of fact-based ERISA decisions
was a significant enough question for two Justices to vote to review Pierre after
it created a split with the Fourth Circuit. Pierre, 502 U.S. 973, 973–74 (1991).
The lopsided split that now exists cries out for resolution.




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