           United States Court of Appeals
                      For the Eighth Circuit
                  ___________________________

                          No. 18-2784
                  ___________________________

                   Ivan Mitchell; Melissa Mitchell

                 lllllllllllllllllllllPlaintiffs - Appellants

                                     v.

Blue Cross Blue Shield of North Dakota; Towner County Medical Center

                lllllllllllllllllllllDefendants - Appellees

                        ------------------------------

                           Secretary of Labor

           lllllllllllllllllllllAmicus on Behalf of Appellant(s)
                     ___________________________

                          No. 18-2890
                  ___________________________

                   Ivan Mitchell; Melissa Mitchell

                                   Plaintiffs - Appellees

                                     v.

Blue Cross Blue Shield of North Dakota; Towner County Medical Center

                                  Defendants - Appellants

                        ------------------------------
                                 Secretary of Labor

                  lllllllllllllllllllllAmicus on Behalf of Appellee(s)
                                        ____________

                    Appeals from United States District Court
                     for the District of North Dakota - Fargo
                                   ____________

                            Submitted: October 15, 2019
                              Filed: March 20, 2020
                                  ____________

Before COLLOTON, BEAM, and KELLY, Circuit Judges.
                          ____________

KELLY, Circuit Judge.

      Appellants Ivan and Melissa Mitchell filed this action under the Employee
Retirement Income Security Act of 1974 (ERISA) alleging that Blue Cross Blue
Shield of North Dakota (BCBSND) abused its discretion by partially denying their
claim for air-ambulance benefits under an employee health plan. The district court
granted summary judgment in part to BCBSND and in part to the Mitchells. Because
we conclude that BCBSND did not abuse its discretion by partially denying the
Mitchells’ claim, we affirm in part and reverse in part.

                              I. Factual Background

      In 2013, Valley Med Flight, Inc. (VMF), a provider of air-ambulance services,
terminated its participation agreement with BCBSND following a dispute over
BCBSND’s reimbursement rates. On January 10, 2014, BCBSND sent participating
healthcare providers a memorandum informing them that VMF had terminated its


                                          -2-
participation agreement and that, as a result, “patients could be exposed to collection
of fees in excess of the payment made by [BCBSND]. In the case of air ambulance
services, this can result in a huge expense.” BCBSND encouraged healthcare
providers to use participating air-ambulance service providers rather than VMF to
avoid exposing patients to this expense.

       On January 13, 2014, BCBSND sent participating healthcare providers an
Ambulance Reimbursement Notice stating that, effective January 1, 2014, “[a]ir
ambulance rates for HCPCS codes A0430, A0431, A0435 and A0436 have been
increased and are based on 150 percent of the 2013 Medicare rural air ambulance
rates.” The 2014 rate for code A0430, a base-rate fee, was $6,601.01. The 2014 rate
for code A0435, a mileage fee, was $18.72 per mile.

       On January 15, 2014, Melissa Mitchell was admitted to the Towner Medical
Center emergency room in Cando, North Dakota with complaints of cardiac distress.
The attending physician decided to transfer her to a hospital in Grand Forks, North
Dakota for “a higher level of care for cardiology consult.” Due to weather and road
conditions, it was necessary to use an air ambulance to transport Ms. Mitchell. VMF
provided the transportation and administered intravenous fluids during the flight.
BCBSND does not dispute that air-ambulance transportation was medically necessary
or that Ms. Mitchell did not choose VMF as the service provider.

      At the time, Ms. Mitchell was enrolled through her husband’s employer in an
employee welfare benefit plan (the Plan), which was “fully insured by BCBSND and
issued by BCBSND.” She signed an authorization and assignment permitting VMF
to submit a claim directly to BCBSND for reimbursement under the Plan.




                                         -3-
       The Plan provides that BCBSND will pay 80% of the Allowed Charge for
medically necessary Ambulance Services (after any deductible).1 The Plan defines
“Allowance or Allowed Charge” as “the maximum dollar amount that payment for
a procedure or service is based on as determined by BCBSND.” The Plan also
distinguishes between services provided by participating healthcare providers and
services provided by non-participating healthcare providers. “When Covered
Services are received from a Participating Health Care Provider, a provider discount
provision is in effect. This means the Allowance paid by BCBSND will be
considered by the Participating Health Care Provider as payment in full, except for
Cost Sharing Amounts, Maximum Benefit Allowances or Lifetime Maximums.”
However, “[i]f a Member receives Covered Services from a Nonparticipating Health
Care Provider within the state of North Dakota, benefit payments will be based on the
Allowance . . . . The Member is responsible for . . . any charges in excess of the
Allowance . . . .” (emphasis in original).

      On January 22, 2014, VMF submitted a claim to BCBSND billing a total of
$33,200 for transporting Ms. Mitchell. The charges were divided among three billing
codes: a $21,500 base-rate charge (A0430), a $11,250 mileage charge (A0435), and
a $450 medical-supply charge for the intravenous fluids (A0398).

       On March 26, 2014, BCBSND issued an explanation of benefits (EOB)
partially paying and partially denying VMF’s claim. BCBSND paid the Mitchells
$5,280.81 on the base-rate charge, $1,479.17 on the mileage charge, and $0 on the
medical-supply charge. The EOB explained that, as to the first two charges,
“[b]enefits are provided for 80% of the [BCBSND] allowance for this service.” As
to the third charge, the EOB stated that “[t]his service is included in the payment


      1
      The remaining 20% is a Coinsurance Amount. The Mitchells had already paid
$974.17 of their $2,500 coinsurance maximum, so they could only be required to pay
$1,525.83 in coinsurance. After that, BCBSND was responsible for paying the entire
Allowed Charge.

                                         -4-
made for a related procedure.” This left a total of $26,440.02 remaining on VMF’s
bill. As a non-participating provider, VMF could seek to recover this outstanding
balance from the Mitchells. VMF and the Mitchells requested further review, but
BCBSND reaffirmed its decision.

                            II. Procedural Background

       On July 30, 2015, the Mitchells and VMF entered into a joint litigation
agreement. The Mitchells agreed to file a lawsuit against BCBSND and VMF agreed
to pay for all costs and attorney’s fees related to the lawsuit. Any recovery was to be
distributed as follows: “First, to repay [VMF] for all costs and attorney fees paid or
owing in this matter; second, to satisfy any outstanding invoices to [VMF]; and third,
the remainder, if any, will be split 70% to [VMF] and 30% to the Mitchells.”
Additionally, VMF “agree[d] to limit any liability of the Mitchells to [VMF] to the
amount recovered in Lawsuit. Other than [VMF’s] right to receive that amount
recovered in Lawsuit . . . [VMF] will thereafter waive all other claims it has against
the Mitchells.”

       The Mitchells filed a complaint on September 2, 2015, asserting various
claims. After the district court denied BCBSND’s motion to dismiss for lack of
standing, the parties filed a “joint motion for an order remanding plaintiffs’ claims to
the claims administrator and for a stay of proceedings.” The Mitchells agreed to file
“a single count under ERISA 502(a)(1)(B)” and BCBSND agreed to review the claim
as if it “were made for the first time, without any presumption that the prior
determination of [the Mitchells’] claim was correct.” The district court granted the
motion and remanded the case. On January 18, 2017, BCBSND denied the Mitchells’
claim in a thirteen-page letter. The Mitchells chose not to pursue any further internal
appeals, the stay was lifted, and the matter returned to federal court.




                                          -5-
       The parties subsequently filed cross-motions for summary judgment. The
Mitchells argued that BCBSND abused its discretion by basing its reimbursement
decision on undisclosed administrative policies that lacked substantive support.
BCBSND argued that the Mitchells lacked standing and that it did not abuse its
discretion because its interpretation of the Plan was reasonable. After a hearing, the
district court decided that the Mitchells had standing to sue but that BCBSND’s
interpretation of the Plan was reasonable. However, the district court concluded that
BCBSND’s decision on the medical-supply charge was based on an “after-the-fact
plan interpretation devised for purposes of litigation” announced for the first time in
its January 18, 2017 letter. Accordingly, the district court granted summary judgment
to BCBSND as to the base-rate and mileage fees, but granted summary judgment to
the Mitchells as to the medical-supply fee. BCBSND and the Mitchells appeal the
adverse portions of the district court’s ruling.

                                    III. Standing

       “When a plaintiff alleges injury to rights conferred by statute, two separate
standing-related inquiries are implicated: whether the plaintiff has Article III standing
(constitutional standing) and whether the statute gives that plaintiff authority to sue
(statutory standing).” Miller v. Redwood Toxicology Lab., Inc., 688 F.3d 928, 934
(8th Cir. 2012). BCBSND argues that the Mitchells have not satisfied either standing
requirement. We consider the issue of constitutional standing first, see id., and
review both issues de novo, see Rodgers v. Bryant, 942 F.3d 451, 454 (8th Cir. 2019)
(constitutional standing); Am. Chems. & Equip. Inc. 401(k) Ret. Plan v. Principal
Mgmt. Corp., 864 F.3d 859, 861 (8th Cir. 2017) (statutory standing).

       Article III of the Constitution extends the judicial power only to “cases” and
“controversies.” U.S. Const. art. III, § 2. This case-or-controversy limitation
requires, as an “irreducible constitutional minimum,” that a plaintiff have
constitutional standing. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). “The


                                          -6-
plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the
challenged conduct of the defendant, and (3) that is likely to be redressed by a
favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016).
“The plaintiff, as the party invoking federal jurisdiction, bears the burden of
establishing these elements.” Id.

       BCBSND challenges the injury-in-fact and redressability components of the
Mitchells’ constitutional standing. It argues that the Mitchells have not suffered an
injury in fact because the joint litigation agreement limits their liability to VMF “to
the amount recovered in [this] [l]awsuit.” VMF has agreed to “waive all other claims
against the Mitchells” and the Mitchells will not be required to pay anything to VMF
as a result of BCBSND’s alleged underpayment. BCBSND also contends that a
favorable judicial decision would not “redress” any injury the Mitchells might have
suffered because any monetary award would go to VMF, and any declaration of the
parties’ future rights under the Plan would not benefit the Mitchells because they are
no longer enrolled in the Plan. Further, BCBSND asserts that the Mitchells’
entitlement to 30% of any recovery beyond the outstanding balance cannot provide
any benefit to them because ERISA “does not provide recourse for extracontractual
damages,” Kerr v. Charles F. Vatterott & Co., 184 F.3d 938, 942 (8th Cir. 1999), or
punitive damages, see Harsch v. Eisenberg, 956 F.2d 651, 660–61 (7th Cir. 1992).
In sum, BCBSND argues that the Mitchells have no “personal stake in the outcome”
of this litigation. Gill v. Whitford, 138 S. Ct. 1916, 1929 (2018) (citation omitted).

       Several circuits have rejected similar arguments. See Springer v. Cleveland
Clinic Emp. Health Plan Total Care, 900 F.3d 284, 287–88 (6th Cir. 2018); N.
Cypress Med. Ctr. Operating Co. v. Cigna Healthcare, 781 F.3d 182, 192–94 (5th Cir.
2015); Spindex Physical Therapy USA, Inc. v. United Healthcare of Ariz., Inc., 770
F.3d 1282, 1289–91 (9th Cir. 2014); HCA Health Servs. of Ga., Inc. v. Emp’rs Health
Ins. Co., 240 F.3d 982, 991 (11th Cir. 2001). These courts have reasoned that plan
participants are injured not only when an underpaid healthcare provider charges them


                                         -7-
for the balance of a bill; they are also injured when a plan administrator fails to pay
a healthcare provider in accordance with the terms of their benefits plan. This
follows from the fact that plan participants are contractually entitled to plan benefits.
The wrongful denial of plan benefits breaches the parties’ contract and deprives the
participant of the benefit of their bargain. This constitutes an injury to the
participant—even if the benefits are assigned to a third party.

       We find this analysis persuasive. The injury-in-fact component of
constitutional standing requires a plaintiff to “show that he or she suffered ‘an
invasion of a legally protected interest’ that is ‘concrete and particularized’ and
‘actual or imminent, not conjectural or hypothetical.’” Spokeo, 136 S. Ct. at 1548
(citation omitted). The denial of benefits to which a plan participant is contractually
entitled is a “particularized” injury that affects the participant in “a personal and
individual way.” Id. (citation omitted). It is also a “concrete” injury that “actually
exist[s].” Id. Although the injury may not be tangible, “intangible injuries can
nevertheless be concrete.” Id. at 1549. “In determining whether an intangible harm
constitutes injury in fact, both history and the judgment of Congress play important
roles.” Id. Traditionally, “a party to a breached contract has a judicially cognizable
injury for standing purposes” because the other party’s breach devalues the services
for which the plaintiff contracted and deprives them of the benefit of their bargain.
See Kuhns v. Scottrade, Inc., 868 F.3d 711, 716 (8th Cir. 2017) (citation omitted).
And in ERISA, Congress sought to “protect contractually defined benefits.” Mass.
Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 148 (1985). Therefore, history and the
judgment of Congress both indicate that the denial of plan benefits constitutes a
cognizable injury in fact for purposes of constitutional standing.

       A court can redress this injury by awarding the contractual benefits to which
the participant is entitled. A participant’s assignment to a third party of the payment
made on a benefits claim, as opposed to the underlying claim itself, does not prevent
the court from redressing the participant’s injury. See Sprint Commc’ns Co. v. APCC


                                          -8-
Servs., Inc., 554 U.S. 269, 286–87 (2008). We therefore conclude that the Mitchells
have constitutional standing to bring this action.

       Next, BCBSND challenges the Mitchells’ statutory standing. ERISA
empowers a plan “participant” or “beneficiary” to bring a civil action “to recover
benefits due to him under the terms of his plan.” 29 U.S.C. § 1132(a)(1)(B), (a)(2).
A “participant” is “any employee or former employee of an employer . . . who is or
may become eligible to receive a benefit of any type from an employee benefit plan
. . . or whose beneficiaries may be eligible to receive any such benefit.” Id.
§ 1002(7). This “may include a former employee with a colorable claim for benefits.”
LaRue v. DeWolff, Boberg & Assocs., 552 U.S. 248, 256 n.6 (2008) (citing
Harzewski v. Guidant Corp., 489 F.3d 799 (7th Cir. 2007)). A “beneficiary” is “a
person designated by a participant, or by the terms of an employee benefit plan, who
is or may become entitled to a benefit thereunder.” 29 U.S.C. § 1002(8).

       BCBSND argues that, because Mr. Mitchell has a new employer and the
Mitchells are no longer enrolled in the Plan, the Mitchells lack statutory standing.
We disagree. Mr. Mitchell is a former employee and Plan participant; Ms. Mitchell
is a Plan beneficiary. The Mitchells have alleged a “colorable claim” that BCBSND
unreasonably interpreted the “Allowed Charge” for “Ambulance Services” and denied
their claim for benefits based on that interpretation. See LaRue, 552 U.S. at 256 n.6.
This is sufficient to provide the Mitchells with statutory standing to bring an action
“to recover benefits due to [them] under the terms of [their] plan.” See 29 U.S.C.
§ 1132(a)(1)(B), (a)(2).

                                    IV. Merits

      “While ERISA itself does not specify the standard of review, see 29 U.S.C.
§ 1132(a)(1)(B), the Supreme Court has held that a reviewing court should apply a
de novo standard of review unless the plan gives the ‘administrator or fiduciary


                                         -9-
discretionary authority to determine eligibility for benefits or to construe the terms
of the plan.’” Donaho v. FMC Corp., 74 F.3d 894, 898 (8th Cir. 1996) (quoting
Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989)), abrogated on
other grounds by Black & Decker Disability Plan v. Nord, 538 U.S. 822 (2003).
Where, as here, “discretionary authority is given by the plan, we review the plan
administrator’s decision only for abuse of discretion.” Id.

       A plan administrator does not abuse its discretion so long as its decision is
“reasonable.” Id. at 899. The nature of our review depends, in part, on the nature of
the plan administrator’s decision. “When determining whether an administrator’s
plan interpretation is reasonable, this circuit uses the five-factor test enunciated in
Finley [v. Special Agents Mut. Benefit Ass’n, Inc., 957 F.2d 617, 621 (8th Cir.
1992)]. Where, however, an administrator evaluates facts to determine the plan’s
application in a particular case . . . the substantial evidence test governs our review.”
Id. at 899 n.9. Because the issue here centers on BCBSND’s interpretation of the
Plan,2 we apply the five Finley factors:

      [1] whether [BCBSND’s] interpretation is consistent with the goals of
      the Plan, [2] whether [BCBSND’s] interpretation renders any language
      in the Plan meaningless or internally inconsistent, [3] whether
      [BCBSND’s] interpretation conflicts with the substantive or procedural
      requirements of the ERISA statute, [4] whether [BCBSND] ha[s]



      2
       BCBSND argues that its interpretation of the “Allowed Charge” for
air-ambulance services is an unreviewable matter of plan design. We disagree.
“Nothing in ERISA requires employers to establish employee benefits plans. Nor
does ERISA mandate what kind of benefits employers must provide if they choose
to have such a plan.” Lockheed Corp. v. Spink, 517 U.S. 882, 887 (1996). Therefore,
an employer’s decisions regarding the content of a health benefits plan is not
reviewable under ERISA. See id. But here, the Mitchells do not challenge the
employer’s decision regarding the Plan’s content. They challenge BCBSND’s
interpretation of the Plan’s language.

                                          -10-
      interpreted the words at issue consistently, and [5] whether [BCBSND’s]
      interpretation is contrary to the clear language of the Plan.

Finley, 957 F.2d at 621.

       Because BCBSND both determines whether an employee is eligible for
benefits and pays benefits out of its own pocket, it operates under an inherent conflict
of interest. See Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 114 (2008). We
consider this as a factor in our abuse-of-discretion review. See id. at 115–19.
“However, the dispositive principle remains that where plan fiduciaries have offered
a ‘reasonable interpretation’ of disputed provisions, courts may not replace it with an
interpretation of their own—and therefore cannot disturb as an ‘abuse of discretion’
the challenged benefits determination.” Darvell v. Life Ins. Co. of N. Am., 597 F.3d
929, 935 (8th Cir. 2010) (cleaned up).

      A.     The Base-Rate and Mileage Fees

       The Plan provides that “Ambulance Services,” including “[b]enefits for air
transportation . . . when ground transportation is not Medically Appropriate and
Necessary as determined by BCBSND,” will be provided at a percentage of the
“Allowed Charge.” The “Allowed Charge” is “the maximum dollar amount that
payment for a procedure or service is based on as determined by BCBSND.” In 2014,
BCBSND interpreted these terms as providing for a base-rate reimbursement of
$6,601.01 and a mileage reimbursement of $18.72 per mile, “based on 150 percent
of the 2013 Medicare rural air ambulance rates.”

      The Mitchells do not seriously challenge the district court’s conclusions that,
“because the provisions of the Plan are written quite broadly,” providing a payment
of 150% of the Medicare rural air-ambulance rate does not contravene the clear
“language of the plan” or “render any of the terms of the Plan itself inconsistent or
even superfluous.” Mitchell v. Blue Cross Blue Shield of N.D., No. 2:15-cv-00086,

                                         -11-
2018 WL 3463260, at *12 (D.N.D. July 18, 2018). However, the Mitchells argue that
BCBSND’s interpretation is unreasonable because it conflicts with “the substantive
or procedural requirements of the ERISA statute.” See Finley, 957 F.2d at 621.
In particular, they assert that BCBSND violated their right to a full and fair review
under ERISA § 503 and violated BCBSND’s fiduciary duties under ERISA § 404(a).

      ERISA § 503 requires an employee benefit plan to:

      (1) provide adequate notice in writing to any participant or beneficiary
      whose claim for benefits under the plan has been denied, setting forth
      the specific reasons for such denial, written in a manner calculated to be
      understood by the participant, and

      (2) afford a reasonable opportunity to any participant whose claim for
      benefits has been denied for a full and fair review by the appropriate
      named fiduciary of the decision denying the claim.

29 U.S.C. § 1133. Department of Labor regulations implement this provision by
“set[ting] forth minimum requirements for employee benefit plan procedures
pertaining to claims for benefits.” See 29 C.F.R. § 2560.503-1(a).

        The Mitchells contend that BCBSND’s interpretation is unreasonable because
it failed to provide them with proper notice that it interpreted the “Allowed Charge”
for air-ambulance services as 150% of the 2013 Medicare rural air-ambulance rates.
Although BCBSND provided this information to participating healthcare providers
on January 13, 2014, it did not similarly notify plan participants. BCBSND also did
not provide this information in its initial EOB or in its responses to VMF and the
Mitchells’ requests for further review. Like the district court, we find it “troubling
that the participants of the plan themselves [we]re not provided this information
outright.” Mitchell, 2018 WL 3463260, at *12. It is especially disconcerting that
BCBSND refused to explain the basis for its reimbursement rate when it initially
processed the Mitchells’ claim. However, we agree with the district court that the

                                        -12-
delay in providing this information does not by itself render BCBSND’s
interpretation unreasonable given that the Mitchells “were ultimately provided this
information through the claim process.” Id.3

        The Mitchells also note that the district court regarded BCBSND’s January 18,
2017 letter as “a prolix after-the-fact plan interpretation devised for purposes of
litigation.” Id. at *11 (cleaned up). However, the district court declined to find
BCBSND’s interpretation of the “Allowed Charge” for air-ambulance services
unreasonable on this basis, explaining that “it cannot be said that the rate is supplied
as a post-hoc rationale when the 2014 letter establishes that rate just prior to the
provision of services received by Ms. Mitchell.” Id. at *12. We agree with this
analysis. The alleged deficiencies in the January 18, 2017 letter do not show that the
interpretation BCBSND adopted several years earlier was unreasonable.

       Next, the Mitchells assert that BCBSND’s interpretation is unreasonable
because it resulted in a reimbursement rate that was so low as to constitute a breach
of fiduciary duty. They cite ERISA § 404(a), which requires a plan administrator to
“discharge his duties with respect to a plan solely in the interest of the participants
and beneficiaries” and “for the exclusive purpose of: (i) providing benefits to
participants and their beneficiaries; and (ii) defraying reasonable expenses of
administering the plan.” 29 U.S.C. § 1104(a)(1). However, they have not identified
any specific standard BCBSND was required to follow in interpreting the Plan.




      3
        The Mitchells correctly note that ERISA fiduciaries have a duty to disclose
material information to plan participants. See Shea v. Esensten, 107 F.3d 625,
628–29 (8th Cir. 1997). However, their claim in this action is not that BCBSND
failed to disclose material information; it is that BCBSND’s interpretation of the
“Allowed Charge” for air-ambulance services was unreasonable. Their allegations
of procedural irregularities in the claims process are therefore only relevant insofar
as they bear on the reasonableness of BCBSND’s interpretation.

                                         -13-
       When a plan indexes the term “Allowable Charge” to an external standard,
such as “the fee which is recognized by a prudent person,” HCA Health Servs. of Ga.,
240 F.3d at 996, or “the usual and customary amount,” Geddes v. United Staffing All.
Emp. Med. Plan, 469 F.3d 919, 930 (10th Cir. 2006), that standard can be used to
evaluate the plan administrator’s determination. State statutory or administrative
rules requiring plan administrators to consider certain factors may also provide a basis
for deeming certain interpretations unreasonable. See Phi Air Med. v. Tex. Mut. Ins.
Co., M4-12-1671-02, (Tex. Dep’t Ins. Jan. 13, 2012); Khaw v. Allstate Ins. Co.,
ATX-2007-5-P (Haw. Ins. Comm. Oct. 16, 2008). But there is nothing like that here.
The Plan circularly defines the “Allowed Charge” as “the maximum dollar amount
that payment for a procedure or service is based on as determined by BCBSND.” The
Mitchells have not identified any rule prohibiting Mr. Mitchell’s employer from
giving such broad discretion to BCBSND and, absent such a rule, an employer’s
decision to give broad discretion to a plan administrator is an unreviewable matter of
plan design. See Lockheed Corp. v. Spink, 517 U.S. 882, 887 (1996). Even if the
Mitchells are correct that a plan administrator might nonetheless violate its fiduciary
duties if it set a reimbursement rate so low that it failed to act “in the interest of the
participants and beneficiaries,” 29 U.S.C. § 1104(a)(1), we cannot say that
BCBSND’s interpretation of the “Allowed Charge” for air-ambulance services as
150% of the Medicare rural air-ambulance rates violated that basic duty.

       This does not mean that BCBSND’s discretion is limitless. Its interpretation
could be unreasonable if it was not “consistent with the goals of the Plan” or if
BCBSND had not “interpreted the words at issue consistently.” See Finley, 957 F.2d
at 621. The Mitchells suggest that BCBSND’s interpretation is inconsistent with the
Plan’s goal to ensure that members are not held personally responsible for large
medical expenses. But this is an imprecise description of the Plan’s goal. The Plan’s
only explicit purpose is to “provide, among other things, various benefits to Members
in the Plan.” It is consistent with that purpose to provide benefits in accordance with
the Plan’s terms and to otherwise deny them—even if doing so results in members


                                          -14-
being held responsible for large payments. Nor have the Mitchells shown that
BCBSND failed to consistently interpret the “Allowed Charge” for air-ambulance
services. The record indicates that BCBSND has used Medicare rates as the
applicable benchmark rates since 2009.4

       Finally, we consider BCBSND’s conflict of interest. BCBSND interprets the
Plan language, pays participants’ claims, and adjudicates their appeals. It was also
involved in a dispute with VMF over its reimbursement rate for air-ambulance
services shortly before the Mitchells’ claims were submitted. This provides a good
reason to be suspicious of BCBSND’s interpretation. But here, the Plan gives
BCBSND broad discretion to determine the “Allowed Charge” for air-ambulance
services, and BCBSND has adopted a consistent interpretation, tied to an external
benchmark, which is compatible with both the Plan’s language and its purpose.
Under these circumstances, we cannot say that BCBSND abused its discretion.

      B. The Medical-Supply Fee

       In its January 18, 2017 letter, BCBSND explained that it denied the claim for
a medical-supply fee because the charge for intravenous fluids was included within
the base rate for air-ambulance services. The district court found this interpretation
to be “consistent with the language of the plan, which includes services, supplies or
treatments used to treat an illness or injury . . . within the Plan’s definition of
Ambulance Services.” Mitchell, 2018 WL 3463260, at *13. However, the district
court concluded that, although this interpretation was reasonable, it could not be used


      4
        The administrative record contains documents related to the Allowed Charges
for air-ambulance services in 2014 and 2015. The Mitchells argue that, because the
2015 documents describe BCBSND’s “rationale for air ambulance payment
methodology” but the 2014 documents do not, BCBSND’s 2014 interpretation was
unreasonable. However, “[i]n 2015 air ambulance rates [we]re just over 150% of
Medicare.” This consistency supports BCBSND’s interpretation.

                                         -15-
to support BCBSND’s decision because it was a post-hoc rationale that was not
“thoroughly provided” to the Mitchells until January 18, 2017. Id.

      We agree that BCBSND’s interpretation is consistent with the Plan’s language.
But we do not agree that it was an “after-the-fact plan interpretation devised for
purposes of litigation.” Id. The 2014 EOB explains that the medical-supply charge
was denied because “[t]his service is included in the payment made for a related
procedure.” The record indicates that BCBSND consistently took this position
throughout the claims process. We are again troubled by BCBSND’s failure to
provide a more thorough explanation to the Mitchells at an earlier stage of the claims
process. But we cannot say that BCBSND’s consistent interpretation of the Plan’s
language was an abuse of discretion.

                                  V. Conclusion

     For the foregoing reasons, we affirm the district court’s grant of summary
judgment to BCBSND as to the base-rate and mileage fees, but reverse its grant of
summary judgment to the Mitchells as to the medical-supply fee. We conclude that
BCBSND was entitled to summary judgment on all claims.
                     ______________________________




                                        -16-
