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

                                                 FILED
                                                                          February 16, 2009

                                       No. 08-20198                    Charles R. Fulbruge III
                                                                               Clerk

CHAVA WHITE, Individually And As Next Friend of Evan White,

                                                   Plaintiff–Appellant,
v.

ST. LUKE’S EPISCOPAL HEALTH SYSTEM,

                                                   Defendant–Appellee.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:07-CV-3771


Before GARWOOD, GARZA, and OWEN, Circuit Judges.
PER CURIAM:*
       Chava White, a participant in St. Luke’s Episcopal Health System’s (St.
Luke’s) medical plan, was denied coverage for neurofeedback therapy based on
the policy’s “nonmedical services” exclusion.            Because we conclude that all
neurofeedback is a nonmedical service under the terms of the plan, we affirm the
district court’s grant of summary judgment in favor of St. Luke’s.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                         No. 08-20198

                                                I
       Chava White is an employee of St. Luke’s and a participant in its Medical,
Dental & Life Plan (Plan).            White’s son, who is also a Plan beneficiary, is
afflicted by a congenital condition known as Familial Dysautonomia (FD). FD
is a progressive genetic disorder that causes dysfunction of the autonomic and
sensory nervous systems. White’s son suffers from FD-related constipation and
as a result experiences life-threatening swings in blood pressure. Accordingly,
his primary-care physician prescribed EEG neurofeedback therapy as medically
necessary to help manage the constipation problem and thus reduce the
incidence of life-threatening autonomic crises.
       White applied for coverage of the neurofeedback under the Plan. The
Summary Plan Description defines “Covered Expenses” to include charges that
are medically necessary for treatment of injury or sickness. It also contains a
number of exclusions, including one for “nonmedical counseling or ancillary
services, including . . . neurofeedback.” Based on this exclusion, St. Luke’s
denied White’s application.
       After exhausting her administrative remedies, White initiated suit. The
district court, concluding that neurofeedback was not covered under the Plan,
granted summary judgment to St. Luke’s. White now appeals.
                                                II
       We “review[] summary judgments de novo in ERISA cases, applying the
same standards as a district court.”1 An administrator’s denial of benefits under
an ERISA plan is “reviewed under a de novo standard unless the benefit plan
gives the administrator . . . discretionary authority to determine eligibility for
benefits or to construe the terms of the plan.” 2 Because St. Luke’s is vested with

       1
           Robinson v. Aetna Life Ins. Co., 443 F.3d 389, 392 (5th Cir. 2006).
       2
         Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989); accord Lain v. UNUM
Life Ins. Co. of Am., 279 F.3d 337, 342 (5th Cir. 2002).

                                                2
                                            No. 08-20198

such discretionary authority, its decision to deny benefits is reviewed only for
abuse of discretion.3 However, St. Luke’s acts as both insurer and administrator
of the Plan and thus operates under a “conflict of interest” that should “be
weighed as a factor” in determining whether an abuse of discretion occurred.4
          Reviewing an administrator’s decision for abuse of discretion may involve
a two-step analysis.5             “First, a court must determine the legally correct
interpretation of the plan. If the administrator did not give the plan the legally
correct         interpretation,     the   court    must    then    determine      whether      the
administrator’s decision was an abuse of discretion.” 6 If the administrator’s
interpretation of the plan is legally correct, no abuse of discretion could have
occurred, and our inquiry ends.7
          In determining whether an administrator’s interpretation of a plan is
legally correct, we consider three factors: “(1) whether the administrator has
given the plan a uniform construction, (2) whether the interpretation is
consistent with a fair reading of the plan, and (3) any unanticipated costs
resulting from different interpretations of the plan.” 8                   Of these, the most
important factor to consider is whether the administrator’s interpretation of the
plan is consistent with a fair reading of the plan.9


          3
              See Robinson, 443 F.3d at 395.
          4
         Metro. Life Ins. Co. v. Glenn, 128 S. Ct. 2343, 2348, 2350 (2008) (emphasis and
internal quotation mark omitted); accord Crowell v. Shell Oil Co., 541 F.3d 295, 312 (5th Cir.
2008).
          5
              Wildbur v. ARCO Chem. Co., 974 F.2d 631, 637 (5th Cir. 1992).
          6
              Id.
          7
              Crowell, 541 F.3d at 312.
          8
              Id. (citing Threadgill v. Prudential Sec. Group, Inc., 145 F.3d 286, 292-93 (5th Cir.
1998)).
          9
              Id. at 313.

                                                   3
                                        No. 08-20198

       “If [the] court concludes that the administrator’s interpretation is
incorrect, the court must then determine whether the administrator abused his
discretion.” 10 “Three factors are important in this analysis:
            (1) the internal consistency             of   the   plan   under     the
       administrator’s interpretation,

            (2) any relevant regulations formulated by the appropriate
       administrative agencies, and

             (3) the factual background of the determination and any
       inferences of lack of good faith.”11
       White does not argue that St. Luke’s has not uniformly construed the
Summary Plan Description, nor does she allege that there are any unanticipated
costs resulting from differing interpretations. Accordingly, as is often true in
ERISA cases,12 the parties’ dispute concerns the administrator’s interpretation
of the plan. “When interpreting plan provisions, we interpret the contract
language in an ordinary and popular sense as would a person of average
intelligence and experience, such that the language is given its generally
accepted meaning if there is one.”13
                                            III
       The terms of coverage under the Plan are summarized in the Summary
Plan Description issued by CIGNA HealthCare (CIGNA). The general coverage
provision states that “charges made by a Physician or a Psychologist for
professional services” are “Covered Expenses to the extent that the services or


       10
            Wildbur, 974 F.2d at 638.
       11
            Id.
       12
         See e.g., Vercher v. Alexander & Alexander Inc., 379 F.3d 222, 228 (5th Cir. 2004);
Lain v. UNUM Life Ins. Co. of Am., 279 F.3d 337, 344-45 (5th Cir. 2002).
       13
         Chacko v. Sabre, Inc., 473 F.3d 604, 612 (5th Cir. 2006) (quoting Keszenheimer v.
Reliance Standard Life Ins. Co., 402 F.3d 504, 507 (5th Cir. 2005)).

                                             4
                                 No. 08-20198

supplies provided are recommended by a Physician, and are Medically Necessary
for the care and treatment of an Injury or Sickness . . . .” The Summary Plan
Description also contains a number of exclusions, including an exclusion for:
      nonmedical counseling or ancillary services, including but not
      limited to custodial services, education, training, vocational
      rehabilitation, behavioral training, biofeedback, neurofeedback,
      hypnosis, sleep therapy, employment counseling, back school, return
      to work services, work hardening programs, driving safety and
      services, training, educational therapy or other nonmedical ancillary
      services for learning disabilities, developmental delays, autism or
      mental retardation.
White argues that this exclusion encompasses only nonmedical neurofeedback
and that consequently neurofeedback of the medical variety remains a covered
expense under the Summary Plan Description.         A contrary reading, White
argues, would impermissibly render the word “nonmedical” superfluous. White
further asserts that whether a particular service is medical depends on the
underlying application or purpose for which it is prescribed; specifically,
“medical treatment” means treatment that is “medically necessary” to treat a
recognized illness.   Accordingly, White contends that the exclusion is not
applicable in her case because the neurofeedback services for which she requests
coverage are medically necessary to treat her son’s illness.
      We agree with the district court that White’s interpretation of the
exclusion is inconsistent with the plain reading of its terms. The provision
categorically defines nonmedical services, and neurofeedback is merely listed as
one specific example. Accordingly, the word “nonmedical” is not superfluous as
it describes the general category of services encompassed by the exclusion. In
sum, the exclusion applies to all neurofeedback, which is always considered to
be a nonmedical service under the Plan, irrespective of the purpose for which it
is prescribed.




                                       5
                                 No. 08-20198

                                       IV
      Despite the plain language of the Summary Plan Description, White
insists that her interpretation is correct when considered in light of additional
publications related to the Plan. Specifically, White points to CIGNA’s Coverage
Position, which was provided as part of the administrative record relied on to
deny coverage. The Coverage Position explains that neurofeedback, which is
classified as a form of biofeedback, may be covered in certain circumstances
under some CIGNA plans. It further acknowledges that “biofeedback has been
used to treat various medical conditions,” including constipation, and that
“CIGNA HealthCare covers biofeedback as medically necessary” for those
conditions. White concludes that since her situation fits squarely within this
statement, her claim is covered under the Plan.
      Although White is correct that the Coverage Position states that
biofeedback is covered when considered medically necessary, the document also
prefaces this statement by noting that it is applicable only if coverage is
available for biofeedback in the first place. The designation of biofeedback as
medically necessary does not create coverage for biofeedback in plans in which
it is specifically excluded. We also note that, read as a whole, the Coverage
Position supports St. Luke’s interpretation of the Summary Plan Description
rather than White’s. The Coverage Position states:
      Biofeedback and biofeedback devices are specifically excluded under
      many CIGNA HealthCare benefit plans. In addition, biofeedback
      and biofeedback devices are considered behavioral training and
      education/training in nature and services that are behavioral
      training or education/training in nature are explicitly excluded
      under most benefit plans.

It is notable that this provision makes no distinction between medical or
nonmedical forms of biofeedback. Rather, the provision is most naturally read




                                       6
                                        No. 08-20198

to mean that all such services are usually excluded and nonmedical in nature,
which is consistent with St. Luke’s reading of the Summary Plan Description.
       Finally, White argues that the Summary Plan Description should be
interpreted in her favor because more particularized standards apply where, as
here, the administrator bases its denial of benefits on the Summary Plan
Description rather than the Plan itself. White is correct that ERISA guidelines
require that Summary Plan Descriptions be “written in a manner calculated to
be understood by the average plan participant” and that any ambiguities therein
must be resolved in favor of the beneficiary.14 However, as we explained, the
relevant exclusion is not ambiguous. The mere fact that the benefit denial was
based on clear language in the Summary Plan Description rather than the Plan
itself does not allow White to create ambiguities where they do not exist.15
       In any event, no abuse of discretion has occurred. As noted, in this circuit
we traditionally apply a two-step analysis in reviewing a denial of benefits under
an ERISA plan.16 Even if the beneficiary demonstrates that the administrator’s
interpretation of the plan was legally erroneous, we still must determine that
the administrator abused its discretion before its decision may be invalidated.17
St. Luke’s conducted a thorough review of White’s claim and its ultimate denial
of benefits was at a minimum based on a reasonable interpretation of the
Summary Plan Description as well as the plan. Accordingly, St. Luke’s did not
abuse its discretion and its decision may not be disturbed.




       14
         Rhorer v. Raytheon Eng’rs & Constructors, Inc., 181 F.3d 634, 640-41 (5th Cir. 1999)
(citing Hansen v. Cont’l Ins. Co., 940 F.2d 971, 980 (5th Cir. 1991)).
       15
            See Wise v. El Paso Natural Gas Co., 986 F.2d 929, 939-40 (5th Cir. 1993).
       16
            See Wildbur, 974 F.2d at 637.
       17
            Id.

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                         No. 08-20198

                         *     *     *
Accordingly, we AFFIRM the district court’s grant of summary judgment.




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