                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

TIMOTHY DUPREE; ALEXANDRA                 
MARTINI,
              Plaintiffs-Appellants,
                                                 No. 07-55617
                v.
HOLMAN PROFESSIONAL COUNSELING                    D.C. No.
                                               CV-06-06826-PSG
CENTERS; BEVERLY HILLS HOTEL
                                                  OPINION
PLAN, e/s/a The Beverly Hills
Hotel Employee Health Plan,
             Defendants-Appellees.
                                          
         Appeal from the United States District Court
             for the Central District of California
         Philip S. Gutierrez, District Judge, Presiding

                   Argued and Submitted
           October 22, 2008—Pasadena, California

                       Filed July 29, 2009

    Before: Harry Pregerson and Cynthia Holcomb Hall,
   Circuit Judges, and David Alan Ezra,* District Judge.

                    Opinion by Judge Hall;
                   Dissent by Judge Pregerson




  *The Honorable David Alan Ezra, United States District Judge for the
District of Hawaii, sitting by designation.

                                9929
         DUPREE v. HOLMAN PROFESSIONAL COUNSELING        9931




                           COUNSEL

Lisa S. Kantor, Kantor & Kantor, Northridge, California, for
the plaintiffs-appellants.

Robert C. Bohner, Sedgwick, Detert, Moran & Arnold, and
Michael A. Vanic, Reish Luftman Reicher & Cohen, Los
Angeles, California, for the defendants-appellees.


                           OPINION

HALL, Senior Circuit Judge:

                      I.   Introduction

   Timothy Dupree (“Dupree”) and Alexandra Martini
(“Alexandra”), father and step-daughter, bring this ERISA
appeal concerning whether or not Dupree’s employee health
plan covers Alexandra’s stay at a residential treatment center
(“RTC”) that had no contract with insurer Holman Profes-
9932        DUPREE v. HOLMAN PROFESSIONAL COUNSELING
sional Counseling Centers (“Holman”). The district court
found that the stay was not covered. We have jurisdiction pur-
suant to 28 U.S.C. § 1291 and affirm.

                          II.   Background

A.     The Behavioral Health Insurance Plan

   Dupree’s employer, Beverly Hills Hotel, contracted with
Holman for behavioral health insurance coverage. Holman
agreed to provide behavioral health services “through Provid-
ers pursuant to the Schedule of Benefits,” allowing that, if
enrollees chose to instead use non-contracted providers, they
would do so at their own expense, “except as otherwise pro-
vided in this Group Plan Contract.”1 This language is echoed
in other contract provisions: declining to provide reimburse-
ment “except in emergency cases or as outlined in this Group
Plan Contract,” and declining to cover non-emergency treat-
ment by non-contracted providers “unless otherwise stated in
the Agreement.” It also appears in the “Exclusions” section,
which denies coverage for services performed by non-
contracted providers except in emergency cases or as “other-
wise authorized by the Plan.” However, the plan also excludes
coverage for “[a]ny service that is not specifically listed as a
covered benefit.”
  1
    We quote from the February 2004 version of the group contract. The
parties agreed that the December 2004 version was the applicable one, but
have identified no differences between the two versions of the group con-
tract. The December 2004 version of the “Evidence of Coverage & Disclo-
sure” provided by the hotel to its employees is also consistent with the
February 2004 policy language.
  There are differences between the February 2004 and December 2004
benefit schedules. Nonetheless, Dupree’s counsel said during oral argu-
ment that those differences were not significant to her theory of the case,
and so we do not consider them. The portions of the benefit schedule we
quote here are the same in both versions.
           DUPREE v. HOLMAN PROFESSIONAL COUNSELING                 9933
   The plan defines providers as licensed, experienced persons
working individually or within a clinic who are “employed or
under contract with Holman to deliver Behavioral Health Ser-
vices to Enrollees.” The definition section then distinguishes
between contracted providers (those who have “contracted
with Holman to deliver specified services”) and non-
contracted providers (those without such a contract), while
cautioning that “Enrollees may be liable for the cost of non-
emergency services provided by Non-Contracted Providers.”

   Most relevant to this appeal, the Holman plan includes care
at a “Sub-Acute Care Facility,” which is any RTC that “has
entered into a provider agreement with Holman.” In the bene-
fit schedule, Category III, Section C (entitled “Residential
Treatment, Transitional Care, Day Treatment, Partial Hospi-
talization”) constitutes the RTC benefit provided for drug and
alcohol treatment.2 Category III also includes other sections
detailing additional drug and alcohol treatment benefits: (A)
“Outpatient,” (B) “Contracted Providers-Inpatient Hospital,”
(D) “Non-Contracted Providers-Inpatient Hospital,” and (E)
“Non-Contracted Providers-Outpatient Services.” Section D
only covers non-contracted care in an emergency situation.
Section E is not limited to emergencies, but has written below
its description: “NOT A COVERED BENEFIT.”

B.    Alexandra’s Treatment

   In the fall of 2005, Alexandra’s mother (“Ms. Dupree”)
approached Holman to get help for her daughter. Alexandra
was 15 years old. One year earlier she had been diagnosed
with diabetes and prescribed insulin, but failed to follow
through with the treatment. She had already blacked out from
drinking on multiple occasions and been using illegal drugs
for two years.
  2
   The district court mistakenly focused instead on Section D (“Non-
Contracted Providers-Inpatient Hospital”). The applicable section, and the
one argued in Dupree’s trial brief, was Section C.
9934       DUPREE v. HOLMAN PROFESSIONAL COUNSELING
   Between August 26, 2005, and September 6, 2005, Ms.
Dupree spoke with Holman representatives about finding an
RTC for Alexandra. After being apprised of Alexandra’s sub-
stance abuse and diabetes, Holman provided Ms. Dupree with
contact information for two contracted RTCs. Ms. Dupree
said she would let Holman know if she was interested in
them. To Alexandra’s therapist and UCLA doctors, Ms.
Dupree instead indicated her preference for a third option:
Visions Adolescent Treatment Program (“Visions”), an RTC
in Malibu providing on-site diabetes treatment. The UCLA
doctors wrote to Holman, recommending Alexandra be sent to
Visions, even though it was “not currently covered by
[Dupree’s] plan,” because, “according to [Ms.] Dupree,” it
was the only facility that could manage Alexandra’s substance
abuse and diabetic needs. In response to this letter and to Ms.
Dupree’s statement that she was interested in Visions rather
than the two contracted RTCs,3 Holman cautioned that “Vi-
sions is not in-network” and that Dupree’s insurance did not
“carry an Out-of-Plan benefit.”

   Alexandra was admitted to Visions on September 7, 2005,
for alcohol poisoning following a blackout. She stayed there
until October 29, 2005.

C.     Administrative and District Court Proceedings

   In November 2005, Dupree submitted a claim to Holman
requesting reimbursement for Alexandra’s treatment at
Visions. Holman denied the claim as an uncovered out-of-
plan benefit. Dupree appealed, and Holman reiterated its
denial. Ms. Dupree tried two more times, and Holman con-
ducted two medical review summaries in response, determin-
ing that (1) Alexandra was admitted to the out-of-network
provider without authorization when contracted facilities were
  3
   After coverage for Visions was denied on administrative appeal, Ms.
Dupree said she had determined that neither of the recommended facilities
provided on-site diabetes treatment.
           DUPREE v. HOLMAN PROFESSIONAL COUNSELING               9935
recommended and appropriate, and (2) Alexandra’s condition
did not constitute an emergency.

   Dupree then filed a complaint in district court. After a
bench trial, that court found for Holman, determining that the
insurer properly denied benefits for Alexandra’s use of the
non-contracted provider. This timely appeal followed.

                    III.   Standard of Review

   We review the district court’s interpretation of an ERISA
plan de novo and that court’s factual findings for clear error.
Shane v. Albertson’s Inc., 504 F.3d 1166, 1168 (9th Cir.
2007).

                           IV.   Discussion

   The question before us is a narrow one:4 does Dupree’s
plan cover non-emergency treatment at a non-contracted
RTC? We find that it unambiguously does not.

   [1] When reviewing an ERISA policy, we “apply contract
principles derived from state law . . . guided by the policies
expressed in ERISA and other federal labor laws.” Gilliam v.
Nevada Power Co., 488 F.3d 1189, 1194 (9th Cir. 2007)
(internal quotation marks omitted). Those direct us to look to
the agreement’s language in context and construe each provi-
sion in a manner consistent with the whole such that none is
rendered nugatory. See id.; see also Cal. Civ. Code § 1641
(requiring contracts to be read as a whole, giving effect to
every part). “We will not artificially create ambiguity where
none exists. If a reasonable interpretation favors the insurer
and any other interpretation would be strained, no compulsion
exists to torture or twist the language of the policy.” Evans v.
  4
   In oral argument, Dupree’s counsel abandoned any argument that
Alexandra’s treatment came in response to an emergency as defined by the
plan.
9936      DUPREE v. HOLMAN PROFESSIONAL COUNSELING
Safeco Life Ins. Co., 916 F.2d 1437, 1441 (9th Cir. 1990)
(internal quotation marks and citations omitted).

   Dupree’s argument hinges on two aspects of the policy—
one in the group contract itself and one in the benefits
schedule—which he claims together create an ambiguity that
should lead us to find coverage due. See Barnes v. Indep.
Auto. Dealers Ass’n of Cal. Health & Welfare Benefit Plan,
64 F.3d 1389, 1393 (9th Cir. 1995) (construing ambiguities in
favor of the insured). First, Dupree points to the contract lan-
guage indicating that non-contracted provider services, while
not usually covered, are covered in cases of emergency or
(significantly) “as otherwise provided in this Group Plan Con-
tract.” In order to give this latter clause meaning, Dupree con-
tends that the plan must somewhere cover non-emergency,
non-contracted RTC treatment. For that somewhere, he would
have us look to the benefits schedule and compare Section C
(the residential treatment benefit) with the other sections in
the category. Since those other sections distinguish between
non-contracted and contracted providers and Section C does
not, Dupree argues that Section C covers both contracted and
non-contracted providers, thus giving meaning to the “as oth-
erwise provided” language.

  We find this argument unpersuasive.

   [2] First, the policy’s repeated assertion that non-contracted
provider services are not generally covered establishes a
default presumption of no coverage that must then be over-
come by a showing of emergency (not at issue here) or some
statement in the plan granting coverage. The policy’s “Exclu-
sions” section reinforces this presumption, denying coverage
for any benefit “not specifically listed as a covered benefit.”
As discussed below, several non-contracted provider services
are specifically listed as covered. Non-contracted RTC ser-
vices, however, are not. Dupree’s argument would have us
elevate what they claim is a suggestive omission in the bene-
          DUPREE v. HOLMAN PROFESSIONAL COUNSELING          9937
fits schedule to a specific grant of coverage. To do so would
twist the policy’s language.

   Furthermore, the acknowledgment of this default presump-
tion does not give short shrift to the presumption’s exceptions.
Finding that only contracted residential treatment was covered
does not render the “unless otherwise stated” exception sur-
plusage. To the contrary, the plan includes several places
where non-emergency, non-contracted services might have
been covered. For example, the plan describes coverage for
any non-contracted, transitional mental illness treatment
which follows initial emergency treatment, as well as cover-
age for non-contracted, non-emergency outpatient mental ill-
ness and drug and alcohol treatment services. The plan’s
general language includes the “unless otherwise stated”
exception to encompass these benefits. Ultimately, these three
benefits were not purchased by Dupree’s employer, and
“NOT A COVERED BENEFIT” was inserted under the three
provisions to reflect that choice. Nonetheless, the policy’s
general language still needed to accommodate the possibility
that those provisions could have been selected. Therefore, our
interpretation gives effect to the “unless otherwise stated” lan-
guage.

   [3] Finally, even though the policy did not distinguish
between contracted and non-contracted residential treatment
providers, the policy obviates the need for such a distinction.
RTCs are included in the definition of “Sub-Acute Care Facil-
ity” and described as centers that have “entered into a pro-
vider agreement.” Thus, the benefits schedule would naturally
assume that treatment at one of these RTCs would be done by
a contracted provider and would not have needed to include
the “contracted providers” modifier to make this clear. Con-
versely, had residential treatment with non-contracted provid-
ers been an offered benefit, the fact that the plan’s definition
of RTCs only included contracted providers means that a sep-
arate mention for non-contracted providers would have been
required to make that clear. There is no separate mention here.
9938      DUPREE v. HOLMAN PROFESSIONAL COUNSELING
                      V.   Conclusion

   [4] For these reasons, we decline to find this contract
ambiguous. Dupree’s employer chose to provide its employ-
ees with a behavioral health insurance plan that only covered
stays at contracted RTCs, such as the two that were suggested
to, but declined by Ms. Dupree.

   Because we find no coverage in the Holman plan for non-
contracted RTCs and because prior authorization is only
required before obtaining covered services, we need not reach
the question of prior authorization.

  The district court’s decision is thus AFFIRMED.



PREGERSON, Circuit Judge, dissenting:

   The majority opinion holds that the Behavioral Health Plan
that Timothy Dupree purchased “unambiguously does not”
cover non-emergency treatment at non-contracted provider
Residential Treatment Centers. I respectfully disagree. I
believe the plain text of the Behavioral Health Plan’s Group
Contract and Benefits Schedule is ambiguous with regard to
non-contracted provider Residential Treatment Centers. I
believe the Behavioral Health Plan’s Schedule of Benefits can
be interpreted to cover Residential Treatment Center services
from both non-contracted and contracted providers because
the Schedule of Benefits does not clearly distinguish between
non-contracted provider Residential Treatment Centers and
contracted provider Residential Treatment Centers.

   If an employee benefit plan is ambiguous, it must be “con-
strued against the drafter and in favor of the insured.” Barnes
v. Indep. Auto. Dealers Assoc. of Cal. Health and Welfare
Benefit, 64 F.3d 1389, 1393 (9th Cir. 1995) (citing Mongeluzo
v. Baxter Travenol Long Term Disability Benefit Plan, 46
            DUPREE v. HOLMAN PROFESSIONAL COUNSELING                 9939
F.3d 938, 942 (9th Cir. 1995)). The majority opinion states
that the Dupree’s Behavioral Health Plan “unambiguously
does not” cover non-emergency treatment at non-contracted
Residential Treatment Centers. Indeed, the majority opinion’s
interpretation of the plan is reasonable. I believe, however,
that there is another reasonable interpretation.

   As the majority opinion notes, the Behavioral Health Plan’s
Group Contract repeatedly states that non-contracted provider
services are not usually covered except in cases of emergency
or “as otherwise provided in this Group Plan Contract.”*
(Emphasis added.) The “as otherwise provided” language sug-
gests that non-emergency services by non-contracted provid-
ers may be covered under the Behavioral Health Plan. At the
very least, this language is ambiguous as to what “as other-

   *There are multiple provisions in the Group Contract which suggest
non-contracted provider services may be covered. The following provi-
sions contain such language:
•   Section 1.32 of the Group Contract, which defines “Non-Contracted
    Provider,” states that ‘Enrollees may be liable for cost of non-
    emergency services provided by Non-Contracted Providers.”
•   Section 3.1 of the Group Contract, “Provisions of Services” states that
    “[i]f the Enrollee wishes to use Non-Contracted Provider, Enrollee
    would so at his or her own expense, except as otherwise provided in
    this Group Plan Contract.”
•   Section 4.6 of the Group Contract, “Choice of Providers,” states that
    “Holman shall not reimburse Enrollees who secure services from
    licensed Non-Contracted Providers, except in emergency circum-
    stances or as outlined in this Group Plan Contract.”
•   Section 4.10 of the Group Contract, “Emergency Behavioral Health
    Treatment,” states that Holman will not cover non-emergency behav-
    ioral health treatment provided by Non Contracted Providers and Hos-
    pitals unless otherwise stated in this agreement.”
•   Section 5.1 of the Group Contract excludes “[s]ervices provided by
    Non-Contracted Providers except for those that qualify as emergency
    behavioral health treatment hospital admissions or are authorized by
    the Plan.”
(Emphasis added.)
9940         DUPREE v. HOLMAN PROFESSIONAL COUNSELING
wise provided” might refer to, and gives no indication of the
intended meaning of the “clear intent of the parties.” See Gil-
liam v. Nevada Power Co., 488 F.3d 1189, 1194 (9th Cir.
2007) (stating that “the terms in an ERISA plan should be
interpreted in an ordinary and popular sense as would a [per-
son] of average intelligence and experience” and “courts
should first look to explicit language of the agreement to
determine, if possible, the clear intent of the parties.”).

   The majority opinion argues that the “as otherwise provid-
ed” language refers only to non-contracted provider services
that are specifically listed as a covered benefits. In particular,
the majority opinion states this language exists because it is
possible to “contract with Holman Centers to provide addi-
tional non-contracted provider services.” The majority opin-
ion then lists “several places where non-emergency, non-
contracted services might have been covered.” There is, how-
ever, no language in the Behavioral Health Plan that states
that the purpose of the “as otherwise provided” language is to
allow individuals to purchase additional non-contracted pro-
vider services. Additionally, the provisions the majority opin-
ion cites as examples were specifically identified as “NOT A
COVERED BENEFIT.” This was not the case with respect to
non-contracted provider Residential Treatment Centers.

   Indeed, the Behavioral Health Plan’s Schedule of Benefits
is ambiguous with respect to whether non-contracted provider
Residential Treatment Center services are a covered benefit.
Category III, Section C of the Behavioral Health Plan’s
Schedule of Benefits addresses coverage at Residential Treat-
ment Centers.1But that section does not distinguish between
  1
   Category III of the Behavioral Health Plan’s Schedule of Benefits
includes six sections:
      A.   “Outpatient”
      B.   “Contracted Providers-Inpatient Hospital”
      C.   “Residential Treatment, Transitional Care, Day Treatment,
           Partial Hospitalization”
          DUPREE v. HOLMAN PROFESSIONAL COUNSELING              9941
contracted providers and non-contracted providers when dis-
cussing Residential Treatment Centers. In contrast, other sec-
tions in Category III make clear whether they refer to non-
contracted provider benefits or contracted-provider benefits.
For example, Category III includes separate sections with sep-
arate titles for non-contracted provider inpatient services
(Section D — “Non-Contracted Providers-Inpatient Hospi-
tal”) and contracted provided inpatient services (Section B —
“Contracted Providers-Inpatient Hospital”). It also includes
separate sections for non-contracted provider outpatient ser-
vices (Section E — “Non-Contracted Providers-Outpatient
Services”) and contracted provided outpatient services (Sec-
tion A — “Outpatient”). Category III includes, however, only
one section for Residential Treatment (Section C — “Resi-
dential Treatment, Transitional Care, Day Treatment, Partial
Hospitalization”). Moreover, non-contracted provider outpa-
tient services are explicitly listed as “NOT A COVERED
BENEFIT” in Category III, whereas Category III does not
state that non-contracted provider Residential Treatment is
not a covered benefit. I therefore believe that it is reasonable
to interpret the Schedule of Benefits as covering Resident
Treatment Center services from both non-contracted and con-
tracted providers.

  Accordingly, I dissent and would hold that the treatment
Dupree’s daughter, Alexandra Martini, received at Visions
Residential Treatment Center should have been covered under
Dupree’s Behavioral Health Plan.




   D.   “Non-Contracted Providers-Inpatient Hospital”
   E.   “Non-Contracted Providers-Outpatient Services” (listed as
        “NOT A COVERED BENEFIT”)
   F.   “Ambulance”
