     06-0343-cv
     Krauss v. Oxford Health Plans, Inc.




1                         UNITED STATES COURT OF APPEALS

2                             FOR THE SECOND CIRCUIT

3                                August Term, 2006

4    (Argued: February 7, 2007                        Decided: February 26, 2008
5                                                  Errata Filed: March 25, 2008)

6                              Docket No. 06-0343-cv

7                    -------------------------------------

8                     Daniel J. Krauss and Geri S. Krauss,

9                             Plaintiffs-Appellants,

10                                         - v -

11     Oxford Health Plans, Inc., Oxford Health Plans (NY), Inc. and
12                     Oxford Health Insurance, Inc.,

13                             Defendants-Appellees.

14                   -------------------------------------

15   Before:     WALKER and SACK, Circuit Judges, and DANIELS, District
16               Judge.*

17               Plaintiffs, participants in one of defendants' health

18   insurance plans, allege various violations of the Employee

19   Retirement Income Security Act, 29 U.S.C. § 1001 et seq., and the

20   Women's Health and Cancer Rights Act, 29 U.S.C. § 1185(a).           The

21   United States District Court for the Southern District of New

22   York (Colleen McMahon, Judge) granted summary judgment to the

23   defendants.    We, like the district court, conclude, inter alia,



           *
            The Honorable George B. Daniels, of the United States
     District Court for the Southern District of New York, sitting by
     designation.
1    that the defendants did not violate either statute or the terms

2    of the insurance plan in declining to reimburse the plaintiffs

3    (a) for more than $30,000 of Mrs. Krauss's $40,000 doctor's bill

4    for bilateral breast reconstruction surgery where the maximum

5    reimbursement for a single such surgery would have been $20,000,

6    or (b) for private-duty nursing.

7                Affirmed.

8                               GERI S. KRAUSS, Esq., New York, NY, Pro
9                               Se, for Plaintiffs-Appellees.**

10                              PETER P. McNAMARA, Rivkin Radler LLP
11                              (Cheryl F. Korman, of counsel),
12                              Uniondale, NY, for Defendants-
13                              Appellants.

14   SACK, Circuit Judge:

15               The plaintiffs, Geri S. Krauss and Daniel J. Krauss,

16   wife and husband, are members of an employer-provided health care

17   plan that is governed by the provisions of the Employee

18   Retirement Income Security Act, 29 U.S.C. § 1001 et seq.

19   ("ERISA").    The defendants, Oxford Health Plans, Inc., Oxford

20   Health Plans (NY), Inc., and Oxford Health Insurance, Inc.

21   (collectively, "Oxford"), administer claims for benefits under

22   the plan.

23               In April 2003, Geri Krauss was diagnosed with breast

24   cancer.   Shortly thereafter, she underwent a double mastectomy

25   and bilateral breast reconstruction surgery.    The surgical

26   procedures were performed in a single operative session by two


          **
             Mrs. Krauss, a member of the bar, is also acting as
     counsel for her husband Daniel and not pro se in that regard.

                                        2
1    different, unaffiliated doctors, neither of whom was a member of

2    the plan's provider network.   Following the operation, Mrs.

3    Krauss received care from private-duty nurses.   The Krausses paid

4    for both the surgery and post-operative care themselves and

5    sought reimbursement for those expenses from Oxford.   Oxford

6    refused payment for one-fourth of the cost of the breast

7    reconstruction surgery and all expenses incurred for private-duty

8    nursing.

9               After exhausting available administrative appeals, the

10   Krausses filed this lawsuit in the United States District Court

11   for the Southern District of New York.   They allege that Oxford's

12   denial of full reimbursement for the bilateral surgery and

13   private-duty nursing care violated the Women's Health and Cancer

14   Rights Act, 29 U.S.C. § 1185b ("WHCRA"), as well as various ERISA

15   provisions.   They further allege that Oxford violated ERISA by

16   failing to make certain required disclosures and failing to

17   respond to various grievances in the manner and time periods set

18   forth by their plan.

19              Following cross-motions for summary judgment, the

20   district court (Colleen McMahon, Judge) ruled in favor of Oxford

21   on all claims.   Krauss v. Oxford Health Plans, Inc., 418 F. Supp.

22   2d 416 (S.D.N.Y. 2005).   Although we are not unsympathetic to the

23   effects on the Krausses of the bureaucratic misadventures to

24   which they were subjected by Oxford, we must, and do, nonetheless

25   affirm.

26                               BACKGROUND

                                      3
1               In April 2003, Mrs. Krauss was diagnosed with breast

2    cancer.   Her doctors, who were not members of Oxford's provider

3    network, recommended that she undergo a double mastectomy and

4    bilateral breast reconstruction,1 to be performed in a single

5    surgical session.   On May 5, 2003, Oxford "pre-certified" (i.e.,

6    approved in advance) the breast-reconstruction portion of the

7    surgery,2 stating that "[p]ayment for approved services [would]

8    be consistent with the terms, conditions, and limitations of

9    [Mrs. Krauss's] Certificate of Coverage, the provider's contract,

10   as well as with Oxford's administrative and payment policies."

11   Letter from Patricia Robik to Geri Krauss dated May 5, 2003.      On

12   May 13, 2003, Mrs. Krauss underwent bilateral mastectomy and

13   reconstruction surgery.   Following the surgery, upon the doctors'

14   suggestion and the plaintiffs' request, private-duty nurses

15   oversaw Mrs. Krauss's recovery.3


          1
             According to Oxford's Rule 56.1 statement in the district
     court, "Oxford's written policy for Bilateral Surgery . . .
     states that 'Bilateral Surgery is defined by the Centers for
     Medicare and Medicaid Services . . . as procedures performed on
     both sides of the body during the same operative session or on
     the same day.'" Statement of Material Facts on Behalf of
     Defendants' Motion for Summary Judgment dated April 15, 2005, at
     9, ¶ 46. The plaintiffs do not dispute this definition.
          2
             There is no dispute with respect to Oxford's
     reimbursement to the Krausses for doctors' charges for the double
     mastectomy.
          3
             Mrs. Krauss experienced two post-operative complications,
     one of which required emergency surgery nine days after the
     initial May 13, 2003 operation. The Krausses experienced some
     difficulty receiving payments for the emergency surgery, as well
     as for some other care that occurred thereafter. Reimbursement
     for care related to these services, however, was eventually
     provided, see Krauss, 418 F. Supp. 2d at 423, and therefore is
                                                        (continued...)
                                     4
1              Plaintiffs' Health Care Plan

2              The Krausses were at all relevant times participants in

3    an ERISA-covered employee health insurance plan called the

4    "Freedom Plan--Very High UCR" (the "Plan").    The Plan was

5    established and sponsored by Mr. Krauss's employer, and claims

6    for benefits under the Plan were administered by Oxford.      The

7    Plan's terms are set forth in three documents -- the Summary of

8    Benefits, the Certificate of Coverage (for payment of physicians

9    and other providers who were part of the Oxford network), and the

10   Supplemental Certificate of Coverage ("Supplemental Certificate")

11   (for out-of-network care).    Because the Supplemental Certificate

12   concerns the use of out-of-network providers including the

13   surgeons who operated on Mrs. Krauss, it is the document of

14   primary relevance for purposes of this appeal.    A Plan member

15   utilizing an out-of-network provider must herself pay a higher

16   portion of her medical expenses from her own pocket than must a

17   member receiving care from in-network providers.

18             Oxford limits its plans' costs for medical services by,

19   inter alia, (1) restricting the services that the insurance plan

20   covers; (2) imposing deductibles and coinsurance payments; and

21   (3) paying medical expenses in accordance with a schedule of

22   "usual, customary, and reasonable" ("UCR") fees for various

23   medical services, Suppl. Certificate, Sec. I. ("How the Freedom

24   Plan® Works"), subsec. 7.    Charges in excess of the UCR rate or



          3
           (...continued)
     not at issue on this appeal.
                                       5
1    excluded from coverage by a plan, as well as the deductibles and

2    coinsurance charges, are paid by the insured.

3               The Plan expressly excludes "[p]rivate or special duty

4    nursing" from Plan coverage.    Id. at Sec. IV ("Exclusions and

5    Limitations"), ¶ 28.   The Krausses had reached the Plan's annual

6    limit on coinsurance and deductible charges at the time of Mrs.

7    Krauss's surgery, so these charges did not reduce the amount of

8    payments they received.    They remained subject to the Plan's UCR

9    schedule, however.

10              The Supplemental Certificate makes several references

11   to the UCR schedule.   The subsection entitled "Your Financial

12   Obligations," for example, states:

13              A UCR schedule is a compilation of maximum
14              allowable charges for various medical
15              services. They vary according to the type of
16              provider and geographic location. Fee
17              schedules are calculated using data compiled
18              by the Health Insurance Association of
19              America (HIAA)[4] and other recognized
20              sources. What We [sic] Cover/reimburse is
21              based on the UCR.

22   Id. at Sec. I, subsec. 7.    Section XII, "Definitions," provides

23   further that the UCR charge is "[t]he amount charged or the

24   amount We [sic] determine to be the reasonable charge, whichever

25   is less, for a particular Covered Service in the geographical

26   area it is performed."    Id. at Sec. XII.

27              According to the Supplemental Certificate, after Plan

28   members receive care from an out-of-network provider, they must

29   pay for services themselves and file a claim for reimbursement


          4
              The HIAA now does business under the name Ingenix.
                                      6
1    with Oxford.   Claims for services covered by the Plan are to be

2    paid within sixty days of their receipt.

3              Plan members who wish to challenge the amount of their

4    reimbursement may seek review through Oxford's grievance

5    procedure.    Under that procedure, members' written grievances are

6    first addressed by Oxford's "Issues Resolution Department" -- the

7    "First-Level Appeal."    Members who remain dissatisfied may appeal

8    to Oxford's "Grievance Review Board" -- the "Second-Level

9    Appeal," and then to a committee appointed by the Board of

10   Directors.    See Certificate of Coverage, Sec. VI.A; Letter from

11   Celeste Vangilder to Geri Krauss dated Dec. 1, 2003, at 2.

12             Plaintiffs' Claims History

13             Dr. Mark Sultan charged the Krausses $40,000 for Mrs.

14   Krauss's breast reconstruction procedure and $200 for a pre-

15   operation consultation.    The private-duty nurses charged a total

16   of $8,300 for her post-operative care.

17             The Krausses timely filed for reimbursement for both

18   sets of services from Oxford.    In response, on June 13, 2003,

19   they received a check from Oxford in the amount of $30,200 --

20   $30,000 for the double-breast reconstruction and the $200

21   consultation fee.    The accompanying Explanation of Benefits

22   ("EOB") did not explain why the procedure was not fully

23   reimbursed.    It stated only that the maximum allowable benefit

24   was $30,200 and that "[t]his claim reflects industry standards

25   for payment of services which include two surgical procedures."



                                       7
1    EOB dated June 13, 2003, at 1.   Oxford did not explain the

2    absence of reimbursement for the private-duty nursing.

3              On November 10, 2003, the Krausses filed a grievance

4    with Oxford for the $10,000 of Dr. Sultan's fee and for the

5    $8,300 cost for private-duty nursing that had not been

6    reimbursed.    By letter dated December 1, 2003, Oxford denied the

7    Krausses' grievance as to the bilateral reconstruction surgery

8    fee, "as the cpt code 19364-50x1[5] was paid at the usual and

9    customary rate, because we have participating providers

10   performing the procedure effectively, and there is no medical

11   reason as to why to grant [sic] an exception outside the

12   UCR . . . ."   Letter from Celeste Vangilder to Geri Krauss dated

13   Dec. 1, 2003, at 1.

14             By letter dated December 3, 2003, Oxford notified the

15   Krausses that it had referred the claim for the private-duty

16   nursing care to its claims department.   Oxford contends that it

17   thereafter denied the Krausses' claim for private-duty nursing

18   charges on the ground that private-duty nursing is not covered by

19   the Plan, but the Krausses submit that they never received a

20   report of Oxford's benefits determination in this regard.



          5
            CPT is the commonly used abbreviation for "Current
     Procedural Terminology," a "system of terminology [that] is the
     most widely accepted medical nomenclature used to report medical
     procedures and services under public and private health insurance
     programs." American Medical Ass'n, CPT Process -- How a Code
     Becomes a Code, http://www.ama-assn.org/ama/pub/
     category/3882.html (updated Oct. 30, 2007; last visited Feb. 25,
     2008). CPT code 19364 is the code for "breast reconstruction
     with free flap." See Letter from Celeste Vangilder to Geri
     Krauss dated Dec. 1, 2003, at 1.
                                      8
1              On December 9, 2003, the Krausses, in two letters,

2    requested additional information in aid of filing their "Second-

3    Level" appeal regarding the unpaid portion of Dr. Sultan's

4    operating fee.   Oxford responded with three additional cursory

5    denial letters dated December 11, 2003, January 21, 2004, and

6    January 22, 2004.   These letters stated, respectively, that in-

7    network providers could have performed the surgery and that

8    "there is no medical reason . . . to grant an exception outside

9    the UCR,” Letter from Celeste Vangilder to Geri Krauss dated Dec.

10   11, 2003, at 1; that "[n]o additional payment will be

11   forthcoming" because Oxford had determined the claim was paid

12   "correctly at the [UCR]," Letter from Lorraine Paquette to Geri

13   Krauss dated Jan. 21, 2004, at 1; and that, once again, "no

14   additional payment [will] be forthcoming," this time because

15   Oxford's "Medical Management Department confirmed that

16   participating providers were available to treat your condition,"

17   Letter from Clarissa Rodriguez to Geri Krauss dated Jan. 22,

18   2004, at 1.   Oxford did not respond to the Krausses' request for

19   the details of the CPT code used, how the UCR was calculated, or

20   on which Plan terms Oxford relied in denying their claim.

21             On January 26, 2004, the Krausses filed a Second-Level

22   appeal with Oxford's Grievance Review Board, asserting, among

23   other things, that Oxford had not complied with ERISA disclosure

24   requirements.    Some three weeks later, by letter dated February

25   19, 2004, Oxford acknowledged its receipt of the Krausses'

26   December letters and enclosed various Oxford documents that

                                       9
1    previously had not been disclosed to them, including its

2    Bilateral Surgery Policy.   This policy requires providers to

3    identify bilateral procedures with the "modifier -50" attached to

4    the standard billing code for the procedure at issue and

5    indicates that procedures so identified would "be reimbursed at

6    one and a half times the rate of the single procedure."    Oxford

7    "Bilateral Surgery Policy," effective July 14, 2003, at 1.    The

8    documents also disclosed that Oxford had sent Dr. Sultan, but not

9    the Krausses, an EOB related to his operating fee for the

10   bilateral breast reconstruction surgery that explained that the

11   "full [UCR] allowance is provided for the primary procedure and

12   50% of the UCR amount is allowed for the subsequent procedure."

13   Explanation of Benefits, June 13, 2003, at 1.

14             One week later, on February 26, 2004, the Krausses

15   responded by letter contending that the Bilateral Surgery Policy

16   was not set forth in their Plan's terms, had not been disclosed

17   in Oxford's previous denial letters, violated state and federal

18   laws requiring full compensation for post-mastectomy breast

19   reconstruction, and had not been applied in other bilateral

20   surgeries Mrs. Krauss had undergone.

21             By letter dated March 11, 2004, Oxford denied the

22   Krausses' Second-Level appeal.   Oxford asserted, for the first

23   time, that the appropriate UCR under the Plan is "the level that

24   90% of all doctors (not 100% of all doctors) in the location

25   would accept as full payment for the service," Letter from Karen

26   Cofield to Geri Krauss dated Mar. 11, 2004, at 1, and that the

                                      10
1    UCR for CPT code 19364-50 was $20,000, id. at 2.    The $30,000

2    reimbursement the Krausses received for the reconstruction

3    surgery represented 150% of the UCR for a single reconstruction.

4    The denial letter further stated that Oxford's Bilateral Surgery

5    Policy was "consistent with well-established industry standards

6    and in accordance with New York state insurance regulations," and

7    was "not conceal[ed] . . . , but rather, [had been]

8    publicize[d] . . . in its payment policies and on its

9    explanations of benefits."   Id. at 1-2.   Oxford further stated

10   that its disclosures "far exceed[ed]" what ERISA requires, id. at

11   2, and that references in earlier letters to the availability of

12   in-network providers referred to its understanding that the

13   Krausses were requesting an "in-network exception," i.e., an

14   exception to regular UCR rates that applies only if, unlike the

15   procedure undergone by Mrs. Krauss, no in-network provider is

16   available to perform it, id. at 3.

17             The ERISA Action

18             The Krausses responded to the denial of their

19   administrative appeals by instituting this action.    Their

20   complaint asserts claims for: (1) recovery of unpaid benefits

21   under ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B), on the

22   grounds that Oxford's denial of benefits violated the WHCRA and

23   the terms of the Plan; (2) breach of fiduciary duty in violation

24   of ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3), on the grounds that

25   Oxford failed to provide benefits owed to the Krausses and

26   improperly handled their claims for reimbursement and their

                                     11
1    appeals; (3) statutory damages under ERISA §§ 502(a)(3)(B)(1),

2    (c)(1), 29 U.S.C. §§ 1132(a)(3)(B)(1), (c)(1), in light of

3    Oxford's alleged failure to make timely disclosures and to

4    provide accurate reasons for the denials of their claims; (4) a

5    declaratory judgment barring the application of Oxford's

6    Bilateral Surgery Policy to post-mastectomy breast reconstruction

7    surgeries; and (5) costs and attorney's fees.

8               The parties filed cross-motions for summary judgment.

9    The district court granted Oxford's motion in all respects and

10   denied the plaintiffs'.    It concluded that the Bilateral Surgery

11   Policy did not violate either the WHCRA or the terms of the Plan,

12   Krauss, 418 F. Supp. 2d at 416, 425-32, and that the Krausses

13   could not recover the costs of the private-duty nurses because

14   private-duty nursing is expressly excluded from Plan coverage,

15   id. at 432-33.    As for the Krausses' breach of fiduciary duty

16   claim, the court determined that insofar as it was a demand for

17   unpaid benefits, it was nothing more than a re-assertion of their

18   claims for statutory damages.    Id. at 433.   The district court

19   further concluded that ERISA's statutory disclosure requirements

20   did not apply because Oxford was a claims administrator with

21   respect to the Krausses' claims, not a plan administrator.     Id.

22   at 434.   It also denied the request for an award of legal fees.

23              This appeal followed.

24                                DISCUSSION

25              I.   Standard of Review of the
26                   District Court's Determination


                                        12
1              "We review de novo a district court's ruling on

2    cross-motions for summary judgment, in each case construing the

3    evidence in the light most favorable to the non-moving party."

4    White River Amusement Pub, Inc. v. Town of Hartford, 481 F.3d

5    163, 167 (2d Cir. 2007).

6              II.   Claims for Unpaid Benefits

7              ERISA section 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B),

8    permits a participant or beneficiary of an ERISA-covered benefits

9    plan to bring a civil action "to recover benefits due to him

10   under the terms of his plan," id.    The Krausses seek recovery of

11   the unpaid portion of Dr. Sultan's breast reconstruction surgery

12   fee and the costs of private-duty nursing care, benefits they say

13   were owed to them either under the WHCRA or the terms of the

14   Plan.

15             As a threshold matter, the Krausses argue that the

16   district court erred in reviewing Oxford's benefits determination

17   and their arguments with respect thereto under the arbitrary and

18   capricious standard.   Because Oxford's UCR benefit determination

19   was not discretionary, they say, the court's review should have

20   been de novo.   On the merits, the Krausses contend (1) that

21   Oxford's application of its Bilateral Surgery Policy to Mrs.

22   Krauss's breast reconstruction surgery and its refusal to

23   reimburse them for the costs of post-operative private-duty

24   nursing care violate the terms of the WHCRA; (2) that even if the

25   Bilateral Surgery Policy complies with the WHCRA, its application

26   to the Krausses violates the terms of the Plan: it is not a UCR

                                     13
1    determination; was not properly disclosed; and was based upon an

2    underlying HIAA-based UCR figure derived from a sample size too

3    small to be meaningful; and (3) that the refusal to reimburse the

4    costs incurred for private-duty nursing was contrary to the

5    Plan's terms because the service was medically necessary and

6    within the Plan's description of what it covers under the WHCRA.

7    A.   Standard of Review of Oxford's Actions

8               "[A] denial of benefits challenged under [ERISA

9    § 502(a)(1)(B)] is to be reviewed under a de novo standard unless

10   the benefit plan gives the administrator or fiduciary

11   discretionary authority to determine eligibility for benefits or

12   to construe the terms of the plan."   Firestone Tire & Rubber Co.

13   v. Bruch, 489 U.S. 101, 115 (1989).   If the insurer establishes

14   that it has such discretion, the benefits decision is reviewed

15   under the arbitrary and capricious standard.    Fay v. Oxford

16   Health Plan, 287 F.3d 96, 104 (2d Cir. 2002).    Ambiguities are

17   construed in favor of the plan beneficiary.    Id.

18              A reservation of discretion need not actually
19              use the words "discretion" or "deference" to
20              be effective, but it must be clear. Examples
21              of such clear language include authorization
22              to "resolve all disputes and ambiguities," or
23              make benefits determinations "in our
24              judgment." In general, language that
25              establishes an objective standard does not
26              reserve discretion, while language that
27              establishes a subjective standard does.

28   Nichols v. Prudential Ins. Co. of America, 406 F.3d 98, 108 (2d

29   Cir. 2005) (quoting Kinstler v. First Reliance Standard Life Ins.

30   Co., 181 F.3d 243, 251 (2d Cir. 1999)).


                                     14
1              We agree with the district court that the Plan

2    conferred discretionary authority on Oxford to make benefits

3    determinations.   Two clauses within the Plan's Supplemental

4    Certificate governing care provided by out-of-network providers

5    are relevant.   The first appears under the heading "General

6    Provisions" and states that Oxford "may adopt reasonable

7    policies, procedures, rules, and interpretations to promote the

8    orderly and efficient administration of this Certificate . . . ."

9    Suppl. Certificate, Sec. XI ("General Provisions"), ¶ 10.      The

10   second is within the definition of UCR charges itself.   It states

11   that the UCR charge is either "[t]he amount charged or the amount

12   We [sic] determine to be the reasonable charge, whichever is

13   less . . . ."   Id. Sec. XII ("Definitions").

14             Despite a lack of clarity in our precedents as to what

15   language conveys sufficient discretion to an administrator to

16   require courts' "arbitrary and capricious" rather than de novo

17   review of its actions, we conclude that the quoted language of

18   the Oxford Plan does so.6   The ability to "adopt reasonable

19   policies, procedures, rules and interpretations to promote" the

20   administration of a Certificate of Coverage has been cited as an

21   example of the requisite discretionary authority by the Fourth

22   Circuit, see Feder v. Paul Revere Life Ins. Co., 228 F.3d 518,


          6
             "[A]ppellate judges are divided on the issue of what
     language suffices to convey to plan administrators the
     discretionary authority that warrants the more deferential
     arbitrary and capricious standard of review." Kinstler, 181 F.3d
     at 251. As a result, circuits have offered different conclusions
     regarding the discretionary authority conveyed by the same or
     similar statutory language. Id. (citing examples).
                                     15
1    523 (4th Cir. 2000) (citing Bernstein v. CapitalCare, Inc., 70

2    F.3d 783, 788 (4th Cir. 1995)).    It also seems to us akin to

3    authority to "resolve all disputes and ambiguities relating to

4    the interpretation" of a benefits plan, language that we have

5    previously characterized as sufficient to trigger arbitrary and

6    capricious, rather than de novo, review.    Ganton Techs., Inc. v.

7    Nat'l Indus. Group Pension Plan, 76 F.3d 462, 466 (2d Cir. 1996).

8              Moreover, Oxford's UCR definition, which provides that

9    the UCR charge is the lesser of the amount charged or the amount

10   Oxford "determine[s] to be the reasonable charge," confers upon

11   Oxford discretionary authority regarding one of the Plan terms

12   here at issue: UCR charges.   To be sure, our opinions regarding

13   the bestowal of discretion by use of the verb "determine" provide

14   little guidance.   Compare Fay, 287 F.3d at 104 (concluding that

15   the benefit plan there considered "invoke[d] discretion by

16   defining 'Medically Necessary' as those services which, 'as

17   determined by [the] . . . Medical Director,' meet four listed

18   requirements" (emphasis in original) (second alteration in

19   original) (quoting benefits plan)), with Nichols, 406 F.3d at

20   108-09 (finding, without citation to Fay, that plan language to

21   the effect that a disability "exists when [the insurer]

22   determines that" each of several specified conditions was met did

23   not confer discretionary authority because the language required

24   that the insurer's decisionmaking power be constrained by

25   "objective standards").   But we think that where, as here, the

26   terms of a benefits plan grant the defendant the right to

                                       16
1    "determine" what constitutes a "reasonable charge," and the only

2    source that might bear on what is reasonable is "data compiled by

3    [HIAA] and other recognized [but unspecified] sources," Suppl.

4    Certificate, Sec. I, subsec. 7 ("Your Financial Obligations"),

5    the Plan confers discretion to determine which sources to rely

6    upon in determining the UCR charge in any given circumstance.

7              Oxford exercised that discretion in applying the

8    Bilateral Surgery Policy to the Krausses' claim for benefits

9    related to Dr. Sultan's fee.   Accordingly, we will decide whether

10   doing so was arbitrary or capricious, that is, if it was "without

11   reason, unsupported by substantial evidence or erroneous as a

12   matter of law."7   Fay, 287 F.3d at 104 (internal quotation marks

13   and citations omitted); see also Miller v. United Welfare Fund,

14   72 F.3d 1066, 1072 (2d Cir. 1995) ("Substantial evidence . . . is

15   such evidence that a reasonable mind might accept as adequate to

16   support the conclusion reached by the decisionmaker and requires



          7
             The Krausses' additional arguments for de novo review are
     without merit. To contend that Oxford's application of the
     Bilateral Surgery Policy was not a discretionary decision because
     it simply "mechanically applied a formula," Appellants' Br. at
     53, ignores the fact that the decision to enact the Bilateral
     Surgery Policy was itself a discretionary decision in the first
     instance. And the fact that the New York State Insurance
     Department at one time concluded that the use of discretionary
     clauses "encourage misrepresentation or are unjust, unfair,
     inequitable, misleading, deceptive, or contrary to law or to the
     public policy" of New York, see Circular Letter No. 8 (2006),
     Mar. 27, 2006, available at http://www.ins.state.
     ny.us/cl06_08.htm (last visited Jan. 4, 2008), is irrelevant --
     that conclusion was later withdrawn, id., and the proposed
     regulations would not apply retroactively to the Krausses'
     claims, see Circular Letter No. 14 (2006), June 29, 2006,
     available at http://www.ins.state.ny.us/cl06_14.htm (last visited
     Feb. 25, 2008).
                                     17
1    more than a scintilla but less than a preponderance." (internal

2    quotation marks and citations omitted)).

3               Separately, the Krausses' challenge under the WHCRA,

4    see section II.B., below, raises questions of law which we review

5    de novo.   See Miller, 72 F.3d at 1072 (benefits determination is

6    arbitrary and capricious if it is legally erroneous).

7               With respect to the Krausses' claim for reimbursement

8    for private-duty nursing care, however, we assume, viewing the

9    facts in the light most favorable to them as we must, that Oxford

10   failed to inform them regarding the benefits determination made

11   with respect to the nurses.   We previously concluded, based on

12   since-revised regulations, that failure to respond to a plan

13   participant's claim within the time-frame established by the

14   Department of Labor's regulations rendered the claim "deemed

15   denied" and the participant's subsequent ERISA challenge to the

16   benefits determination subject to de novo review.   See Nichols,

17   406 F.3d at 105, 109 (relying on 29 C.F.R. § 2560.503-1(h)(4)

18   (1999)).   Although amended regulations have replaced the "deemed

19   denied" provision with one that, upon a defendant's failure to

20   follow regulatory time frames, deems a plaintiff's administrative

21   remedies exhausted, see 29 C.F.R. § 2560.503-1(l), and neither we

22   nor any other circuit has, to our knowledge, addressed whether de

23   novo review similarly applies under the revised regulations, we

24   join our sister circuits in delaying resolution of the question

25   for another day.   See Bard v. Boston Shipping Ass'n, 471 F.3d

26   229, 236 (1st Cir. 2006); Gatti v. Reliance Std. Life Ins. Co.,

                                     18
1    415 F.3d 978, 982 n.1 (9th Cir. 2005); Finley v. Hewlett-Packard

2    Co. Employee Benefits Org. Income Protection Plan, 379 F.3d 1168,

3    1175 n.6 (10th Cir. 2004).     For the reasons stated below, even

4    assuming a de novo standard of review applies, we would deny the

5    Krausses' claim for compensation for the private-duty nursing

6    care under ERISA section 502(a)(1)(B).

7    B.   The WHCRA

8               1.    Dr. Sultan's Fees.     The Krausses contend that under

9    the WHCRA, the Plan was obligated to provide full reimbursement

10   to them for Dr. Sultan's fee for Mrs. Krauss's bilateral

11   reconstructive surgery.     They also argue that the WHCRA requires

12   reimbursement of the costs associated with the private-duty

13   nursing care provided to her because it was pursuant to a medical

14   decision made by her physician regarding the "manner" in which

15   her breast reconstruction surgery would be carried out.

16              The WHCRA provides, in relevant part, that a group

17   health plan that provides insurance coverage for mastectomies

18   must also provide coverage for a subsequent breast reconstruction

19   surgery:

20              (a) In general. A group health
21              plan . . . shall provide, in a case of a
22              participant or beneficiary who is receiving
23              benefits in connection with a mastectomy and
24              who elects breast reconstruction in
25              connection with such mastectomy, coverage
26              for --
27                   (1) all stages of reconstruction of the
28                   breast on which the mastectomy has been
29                   performed . . . in a manner determined
30                   in consultation with the attending
31                   physician and the patient. Such
32                   coverage may be subject to annual
                                        19
1                deductibles and coinsurance provisions
2                as may be deemed appropriate and as are
3                consistent with those established for
4                other benefits under the plan or
5                coverage. . . .

6              . . . .

 7             (d) Rule of construction. Nothing in this
 8             section shall be construed to prevent a group
 9             health plan or a health insurance issuer
10             offering group health insurance coverage from
11             negotiating the level and type of
12             reimbursement with a provider for care
13             provided in accordance with this section.

14   29 U.S.C. § 1185b (emphasis added).

15             As to their claim for reimbursement of Dr. Sultan's

16   fee, the gist of the Krausses' arguments is that the statutory

17   language providing that insurers may limit their coverage by

18   requiring "annual deductibles and coinsurance" precludes insurers

19   from applying any other "cost-sharing" mechanisms that would

20   render plan participants responsible for a portion of the

21   procedure's costs.   Because the statutory language of similar

22   legislation provides explicitly for the use of other "cost-

23   sharing" mechanisms in addition to deductibles and coinsurance,

24   they insist, the statutory maxim expressio unius est exclusio

25   alterious ("to express one thing is to exclude another") applies:

26   Congress, by omitting the term "cost-sharing" from the WHCRA,

27   must have intended to preclude insurers from imposing cost-

28   sharing mechanisms, such as the UCR-limited reimbursement at

29   issue here, to post-mastectomy breast reconstruction surgeries.

30             We agree with Oxford, however, that the WHCRA requires

31   only that insurers "cover[]" such surgeries in a manner

                                     20
1    "consistent" with the policies "established for other benefits

2    under the plan."   29 U.S.C. § 1185b(a).   "[T]he canon that

3    expressing one item of a commonly associated group or series

4    excludes another left unmentioned is only a guide, whose

5    fallibility can be shown by contrary indications that adopting a

6    particular rule or statute was probably not meant to signal any

7    exclusion of its common relatives."   United States v. Vonn, 535

8    U.S. 55, 65 (2002).   "The canon depends on identifying a series

9    of two or more terms or things that should be understood to go

10   hand in hand . . . ."   Chevron U.S.A. Inc. v. Echazabal, 536 U.S.

11   73, 81 (2002).

12             Here, the Krausses cite the Newborns' and Mothers'

13   Health Protection Act and the Mental Health Parity Act, Pub. L.

14   No. 104-204, §§ 601-606, 701-703, 110 Stat. 2874, 2935-50 (1996)

15   (codified at 29 U.S.C. §§ 1185-1185a), in support of their

16   contention that Congress intended under the WHCRA to preclude

17   insurers from imposing cost-sharing mechanisms apart from

18   deductibles and coinsurance.   These two provisions contain "Rule

19   of Construction" subsections that specifically refer to "cost-

20   sharing," whereas the WHCRA refers only to "annual deductibles

21   and coinsurance provisions," without reference to other cost-

22   sharing devices.

23             The Newborns' and Mothers' Health Protection Act

24   provides that "deductibles, coinsurance, or other cost-sharing"

25   mechanisms are permissible so long as the mechanism imposed is

26   not "greater than such coinsurance or cost-sharing" required for

                                     21
1    the portion of a newborn's or mother's hospital stay following

2    birth that would have been covered regardless of the Act's

3    provisions.    29 U.S.C. § 1185(c)(3) ("Nothing in this section

4    shall be construed as preventing a group health plan or issuer

5    from imposing deductibles, coinsurance, or other cost-sharing in

6    relation to benefits . . . except that such coinsurance or other

7    cost-sharing . . . may not be greater than such coinsurance or

8    cost-sharing for any preceding portion of [the hospital] stay.").

9    The Mental Health Parity Act, in turn, references "cost sharing,

10   limits on numbers of visits or days of coverage, and requirements

11   relating to medical necessity" as examples of "the terms and

12   conditions . . . relating to the amount, duration, or scope of

13   mental health benefits," which the Act, Congress said, should not

14   be construed as "affecting."    Id. § 1185a(b)(2) ("Nothing in this

15   section shall be construed . . . as affecting the terms and

16   conditions (including cost-sharing, limits on numbers of visits

17   or days of coverage, and requirements relating to medical

18   necessity) relating to the amount, duration, or scope of mental

19   health benefits under the plan or coverage . . . .").    Similarly,

20   the WHCRA refers to "annual deductibles and coinsurance

21   provisions" that "may" be imposed so long as they are "consistent

22   with those established for other benefits under the plan or

23   coverage."    Id. § 1185b(a).   The WHCRA further provides that the

24   Act should not be interpreted to preclude health plans from

25   negotiating with providers regarding the "level and type of



                                       22
1    reimbursement . . . for care provided in accordance with [the

2    WHCRA]."   Id. § 1185b(d).

3               These provisions are plainly not an "associated group

4    or series" that would be "understood to go hand in hand," such

5    that "it is fair to suppose that Congress considered the unnamed

6    possibility [of other cost-sharing mechanisms] and meant to say

7    no to it."   Barnhart v. Peabody Coal Co., 537 U.S. 149, 168

8    (2003) (internal quotation marks and citations omitted); see also

9    id. (stating that the series must warrant "the inference that

10   items not mentioned were excluded by deliberate choice, not

11   inadvertence").    Each of the subsections the Krausses cite does

12   no more than use similar language to express essentially the same

13   idea: that the three statutory provisions -- which create a

14   substantive floor for three different types of coverage -- should

15   not be construed to create specific rules regarding the means by

16   which the statutorily mandated categories of services are

17   provided or to permit insurers to impose upon plan beneficiaries

18   additional cost-sharing responsibilities beyond what their plan

19   already requires for similar benefits.

20              The legislative history of the WHCRA supports our

21   understanding that Congress's reference to "annual deductibles

22   and coinsurance" was intended to be illustrative, rather than

23   exclusionary.    The relevant pages of the Congressional Record do

24   not mention the words "cost-sharing," "deductible," or

25   "coinsurance."    See 144 Cong. Rec. S.4644-50 (1998).   Congress

26   enacted the legislation to ensure that women who underwent

                                      23
1    mastectomies would not be denied coverage for reconstructive

2    surgery on the ground that it was cosmetic.   Id. at S.4644, 4650.

3              The Krausses point to the stated Congressional goal of

4    making women "complete" and "whole" following their mastectomies,

5    see id. at S.4649, and argue that this statutory purpose supports

6    interpreting the statutory provision for deductibles and

7    coinsurance to preclude other cost-sharing devices.   We do not

8    think that this legislative goal forecloses cost-sharing

9    consistent with other terms of a plan.   Congress was plainly

10   focused on the question of coverage vel non; it was not concerned

11   with the precise details of the coverage to be provided.    As the

12   district court noted, Congress surely did not contemplate that

13   "restor[ing] a woman's wholeness," id., required insurers to

14   cover 100 percent of the amount billed by the surgeon -- whatever

15   that might be -- less only any applicable deductions and

16   coinsurance provisions, regardless of the other terms and

17   conditions of a plan.   Krauss, 418 F. Supp. 2d at 427.   The

18   district court succinctly captured the fundamental illogic of the

19   Krausses' argument:   "Nothing in the legislative history

20   affirmatively indicates that the insurer must offer better

21   coverage for breast reconstruction than it offers for the

22   mastectomies that necessitate them . . . . [I]t defies logic to

23   assume that Congress would have imposed such a requirement sub

24   silentio, or by negative inference."   Id. at 426.

25             In sum, the WHCRA includes an express statement of

26   permission as to deductibles and coinsurance and is silent as to

                                     24
1    other cost-sharing possibilities; each of the three similar

2    statutory provisions includes analogous language to ensure that

3    insurers apply the same devices to control costs of mandated

4    benefits that they employ for benefits unrelated to the statutory

5    provisions, but only sometimes uses the inclusive term "cost-

6    sharing"; and the legislative history of the WHCRA is silent

7    regarding the entire concept of insurer-instituted cost control

8    mechanisms.     Under these circumstances, we cannot conclude that

9    Congress, in failing to provide explicit permission for insurers

10   to use other "cost-sharing" devices besides deductibles and

11   coinsurance when providing "coverage" for breast reconstruction

12   surgery, intended to limit permissible cost-sharing mechanisms to

13   the two specifically mentioned.    Oxford's application of UCR

14   limits and, specifically, the Bilateral Surgery Policy, to Mrs.

15   Krauss's surgery therefore did not violate the WHCRA.

16              2.   Private-Duty Nursing.   Parallel reasoning applies

17   to the Krausses' claim under the WHCRA for reimbursement for

18   private-duty nursing care.    We see nothing in the statute to

19   support a reading that requires an insurer to pay for private-

20   duty nurses where such services are not otherwise covered and

21   where post-operative care in a different form could have

22   satisfied the patient's medical needs as identified by her

23   doctor.   That the WHCRA requires coverage for "all stages of

24   reconstruction of the breast on which the mastectomy has been

25   performed . . . in a manner determined in consultation with the

26   attending physician and the patient," 29 U.S.C. § 1285b(a)(1),

                                       25
1    does not, we think, categorically override every plan's specific

2    exclusion of private-duty nursing care in these circumstances.

3    See Suppl. Certificate, Sec. IV ("Exclusions and Limitations"),

4    ¶ 28.   We cannot reconcile such an interpretation with the

5    WHCRA's focus upon ensuring that breast reconstruction surgeries

6    are covered co-extensively with other surgeries under a

7    beneficiary's plan.

8    C.   The Plan's Terms

9               The Krausses next argue that application of the

10   Bilateral Surgery Policy to their claim for reimbursement for the

11   reconstruction surgery and the denial of any reimbursement for

12   the private-duty nursing care violated the terms of the Plan.

13   They contend that the Bilateral Surgery Policy is not a UCR

14   determination, was not properly disclosed, and was derived from

15   an underlying HIAA-based UCR figure that was unreliable.     They

16   further assert that the private-duty nursing care was a service

17   "related" to the reconstruction surgery that came within Oxford's

18   pre-certification of the procedure.    We conclude, however, that

19   Oxford's decision to apply the Bilateral Surgery Policy is

20   supported by substantial evidence, and that even under de novo

21   review, the explicit exclusion of private-duty nursing care by

22   the Plan governs the Krausses' claims.

23              1.   Bilateral Surgery Policy.   We find the Krausses'

24   assertion that the Bilateral Surgery Policy violates the Plan's

25   terms to be meritless, largely because it fails to give effect to

26   the breadth of Oxford's UCR definition and description contained

                                      26
1    in the Supplemental Certificate.   In Section I, paragraph 7, the

2    Supplemental Certificate states that UCR fee schedules are

3    calculated by "using data compiled by the [HIAA] and other

4    recognized sources," Suppl. Certificate, Sec. I, subsec. 7

5    (emphasis added).   Its "definition" of "UCR" accords Oxford the

6    discretion to employ an amount it deems "reasonable . . . for a

7    particular Covered Service in the geographical area it is

8    performed."   Id., Sec. XII ("Definitions").   Nothing in the

9    Plan's terms forbids Oxford from adopting a UCR based not only on

10   HIAA data, but on some other "recognized" source.8

11             The Bilateral Surgery Policy, while arguably less than

12   generous, comports with, and is based upon, Medicare's policy.

13   See Medicare Part B Reference Manual § 22.1(e)(1), at 22-8

14   (2006), available at http://www.highmarkmedicareservices.com

15   /partb/refman/pdf/chapter22.pdf (last visited Feb. 25, 2008)

16   ("Payment for claims reporting bilateral procedures will be based

17   on 150% of the fee schedule amount."); Certification of David H.

18   Finley, M.D., ¶ 18 ("Oxford's Bilateral Surgery policy is based

19   upon healthcare industry standards, customs, and practices,

20   including the policies established by Medicare.").    The

21   reimbursement rate of 150% of UCR was based, therefore, on both

22   HIAA data and a "recognized source" (Medicare).    That the

23   Bilateral Surgery Policy describes HIAA data as "the UCR," does

24   not, we think, preclude Oxford from treating the Bilateral


          8
             The Krausses do not challenge Oxford's decision to rely
     on HIAA data as a general matter. We therefore assume for
     purposes of this opinion that such reliance was proper.
                                     27
1    Surgery Policy as having determined the Krausses' UCR in this

2    instance.    Of course, Oxford and its members would likely benefit

3    from greater precision and less self-referential language in

4    Oxford's references to what constitutes "the UCR," see, e.g.,

5    Letter from Karen Cofield, Grievance Associate, Oxford Health

6    Plans, to Geri Krauss dated Mar. 11, 2004, at 1 (referring to

7    amount paid under Bilateral Surgery Policy as "the UCR" and to

8    the HIAA-derived payment level and application of the Bilateral

9    Surgery Policy thereto as "150% of the UCR").    But because the

10   terms of the Supplemental Certificate indicate that Oxford did

11   not intend the UCR charge necessarily to be equivalent to the

12   HIAA amount, and because we, like the district court, are

13   unprepared to conclude that Medicare's policy is arbitrary and

14   capricious, Krauss, 418 F. Supp. 2d at 428, we cannot conclude

15   that Oxford's decision to apply the Bilateral Surgery Policy to

16   determine the "reasonable" charge for Mrs. Krauss's surgery was

17   an arbitrary or capricious application of the Plan.

18               There is also an insufficient basis for questioning

19   Oxford's determination of what specific reimbursement rate

20   applied to the Krausses' claim under the Bilateral Surgery

21   Policy.   Although the underlying HIAA-derived reimbursement rate

22   of $20,000 for a single breast reconstruction was based on only

23   ten comparable procedures, the Krausses do not challenge that the

24   ten-procedure sample used to arrive at the $20,000 rate was based

25   upon doctors' charges in Manhattan for the specific type of

26   breast reconstruction surgery Mrs. Krauss underwent or that

                                      28
1    Oxford derived the $20,000 amount from HIAA data, "Surgical

2    Prevailing Healthcare Charges System, 11/10/01-11/09/02," a

3    standard industry source.    See, e.g., N.J. Admin. Code § 11:21-

4    7.13(a) (defining "reasonable and customary" charges for small

5    business health plans as "a standard based on the Prevailing

6    Healthcare Charges System profile for New Jersey or other state

7    when services or supplies are provided in such state,

8    incorporated herein by reference published and available

9    from . . . Ingenix, Inc. . . .").      Moreover, that Dr. Sultan

10   received varying reimbursement amounts from Oxford for the same

11   procedure performed on other patients during the period Mrs.

12   Krauss underwent her reconstruction surgery does not demonstrate

13   arbitrariness by Oxford in determining its reimbursement rate.

14   The Plan entitled the Krausses to reimbursement at the equivalent

15   of "90th percentile HIAA data."    Letter from Karen Cofield to

16   Geri Krauss dated Mar. 11, 2004, at 3.      The record does not

17   reveal what percentile applied to the benefit plans of Dr.

18   Sultan's other patients.

19              2.   Private-Duty Nursing.    Oxford's decision not to

20   reimburse the Krausses for the costs of private-duty nursing care

21   following the reconstruction surgery also did not violate the

22   Plan.   Reviewing de novo the Krausses' claim under the contract

23   for compensation, we agree with the district court that the

24   Plan's explicit and unambiguous exclusion of "[p]rivate or

25   special duty nursing" from coverage, Suppl. Certificate, Sec. IV

26   ("Exclusions and Limitations"), ¶ 28, controls.      The fact that

                                       29
1    Oxford pre-certified Mrs. Krauss's surgery knowing that it would

2    require post-operative care, or that it characterized the WHCRA

3    as requiring it to "cover reconstructive surgery or related

4    services following a mastectomy," does not obligate Oxford,

5    contractually or otherwise, to pay for post-operative care or

6    services "related" to Mrs. Krauss's operation by any and all

7    means -- certainly not by a method of care expressly excluded

8    from coverage under the Plan.9

9               We do not mean to imply that Mrs. Krauss should not

10   have opted for the type of post-operative care that she and her

11   doctor thought would be the most effective.   We are sympathetic

12   to the Krausses' arguments that post-operative care was required,

13   and that Dr. Sultan recommended that the care be provided in the

14   form of private-duty nursing.    We also find some merit in their

15   contention that private-duty nurses may have been more cost

16   effective than similar care to which she would have been entitled

17   had she been treated in the hospital's intensive care unit

18   instead.   But we think the Krausses' health care plan was amply


          9
            Juliano v. Health Maintenance Organization of New Jersey,
     Inc., 221 F.3d 279 (2d Cir. 2000) and Miller v. United Welfare
     Fund, 72 F.3d 1066 (2d Cir. 1995), upon which the Krausses rely,
     are not to the contrary. Neither case concerned benefit plans
     which excluded private-duty nursing from coverage. Juliano, 221
     F.3d at 283 ("USH did not claim that private duty nursing was not
     a covered benefit."); Miller, 72 F.3d at 1070 (insurer denied
     benefits for private-duty nursing on grounds that it was not
     medically necessary). The Krausses here do not deny that Mrs.
     Krauss's post-operative medical needs could have been met had she
     stayed in an ICU. See Appellants' Br. at 51 ("[E]xclusion is not
     justified merely because Dr. Sultan required [post-operative]
     monitoring be done by specially trained private nurses rather
     than in the ICU, especially since he believed that to be the less
     expensive alternative." (emphasis omitted)).
                                     30
1    clear that the nursing care she chose was not covered.      The

2    Krausses are, in these circumstances, bound by the terms of their

3    contract.    On these facts, Oxford was under no obligation to

4    reimburse the Krausses for costs associated with the private-duty

5    nursing care she received.

6                III.    Claims for Breach of Fiduciary Duty

7                The Krausses also bring a claim for breach of fiduciary

8    duty pursuant to ERISA § 502(a)(3), which authorizes a civil

9    action

10               by a participant, beneficiary, or fiduciary
11               (A) to enjoin any act or practice which
12               violates any provision of this subchapter or
13               the terms of the plan, or (B) to obtain other
14               appropriate equitable relief (i) to redress
15               such violations or (ii) to enforce any
16               provisions of this subchapter or the terms of
17               the plan.

18   29 U.S.C. § 1132(a)(3).      Specifically, the Krausses assert that

19   Oxford breached that duty by failing to disclose certain

20   information, by making false and affirmative misrepresentations

21   regarding the true reason for denying their claims for

22   reimbursement, and by failing to act on the Krausses' claims and

23   appeals in a timely manner.

24               We have held that when an ERISA fiduciary deals

25   unfairly with a plan's beneficiaries, a claim for breach of

26   fiduciary duty may lie under ERISA § 502(a)(3), 29 U.S.C.

27   § 1132(a)(3).      See Frommert v. Conkright, 433 F.3d 254, 269-72

28   (2d Cir. 2006); Devlin v. Empire Blue Cross & Blue Shield, 274

29   F.3d 76, 88-89 (2d Cir. 2001), cert. denied, 537 U.S. 1170


                                        31
1    (2003).   Here, however, we conclude that the Krausses are not

2    entitled to relief.

3               First, the Krausses cannot recover money damages

4    through their claim for breach of fiduciary duty.     In order to

5    state a claim under ERISA section 502(a)(3), "the type of relief

6    a plaintiff requests must . . . be 'equitable.'"     Coan v.

7    Kaufman, 457 F.3d 250, 264 (2d Cir. 2006).     Claims for money

8    damages are therefore not cognizable under section 502(a)(3).

9    Id. at 263-64; see also Gerosa v. Savasta & Co., 329 F.3d 317,

10   321 (2d Cir.), cert. denied, 540 U.S. 967 (2003).

11              Second, in arguing that Oxford mishandled their claim

12   through nondisclosure, misleading statements, and untimely

13   responses, the Krausses are in essence claiming that Oxford

14   denied them the full and fair review to which they were entitled

15   under ERISA § 503(2), 29 U.S.C. § 1133(2).10    A full and fair

16   review concerns a beneficiary's procedural rights, for which the

17   typical remedy is remand for further administrative review.       See

18   Weaver v. Phoenix Home Life Mut. Ins. Co., 990 F.2d 154, 159 (4th

19   Cir. 1993); VanderKlok v. Provident Life & Accident Ins. Co., 956

20   F.2d 610, 616-17 (6th Cir. 1992); Wolfe v. J.C. Penney Co., 710

21   F.2d 388, 393- 94 (7th Cir. 1983).   Here, however, now that the

22   relevant information has been finally disclosed, we are confident

23   that administrative remand would be futile.     See Miller, 72 F.3d


          10
            Section 503(2) provides that "every employee benefit plan
     shall . . . 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(2).
                                     32
1    at 1071 (ERISA remand not required where it would be a "useless

2    formality" (internal quotation marks and citations omitted)).

3    Oxford's benefits determination, even if not properly explained

4    at the time of denial and during administrative review, was, as a

5    substantive matter, an appropriate implementation of the

6    Bilateral Surgery Policy under the Plan.     We therefore conclude

7    that the Krausses are not entitled to relief for breach of

8    fiduciary duty.

9               IV.   Remaining Claims

10              The Krausses make several other claims.    We find them

11   each to be without merit.

12   A.   Statutory Damages

13              We agree with the district court, Krauss, 418 F. Supp.

14   2d at 434, that since Oxford is not "the person specifically so

15   designated by the terms of the instrument under which the plan is

16   operated," 29 U.S.C. § 1002(16)(A)(i), it is not a plan

17   "administrator" within the meaning of ERISA § 502(c)(1), 29

18   U.S.C. § 1132(c)(1).     The Krausses therefore cannot recover

19   statutory damages under that provision of ERISA for Oxford's

20   nondisclosure of certain information.     See Lee v. Burkhart, 991

21   F.2d 1004, 1010 n.5 (2d Cir. 1993); Davis v. Liberty Mut. Ins.

22   Co., 871 F.2d 1134, 1138 (D.C. Cir. 1989).

23   B.   Declaratory Relief

24              For substantially the same reasons that we reject the

25   Krausses' claims for unpaid benefits and damages relating to


                                         33
1    Oxford's Bilateral Surgery Policy, their claim for declaratory

2    relief also fails.

3    C.   Attorney's Fees

4               The district court's denial of attorney's fees and

5    costs was within its sound discretion.   29 U.S.C. § 1132(g)(1);

6    Chambless v. Masters, Mates & Pilots Pension Plan, 815 F.2d 869,

7    871 (2d Cir. 1987).

8    D.   Documents Outside the Record

9               We disagree with the Krausses' position as to Oxford's

10   submission on summary judgment of certain documents that were not

11   in the administrative record.   We have repeatedly said that a

12   district court's decision to admit evidence outside the

13   administrative record is discretionary, "but which discretion

14   ought not to be exercised in the absence of good cause."    Juliano

15   v. Health Maint. Org. of New Jersey, Inc., 221 F.3d 279, 289 (2d

16   Cir. 2000) (internal quotation marks and citation omitted).     The

17   Krausses, although failing to invoke this standard of review,

18   argue that the district court acted in a manner "patently

19   improper" because it admitted materials outside the

20   administrative record, relied upon them, and then criticized the

21   Krausses for failing to present contrary evidence.    Appellants'

22   Br. at 63.   But the Krausses have not told us whether they

23   challenged Oxford's submissions before the district court;

24   identified the contents of the erroneously admitted evidence or

25   whether or why there was not good cause for its admission; or

                                     34
1    detailed precisely how, beyond conclusory statements regarding

2    the inability to obtain discovery that they offer no proof of

3    ever having requested, they suffered prejudice as a result of the

4    error.    We need not decide whether the Krausses' arguments were

5    sufficiently set forth to preserve appellate review of the

6    matter.    See Tolbert v. Queens Coll., 242 F.3d 58, 75 (2d Cir.

7    2001) ("It is a settled appellate rule that issues adverted to in

8    a perfunctory manner, unaccompanied by some effort at developed

9    argumentation, are deemed waived." (citation and internal

10   quotation marks omitted)).    Under these circumstances, the

11   Krausses have failed to demonstrate that the district court

12   lacked good cause for its decision to consider the challenged

13   documents.

14                                CONCLUSION

15               For the foregoing reasons, the judgment of the district

16   court is affirmed.




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