Lead Opinion
Plaintiff-Appellant Ariana M. challenges Defendant-Appellee Humana Health Plan of Texas’s denial of coverage for continued partial hospitalization. After reviewing the administrative record, the district court granted Defendant’s motion for summary judgment. We AFFIRM.
I.
Plaintiff is a dependent eligible for benefits under the Eyesys Vision Inc. group health plan (the “Plan”), which is insured and administrated by Humana. The Plan’s benefits include coverage for partial hospitalization for mental health treatment. However, benefits are payable only for treatments that are “medically necessary.” “Medically necessary” is defined as
health care services that a health care practitioner exercising prudent clinical judgment would provide to his or her patient for the purpose of preventing, evaluating, diagnosing or treating an illness or bodily injury, or its symptoms. Such health care service must be:
• In accordance with nationally recognized standards of medical practice;
• Clinically appropriate in terms of type, frequency, extent, site and duration, and considered effective for the patient’s illness or bodily injury;
• Not primarily for the convenience of the patient, physician or other health care provider; and
• Not more costly than an alternative service or sequence of services at least as likely to produce equivalent therapeutic or diagnostic results as to the diagnosis or treatment of the patient’s sickness or bodily injury.
For the purpose of medically necessary, generally accepted standards of medical practice means standards that are based on credible scientific evidence published in peer-reviewed medical literature generally recognized by the relevant medical community, Physician Specialty Society recommendations, the*756 views of physicians practicing in relevant clinical areas and any other relevant factors.
Plaintiff has a long history of mental illness, eating disorders, and engaging in self-harm. On April 15, 2013, Plaintiff was admitted to Avalon Hills’s intensive partial hospitalization program. Partial hospitalization refers to a level of care in which a patient attends medical programming for approximately eight hours per day. This form of care is more intensive than either intensive outpatient or outpatient care.
Defendant initially found the treatment medically necessary and approved partial hospitalization through April 19, 2013, ultimately extending authorization through June 4, 2013, for a total of 49 days. On June 5, 2013, Defendant denied continued partial hospitalization treatment, finding that it was no longer medically necessary. In making its determination, Defendant asked two doctors to review Plaintiffs medical treatment, using the Mihalik criteria, a privately licensed review criteria created by the Mihalik Group.
Plaintiff filed her Complaint on November 7, 2014. On February 12, 2015, Plaintiff filed a motion to determine the standard of review, arguing that Defendant’s denial of benefits should be reviewed de novo. Defendant responded, conceding that de novo review applies to plan term interpretations; however, Defendant also noted that under Fifth Circuit law, even when de novo review applies, factual determinations are reviewed for abuse of discretion. Noting the parties’ agreement, the district court granted Plaintiffs motion. Defendant next filed a motion for summary judgment along with the administrative record. Plaintiff responded. The district court granted the motion for summary judgment. Plaintiff appealed.
II.
Plaintiff argues that the district court erred by applying an abuse of discretion, instead of a de novo, standard to assess Defendant’s factual determinations. We disagree.
The Employee Retirement Income Security Act of 1974’s (“ERISA”) text “does not directly resolve” the question of the appropriate standard of review of an ERISA plan administrator’s decision to deny plan benefits. Conkright v. Frommert,
In Pierre v. Connecticut General Life Insurance Co./Life Insurance Co. of North America,
Plaintiff argues that Pierre deference does not apply here because Texas’s anti-discretionary clause law mandates de novo review. Texas Insurance Code Section 1701.062(a) provides that “[a]n insurer may not use a document described by Section 1701.002 [among other things, policies for health and medical insurance] in this state if the document contains a discretionary clause.” Tex. Ins. Code § 1701.062(a). Under the statute, discretionary clauses include any provision that “purports or acts to bind the claimant to, or grant deference in subsequent proceedings to, adverse eligibility or claim decisions or policy interpretations by the insurer” or “specifies ... a standard of review in any appeal process that gives deference to the original claim decision or provides standards of interpretation or review that are inconsistent with the laws of this state, including the common law.” Tex. Ins. Code § 1701.062(b)(1), (2)(D).
Plaintiff argues that these provisions, taken together, required the district court to review Humana’s factual findings de novo. We disagree. The plain text of the statute provides only that a discretionary clause cannot be written into an insurance policy; it does not mandate a standard of review. As always, statutory interpretation begins “with the plain language and structure of the statute.” Coserv Ltd. Liab. Corp. v. Sw. Bell Tel. Co.,
Accordingly, we find that Texas’s anti-discretionary clause law does not change this court’s normal Pierre deference.
Plaintiff next argues that the district court erred in granting Defendant summary judgment even if an abuse of discretion standard applies. Plaintiff raises two issues. First, she argues that Defendant erred by using the Mihalik criteria, instead of the raw Plan terms or the American Psychiatric Association’s Practice Guidelines, to assess medical necessity. Second, she argues that under any criterion, her continued partial hospitalization was medically necessary. We disagree.
“Standard summary judgment rules control in ERISA cases.” Cooper v. Hewlett-Packard Co.,
A.
Plaintiff contends that the plan administrator should not have used the Mihalik criteria to determine medical necessity because the criteria were not mentioned in the Plan’s definition of medical necessity. Plaintiff further contends that the Mihalik criteria are inconsistent with the Plan’s terms because they are not consistent with “nationally recognized standards of medical practice.” We disagree.
First, the fact that the Plan does not expressly incorporate the Mihalik criteria does not indicate that their use in the claims adjudication procedure was improper. Instead, the Mihalik criteria simply provide Defendant’s claims adjudicators guidance in carrying out the terms of the Plan. Importantly, nothing in the Mihalik criteria’s definition of medical necessity is inconsistent with the Plan’s terms as the following table indicates:
What the Mihalik criteria add to the Plan definition is additional guidance for determining medical necessity in specific sitúa-tions. But even these additions map onto the Plan definition of medical necessity:
The Mihalik criteria further list a number of specific treatment initiation and treatment continuation criteria, all of which fit comfortably within the Plan’s definition of medically necessary. For example, the Mihalik criteria instruct a physician reviewing a request for mental health treatment to consider, among other things, “[w]ith treatment at this level, the individual is capable of controlling behaviors and/or seeking professional help when not in a structured treatment setting[],” and “[i]f the services being proposed have been attempted previously without significant therapeutic benefit, there is a clinically credible rationale for why those same services could be effective now.” These questions simply add context to the Plan’s definition of medically necessary.
Importantly, “an insurer’s reliance on a pre-published plan to determine what is ‘medically necessary’ can be reasonable under ERISA.” Quality Infusion Care Inc. v. Aetna Life Ins. Co.,
Put another way, we hold that an insurer is permitted to rely on medical review criteria to make coverage decisions so long as those criteria are not inconsistent with the plan’s terms.
Second, Plaintiff is incorrect that the Mihalik criteria do not represent nationally recognized standards of medical practice. Instead, the record indicates that the Mi-halik criteria are intended to represent nationally recognized standards of medical practice, were created in consultation with a group of doctors and health professionals from across the country, and were based on extensive medical literature. Plaintiff does not point to any record evidence indicating that the Mihalik criteria do not represent a nationally recognized standard of medical practice. Plaintiff additionally argues that Defendant should have used the guidelines created by the American Psychiatric Association. But Plaintiff does not contend that the Plan documents or ERISA require the use of any particular representation of the national standard of care. Accordingly, because the record supports finding that the Mihalik criteria are in line with national standards, the district court did not err in finding that Defendant’s consideration of the Mihalik criteria was proper.
B.
The parties next dispute whether Plaintiffs continued partial hospitalization was medically necessary. The question of whether a proposed treatment is medically necessary is a factual determination and therefore reviewed for abuse of discretion. Meditrust Fin. Servs.,
Plaintiff contends that the district court erred in finding that Defendant’s medical necessity determination was not an abuse of discretion because “[t]he treatment records clearly demonstrated that Ariana’s PHP treatment at Avalon Hills was medically necessary because she exhibited self-harm as well as urges to engage in risky behavior severely detrimental to her health.” We disagree.
Two medical reviewers considered Plaintiffs claim and concluded that continued partial hospitalization was not medically necessary. The two reviewing doctors agreed that Plaintiff was not an imminent danger to herself or others and that Plaintiff was medically stable. Doctor Prabhu further stated that Plaintiff could have received effective outpatient (as opposed to partial hospitalization) care. These conclusions were supported by substantial record evidence. Both doctors spoke directly with Plaintiffs treating physicians and reviewed relevant medical literature before making their coverage decisions.
Plaintiff disputes the reviewing doctor’s conclusions, pointing to record evidence that she was “really not progressing very well,” was “at [a] high risk of relapse,” and
By the time that Plaintiff was denied continued coverage, the reviewing doctors found that her condition had stabilized. Indeed, both reviewing doctors noted that Plaintiff had improved enough during her course of treatment to no longer be an imminent danger to herself or others. Doctor Prabhu noted that Plaintiff had “made progress about her self harm (still has the thoughts and urges but doesn’t anymore).” Doctor Hartman agreed, noting that “[t]he patient denies suicidal ideation/homicidal ideation (SI/HI) or psychosis.” During her time at Avalon, Plaintiff also reached a healthy weight. Based on this improvement, Doctor Prabhu concluded that Plaintiff “appear[ed] to be at her baseline behaviors.” Additionally, both doctors agreed that Plaintiffs progress in partial hospitalization treatment- had stalled because Plaintiff was not invested in her course of treatment.
Moreover, that Plaintiffs doctors disagreed with Defendant’s assessment of the proper level of care for Plaintiffs condition does not create a genuine issue of material fact. See, e.g., Anderson,
It was not unreasonable on this record to conclude that Plaintiff could be treated with a less costly, equally effective outpatient treatment. Because the plan’s definition of medical necessity requires that the treatment not be “more costly than an alternative service or sequence of services at least as likely to produce equivalent therapeutic or diagnostic results as to the diagnosis or treatment of the patients sickness or bodily injury!,]” substantial evidence supports Defendant’s finding that further treatment at Avalon Hills was not medically necessary.
IV.
We have considered Plaintiffs remaining arguments and find them without merit. The district court’s order granting Defendant summary judgment is AFFIRMED.
Notes
. Texas has also adopted administrative rules that are substantively identical to the Insurance Code. See 28 Tex. Admin. Code §§ 3.1201-3.1203.
. Plaintiff argues that the court should reexamine Pierre. Nonetheless, Plaintiff concedes that "one panel of this Court cannot overrule another, and that the ultimate resolution of the issue in this Court would likely require en banc consideration.” Plaintiff is not alone in her criticism of Pierre; indeed, Pierre has been rejected by most other Circuit Courts. Moreover, Pierre is likely to become more important as more states adopt anti-discretionary clause statutes. Under Firestone, courts defer to discretionary clauses in plan documents. Until states began banning discretionary clauses, Pierre's impact was limited because this court was likely to defer to a plan admin
. This court also considers a plan administrator's conflict of interest in assessing whether the plan administrator abused its discretion. Truitt,
Concurrence Opinion
joined by EDWARD C. PRADO and STEPHEN A. HIGGINSON, Circuit Judges, specially concurring:
As any sports fan dismayed that instant replay did not overturn a blown call learns, it is difficult to overcome a deferential standard of review.
Pierre did not have the benefit of this robust ease law. It was writing largely on a blank slate as only one other circuit (the Fourth) had at that time ruled on the standard to apply to factual determinations in ERISA cases when the plan did not delegate discretion to the administrator.
Pierre turned largely on an interpretation of a then-recent Supreme Court case, Firestone Tire & Rubber Co. v. Bruch,
Apart from Glenn’s implication that Pierre’s deference is not warranted, one of the primary reasons we cited for that deference — that trust law draws a distinction between judicial review of a trustee’s legal and factual decisions — has not withstood scrutiny. Trust law traditionally provided different standards of review based on whether a decision was mandatory or discretionary according to the trust document, not whether that decision was factual or legal. Ramsey,
Pierre’s analogy to the limited factual review appellate courts give trial courts and administrative agencies has also been questioned. That deference is to a neutral factfinder, whereas ERISA plan administrators often have conflicts of interest as many both decide and pay claims. Perez v. Aetna Life Ins. Co.,
Pierre also voiced concerns about courts’ ability to conduct de novo review of factual determinations, believing that it would be a “difficult and uncertain exercise on a cold record.”
The pillars supporting Pierre may have thus eroded. This question concerning the standard of review for ERISA cases is not headline-grabbing. But it is one that potentially affects the millions of Fifth Circuit residents who rely on ERISA plans for their medical care and retirement security. When decisions by those plans are challenged in court, Pierre matters now much more than it did. Texas’s anti-delegation statute (assuming it is not preempted) means that the abuse of discretion standard is no longer dictated for most cases by plan provisions vesting discretion, but by Pierre’s default deference. And the circuit split on that default standard undermines the uniform treatment of ERISA plans — sometimes the same plan offered by employers in different states — that the federal statute seeks to achieve. Gobeille v. Liberty Mut. Ins. Co., — U.S. -,
The default standard for judicial review of fact-based ERISA decisions was a significant enough question for two Justices to vote to review Pierre after it created a split with the Fourth Circuit. Pierre,
. See National Football League, Official Playing Rules of the National Football League, R. 15, § 2, art. 3 (2016) (“A decision will be reversed only when the Referee has clear and obvious visual evidence available that warrants the change.”); see also Major League Baseball, Official Baseball Rules, R. 8.02(c) (2016).
. Other circuits place considerable weight on the broad language Firestone used when describing review of an administrator's factual decision: "we hold that a denial of benefits ... is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone,
. In re Tex. Grand Prairie Hotel Realty, LLC,