IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-50276

KATHERINE P., 

 Plaintiff - Appellant

v.

HUMANA HEALTH PLAN, INCORPORATED, 

 Defendant - Appellee

Appeal from the United States District Court

for the Western District of Texas

Before KING, COSTA, and HO, Circuit Judges.

JAMES C. HO, Circuit Judge:

To treat her eating disorder, Katherine P. received partial 

hospitalization treatment—intensive treatment in a hospital setting, but 

without an overnight hospital stay—at Oliver-Pyatt Centers for nearly three

months. Her insurer, Humana, agreed to pay for the first twelve days of her 

treatment. But it denied coverage for the remainder, concluding that partial 

hospitalization was not “medically necessary” as required for coverage under 

her health insurance plan. Katherine P. disagreed with Humana’s coverage 

decision and brought this action under the Employee Retirement Income 

Security Act (ERISA), 29 U.S.C. § 1132(a)(1)(B). On cross-motions for 

United States Court of Appeals

Fifth Circuit

FILED

May 14, 2020

Lyle W. Cayce

Clerk

 Case: 19-50276 Document: 00515416064 Page: 1 Date Filed: 05/14/2020
No. 19-50276

2

summary judgment, the magistrate recommended that the district court enter 

judgment for Humana. The district court accepted the recommendation.

We review ERISA claims such as this one under the framework set forth 

in Ariana M. v. Humana Health Plan of Texas, Inc., 884 F.3d 246 (5th Cir. 

2018) (en banc). That is, we limit our review of the coverage decision to the 

administrative record, and we apply de novo review unless the insurance plan 

“lawfully delegates discretionary authority to the plan administrator.” See id.

at 247, 256. Since neither party seriously contends that there was such a 

lawful delegation, de novo review is proper.1

There is an open question whether it is appropriate to resolve ERISA 

claims subject to de novo review on summary judgment, or whether the district 

court should conduct a bench trial. See Koch v. Metro. Life Ins. Co., 425 F. 

Supp. 3d 741, 746–47 (N.D. Tex. 2019) (canvassing the different approaches). 

But the parties assumed that summary judgment was proper here. So we do 

not reach the issue, instead deciding this appeal using normal summary 

judgment standards. See Khoury v. Grp. Health Plan, Inc., 615 F.3d 946, 951 

n.4 (8th Cir. 2010) (“We decline to decide the propriety of the use of summary 

judgment procedures in this case because the issue was not raised by the 

parties.”). Under those standards, there is a genuine dispute of material fact 

precluding summary judgment. Accordingly, we vacate and remand for further 

proceedings.

I.

The central dispute between the parties is whether further partial

hospitalization was “medically necessary” for Katherine P., as her insurance 

1 Humana says in a footnote that the court should review its decision for an abuse of 

discretion because ERISA preempts Texas’s discretionary clause ban. It does not say why, 

and so has waived the issue. See Savoie v. Huntington Ingalls, Inc., 824 F.3d 468, 469 (5th 

Cir. 2016) (per curiam).

 Case: 19-50276 Document: 00515416064 Page: 2 Date Filed: 05/14/2020
No. 19-50276

3

plan defines the term. Under the plan, “medically necessary” means “health 

care services that a health care practitioner exercising prudent clinical 

judgment would provide” that are “[i]n accordance with nationally recognized 

standards of medical practice,” “clinically appropriate,” “[n]ot primarily for the 

convenience of the patient” or her providers, and “[n]ot more costly than an 

alternative” that would be just as effective. “Medically necessary” services 

must also have a grounding in “standards that are based on credible scientific 

evidence.”

Here, Humana’s reviewers used the Mihalik Criteria to evaluate 

Katherine P.’s claim. The criteria provide four factors for determining if 

partial hospitalization is medically necessary. Per the criteria, partial 

hospitalization is medically necessary if a patient meets the first two factors 

(denominated ED.PM.1 and ED.PM.2) and either one of the last two 

(denominated ED.PM.3 and ED.PM.4).

The reviewers concluded that Katherine P. failed ED.PM.3 and 

ED.PM.4. ED.PM.3 requires that the patient have “experienced a recent 

significant, though not necessarily acute, decline in weight to levels 

substantially below healthy body weight which persists despite appropriate 

treatment at less intense levels of care.” ED.PM.4 requires the patient to 

satisfy three conditions:

ED.PM.4.1: That she has “longstanding difficulties [involving

eating disorder behavior] which place the [patient] at increased 

risk for medical complications, significant weight reduction or use 

of services at a higher level of care;”

ED.PM.4.2: That “[t]reatment at a less intense level of care has 

been unsuccessful in controlling eating, purging and compulsive 

exercise behavior;”

 Case: 19-50276 Document: 00515416064 Page: 3 Date Filed: 05/14/2020
No. 19-50276

4

ED.PM.4.3: That “[t]he structure Partial Hospitalization can 

provide can reduce these behaviors.”

The district court granted Humana summary judgment, adopting the 

magistrate’s conclusion that Katherine P. failed ED.PM.3 and the ED.PM.4.2 

sub-criteria. We vacate and remand.

II.

“We review a district court’s grant of summary judgment in ERISA cases 

de novo, applying the same standards as the district court.” Dialysis Newco, 

Inc. v. Cmty. Health Sys. Grp. Health Plan, 938 F.3d 246, 250 (5th Cir. 2019). 

“Summary judgment is appropriate ‘if the movant shows that there is no 

genuine dispute as to any material fact and the movant is entitled to judgment 

as a matter of law.’” Nichols v. Reliance Standard Life Ins. Co., 924 F.3d 802, 

808 (5th Cir. 2019) (quoting FED. R. CIV. P. 56(a)).

Here, Katherine P. argues, inter alia, that the district court erred in 

disregarding evidence that Humana’s reviewers were conflicted and in using 

the Mihalik Criteria to evaluate her claim. We do not address those issues, 

however, because the entry of summary judgment was improper for a different 

reason—namely, that the administrative record shows that there is a genuine

dispute about whether Katherine P. met the ED.PM.4.2 sub-criteria.

To reiterate, ED.PM.4.2 requires that a patient show that “[t]reatment 

at a less intense level of care has been unsuccessful in controlling” her eating 

disorder. And there is evidence in the administrative record that suggests

Katherine P. satisfied that requirement. For example, in her last appeal to 

Humana, Katherine P. provided a declaration describing her history of failed 

treatment. In it, she listed past failed treatment regimens, including

outpatient treatment. Her mother likewise provided a declaration making 

essentially the same point.

 Case: 19-50276 Document: 00515416064 Page: 4 Date Filed: 05/14/2020
No. 19-50276

5

Furthermore, Katherine P.’s physicians said she was “unable to follow a 

weight gain meal plan and to abstain from symptoms of purging and restricting 

while she was at a lower level of care.” And while the opinions of Katherine 

P.’s treating physicians do not receive “special weight,” Black & Decker 

Disability Plan v. Nord, 538 U.S. 822, 834 (2003), they are competent summary 

judgment evidence.

That is not to say that all the evidence indicates that Katherine P. met 

the ED.PM.4.2 criteria. Her same declaration, for example, shows that she 

participated in an eight-week intensive outpatient program in late 2010 that 

failed due to external trauma—not because the treatment was ineffective. And 

Humana noted that the 2010 treatment was her most recent course of 

treatment prior to her admittance to Oliver-Pyatt about a year and a half later. 

A factfinder could therefore conclude that Katherine P. failed to show that she 

met ED.PM.4.2. See Anderson v. Cytec Indus., Inc., 619 F.3d 505, 512–13 (5th 

Cir. 2010) (noting that the claimant bears the burden of proof).

But the weighing of evidence is for the district court on remand. All that 

matters here is that there is a “dispute[] over facts that might affect the 

outcome of the suit.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 

Summary judgment for Humana was therefore inappropriate.

* * *

We limit our ruling to ED.PM.4.2. On remand, the district court may, in

its discretion, decide to treat as established other material facts it determined 

in ruling on the summary judgment motions. See FED. R. CIV. P. 56(g); 

Powell v. Radkins, 506 F.2d 763, 765 (5th Cir. 1975). And while we leave the 

exact procedures to the district court’s sound discretion, there is authority that 

it need not conduct a traditional trial but rather just review the administrative 

record and make findings of fact and conclusions of law. See Kearney v. 

 Case: 19-50276 Document: 00515416064 Page: 5 Date Filed: 05/14/2020
No. 19-50276

6

Standard Ins. Co., 175 F.3d 1084, 1094–95 (9th Cir. 1999) (en banc) (discussing 

that procedure).

We vacate and remand for proceedings consistent with this opinion.

 Case: 19-50276 Document: 00515416064 Page: 6 Date Filed: 05/14/2020