### 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: T o 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 month s
. Her insurer, Humana , ag reed to pay for the first twelve days of her treatment

. B ut 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: 05/14/2020No. 19

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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 Tex as , Inc. , 884 F.3d 246 (5th Cir. 2018) (en banc) . T hat 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, instea d 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 n ot raised by the parties.”). U nder those standards, there is a genuine dispute of material fact precluding summary judgment . Accordingly, we vacate and remand for further proceeding s. I. The central dispute between the parties is whether further partial hospitalization was “medically necessary” for Katherine P. , as her in surance

1 Humana says in a footnote that the court should review its decisi on 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: 05/14/2020No. 19

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3 plan defines the term

. Under the plan , “medically necessary” means “health care services that a health care pract itioner 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 mor e 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 Katherin e P.’s claim. The criteria provide four factors for determining if partial hospitalization is medically necessary. Per the c riteria, 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 )

. T he 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 ha s “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 unsuccessfu l in controlling eating, purging and compulsive exercise behavior;” Case: 19-50276 Document: 00515416064 Page: 3 Date Filed: 05/14/2020No. 19

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4 ED.PM.4.3: T hat “[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

. I I
. “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. H

ealth 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. Relianc e Standard Life Ins. Co. , 924 F.3d 802, 808 (5th Cir. 2019) (quoting F ED

. R. C IV

. 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

. W e do not address those issues , however , because the entry of summary judgment was improper for a different

reason

— namely, that the administrative re cord 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 di sorder. And th ere 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 liste d 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: 05/14/2020No. 19

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5 Furthermore, Katherine P.’s physicians said she was “unable to follow a weight gain meal plan and to abstain fr om 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 201 0 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 the refore conclude that Katherine P. failed to show that she met ED.PM.4.2. See Anderson v. Cytec Indus., Inc. , 619 F.3d 505, 51 2

– 1 3 (5th Cir. 2010) (noting that the claimant bears the burden of proof). But the weighing of evidence is for the district court on remand. A ll that mat t ers 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). S ummary judgment for Humana was therefore inappropriate. * * * W e 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 motion s
. See F ED

. R. C IV

. P. 56(g); Powell v. Radkins , 506 F.2d 763, 765 (5 th 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: 05/14/2020No. 19

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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