### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 18

- 20700

ARIANA M.,

Plaintiff

- Appellant

v. HUMANA HEALTH PLAN OF TEXAS, INCORPORATED,

Defendant

- Appellee

Appeal from the United States District Court for the Southern District of Texas U.S.D.C. No. 4:14

- CV

- 3206

Before CLEMENT, HAYNES, and WILLETT, Circuit Judges

. PER CURIAM: * Background This is the second time that this case has reached the Fifth Circuit. Our previous opinion in Ariana M. v. Humana Health Plan of Texas, Inc. , 884 F.3d 246 (5th Cir. 2018) (en banc) (“ Ariana M. I ”) , and the district court’s Memorandum and Opinion from which plaintiff Ariana M. now appeals discuss the case’s facts at length, so we will provide only a brief summary.

* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C I R . R. 47.5.4. United States C ourt of Appeals Fifth Circuit 

### FILED November 8, 2019 Lyle W. Cayce Clerk Case: 18-20700 Document: 00515193275 Page: 1 Date Filed: 11/08/2019No. 18

- 20700

2 Ariana was partially hospitalized to treat an eating disord er

. Her health

plan administrator, Humana Health Plan of Texas, Inc., approved benefits for 49 days o f partial hospitalization, but denied benefits for additional days after concluding that Ariana’s continued hospitalization was not “medically necessary.” Despite Humana’s decision, Ariana remained partially hospitalized for another 10 6 days. Ariana then sued Humana under 29 U.S.C. § 1132(a)(1)(B) , alleging that Humana wrongfully denied her benefits for the additional 10 6 days

. The district court concluded that Humana had not abused its discretion in denying coverage for continued hospitalization and granted Humana summary judgment. After a panel of this court affirmed the district court’s judgment,
th is court agreed to rehear the ca se en banc. See Ariana M. v. Humana Health Plan of Tex., Inc. , 869 F.3d 354 (5th Cir. 2017)

. A majority of the en banc court concluded that the district court should have reviewed Humana’s denial of benefits de novo, so the court vacated the district cour t’s judgment and remanded the case for the district court to review it under the proper standard. See Ariana M. I

. , 884 F.3d at 257

. On remand, the district court reviewed the denial of benefits de novo , concluded that Humana had not erred , and granted Hu mana summary judgment . Ariana nonetheless filed a petition for attorneys’ fees under 2 9 U.S.C. § 1132(g) , arguing that her success in convincing this court to change the standard of review and remand her case to the district court entitled her to attorneys ’ fees regardless of whether she ultimately prevailed on her claim for benefits. The district court denied her fee petition. Ariana now appeals both the grant of summary judgment and the denial of attorneys’ fees. Concluding that the district court did no t err in either respect, we AFFIRM its judgment. Case: 18-20700 Document: 00515193275 Page: 2 Date Filed: 11/08/2019No. 18

- 20700

3 Analysis We review the district court’s de novo review of the claims administrator’s factual findings de novo. 1 Green v. Life Ins. Co. of N. Am. , 754 F.3d 324, 329 (5th Cir. 2014); Ariana M. I , 884 F.3d at 256. We review the denial of Ariana’s fee petition for abuse of discretion. N. Cyprus Med. Ctr. Operating Co. v. Aetna Life Ins. Co. , 898 F.3d 461, 485 (5th Cir. 2018). Under the Humana plan, Ariana was eligible for partial hospitalization so long as it w as “medically necessary.” To assess medical necessity, Humana relie d on the “Mihalik criteria,” part of a set of guidelines published by a healthcare consulting firm. 2 A fter two board

- certified psychiatrists reviewed Ariana’s case and found several required criteria absent during the claimed treatment period , Humana found that partial hospitalization was not medically necessary for the final 106 c laimed days. After revie wing the record, we find that at least one of the Mihalik criteria had no factual support

— an “individualized plan” that “specifies” “time frames” and “anticipated outcomes.” 3 As such, Humana did not err in finding that the final 106 days of Ariana’s partia l hospitalization were medically

un necessary, and the district court correctly entered judgment for Humana

. Given that this outcome

- determinative finding is undisputed, we need not address whether the o ther Mihalik criteria were met

.

1 The district court had federal

- question jurisdiction because this ERISA suit arises under 29 U.S.C. § 1132(a)(1)(B). Ariana appeals from a final judgment, so we have appellate jurisdiction under 28 U.S.C. § 1291.
2 Ariana objects to Humana’ s use of the Mihalik criteria. The Humana plan requires that Humana assess medical necessity using nationally recognized standards of medical practice. But Ariana has not identified any evidence that the Mihalik criteria are inconsistent with these standar ds

. 3 In fact, Ariana’s doctors affirmatively stated that there were “no specifics on [the] time frame” of her partial hospitalization , and the record shows that her entire treatment plan suffered from a general lack of specificity

. Case: 18-20700 Document: 00515193275 Page: 3 Date Filed: 11/08/2019No. 18

- 20700

4 The fee petition prese nts a somewhat more challenging question. In an ERISA suit like this one, the district court “in its discretion may allow a reasonable attorney’s fee and costs of action to either party.” 2 9 U.S.C. § 1132(g) . The Supreme Court has held that, though a fee claimant need not qualify as a “prevailing party” to receive a fee award under this statute, the fee claimant must have “achieved some degree of success on the merits.” Hardt v. Reliance Standard Life Ins. Co

. , 560 U.S. 242, 244 (2010) (cleaned up). This requires more than “ trivial success on the merits or a purely procedural victory, ” but does not require “ lengthy inquiry into the question of whether a particular party ’ s success was substantial or occurred on a central issue.” Id. at 255 (cleaned up). The Supreme Court expressly declined to decide whether “a remand order, without more, constitutes ‘some success on the merits.’” Id.
at 256. We conclude that the district court did not abuse its discretion in den ying Ariana’s fee motion. While an error of law does constitute an abuse of discretion, LifeCare Mgmt. Servs. LLC v. Ins. Mgmt. Adm’rs Inc. , 703 F.3d 835, 846 (5th Cir. 2013), we see no such error here. The district court described and applied the “some su ccess on the merits” standard from Hardt

. It noted that, unlike Hardt , the remand order here included no comment from the remanding court on the strength of the remanded claim. S ecuring a change in the standard of judicial review of Humana’s factual determ inations is certainly a procedural

success , but it’s not success on the merits of Ariana’s benefits claim. See Ariana
M. I , 884 F.3d at 257 (“A different standard of review will sometimes lead to a different outcome, but there will also be many cases in which the result would be the same with deference or without it. We give no opinion on which is the case here . . . .”). In reaching this conclusion, we express no opinion on the First Circuit’s decision in Gross v. Sun Life Assurance Co. of Canada , 763 F. 3d 73 (1st Cir. Case: 18-20700 Document: 00515193275 Page: 4 Date Filed: 11/08/2019No. 18

- 20700

5 2014) . In Gross , a divided panel held that the plaintiff had achieved “some success on the merits” when a remand order provided her “some meaningful benefit” by favorably changing the standard o f review. Id. at 79

. The court noted that, tho ugh its o rder “refrained from expressing any view on the ultimate merits of [ Gross’s ] claim,” “the change in the standard of review has strengthened Gross’s claim” by “increase[ing] the likelihood of a favorable benefits determination .” Id

. But the court a lso noted that the administrative record was “inadequate to permit [the court’s] de novo judgment on [plaintiff’s] entitlement to benefits.” Id. at 75. The First Circuit “faulted [the plan administrator] for failing to provide its independent medical consu ltant with important background about [plaintiff’s] circumstances on a critical surveillance day and for disregarding the consultant’s observation” that the plaintiff should be reexamined. Id. at 76. Here, by contrast, the en banc court passed no judgmen t on the process Humana used to evaluate Ariana’s claim or whether Humana had failed to provide its independent reviewers with sufficient evidence

. Even if the First Circuit was correct in finding “some success on the merits” in Gross , Ariana’s case is di stinguishable

. We therefore AFFIRM the judgment of the district court. Case: 18-20700 Document: 00515193275 Page: 5 Date Filed: 11/08/2019